Universit de Neuchtel Recueil de travaux publis par la Facult des Lettres et Sciences Humaines Cinquante-cinquime fascicule

Droit, religion et socit dans le Code Thodosien

Troisimes Journes dEtude sur le Code Thodosien Neuchtel, 15-17 fvrier 2007

sous la direction de

JEAN-JACQUES AUBERT
et

PHILIPPE BLANCHARD

Universit de Neuchtel Facult des Lettres et Sciences Humaines Librairie Droz S.A. Genve 2009

ISBN 978-2-8399-0565-7 ISSN 1660-0460 Tous droits de reproduction, mme partielle, et de traduction rservs pour tous les pays Copyright by Universit de Neuchtel 2009

Sommaire
Remerciements ..............................................................................................ix Auteurs des contributions ...........................................................................xi-xii Abrviations ...................................................................................................xiii-xv Prface.............................................................................................................xvii-xviii I. Introduction Paul J. du Plessis The Structure of the Theodosian Code..........................................................3-17 *** II. Christianisme et judasme Lellia Cracco Ruggini Il Codice Teodosiano e le eresie .......................................................................21-37 Mara Victoria Escribano Pao The Social Exclusion of Heretics in Codex Theodosianus XVI................39-66 Iole Fargnoli La duplice conservazione di un testo normativo in tema di eresia: summus error o scelta consapevole dei compilatori? .................................67-85 Philippe Blaudeau Puissance ecclsiale, puissance sociale: le sige alexandrin au prisme du Code Thodosien et des Constitutions Sirmondiennes ....................87-110 Giovanni de Bonfils Brevi cenni sul Patriarca degli ebrei...........................................................111-128 Jos Luis Caizar Palacios La utilidad poltica y social del vocabulario religioso en la legislacin del Teodosiano...............................................................................129-146 ***

vi III. La famille Paola Ombretta Cuneo Le mariage dans le Code Thodosien et dans la socit de lAntiquit tardive..............................................................................................................149-158 Patrick Laurence Les msalliances dans le Code Thodosien....................................................159-176 *** IV. Catgories et relations sociales Filippo Carl Tassazione sociale ed aristocrazia senatoria: la gleba senatus...................179-211 Lucietta Di Paola I curiales nella legislazione di Valentiniano e Valente ..............................213-227 Sylvie Crogiez-Ptrequin Pierre Jaillette Images de la dsertion et des dserteurs dans le Code Thodosien ..........229-243 Aude Laquerrire-Lacroix La vicinitas lpreuve du droit: la mutation des iura vicinitatis dans lAntiquit tardive ................................................................................245-257 *** V. Le monde du travail Aleksandr Koptev The Colonate in the Theodosian Code and its Interpretation in the Breviary of Alaric..............................................................................................261-285 Pasquale Rosafio Il peculio dei coloni nella tarda antichit ..................................................287-302 Christel Freu Dockers et portefaix du monde romain: rflexions partir du Code Thodosien 14.22.1 concernant le corpus des saccarii du Portus Romanus............................................................................................303-326

vii Chantal Vogler Les mdecins dans le Code Thodosien 13.3 et la Relatio 27 de Symmaque.................................................................................................327-373 *** VI. Entre deux mondes Soazick Kerneis Francus ciuis, miles Romanus: les barbares de lEmpire dans le Code Thodosien ..................................................................................377-399 Andrea Lovato Les actes juridiques privs, entre lgitimit et usurpation .....................401-408 *** VII. Conclusions Giuliano Crif Codex Theodosianus e storia sociale in dissertazioni di storia del diritto romano e nei lavori dellAccademia Romanistica Costantiniana .................................................................................................411-426 Francesco Amarelli Codex Theodosianus e scientia iuris ..................................................................427-432 *** Index des sources................................................................................................433-437 gnral .......................................................................................................439-445

The Colonate in the Theodosian Code and its Interpretation in the Breviary of Alaric*
ALEKSANDR KOPTEV
The word colonate represents the legal position of a colonus tied to his domicile as seen from the point of view of the Eastern or Western imperial chancellery. Traditional concepts consider the Roman colonate a social or legal institution of late Antiquity, but even if widely discussed, its origins are not clear yet. It seems obvious that as an institution of public law, the colonate was formed in late Antiquity, while coloni as agricultural labourers were known long before that time.1 Under the early Empire, coloni had no special social or legal status, and legally they were considered tenant farmers (CIust. 5.62.8 [225]: coloni, id est conductores praediorum) whose relationships with the landowner were regulated by a private-law contract (locatio-conductio). The real position of the coloni, especially in the provinces, however, differed from the favourable legal position of a conductor, because most of them had neither Roman nor Latin civil status, nor a contract with the landowner, but were long-term leaseholders whose relationships with their landowners were determined by local customs (consuetudines) or rules shaped by the Roman administration.2 The
I gratefully acknowledge the help of Prof. Jean-Jacques Aubert in preparing this paper for publication, and I thank Ms Megumi Ohsumi for improving my English. I alone bear responsibility for all remaining imperfections. 1 Johne 1986, 21-27 shows the essential difference between the concepts of colonus and colonate. 2 Some definitions show that the word colonus had a more common meaning than farmer-tenant in legal texts. Cf. August., De civ. D. 10.1 (CCSL 47.272): Dicimur enim colere etiam homines, quos honorifica vel recordatione vel praesentia frequentamus. Nec solum ea, quibus nos religiosa humanitate subicimus, sed quaedam etiam, quae subiecta sunt nobis, perhibentur coli. Nam ex hoc verbo et agricolae et coloni et incolae vocantur, et ipsos deos non ob aliud appellant caelicolas, nisi quod caelum colant, non utique venerando, sed inhabitando, tamquam caeli quosdam colonos; non sicut appellantur coloni, qui condicionem debent genitali solo, propter agriculturam sub dominio possessorum, sed sicut ait quidam Latini eloquii magnus auctor: Urbs antiqua fuit, Tyrii tenuere coloni (Verg. Aen. 1.12). Ab incolendo enim colonos vocavit, non agricultura. Hinc et civitates a maioribus civitatibus velut populorum examinibus conditae coloniae nuncupantur; Isid., Etym. 9.4: Coloni sunt cultores advenae, dicti a cultura agri; sunt enim aliunde venientes atque alienum agrum locatum tenentes ac debentes conditionem genitali solo propter agriculturam sub dominio possessoris pro eo quod locatus est fundus. NIust. 162.2 (539): (...) tales homines velle incolas praediorum cultores agrorum manere, utpote ibi genitos: hoc enim sibi vult
*

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Constitutio Antoniniana of 212 seems to provide the legal background unifying the different statuses inside the Roman citizenship. The relationships of landowners with their coloni were conditioned by the new legal situation, although we do not know exactly which legal consequences it had.3 The maintenance of the locatioconductio in the late antique farming and its role in the formation of the colonate has continued to engage scholars in discussions.4 Of course, the legal status of coloni and their real position affected each other, but the changes were made via the entire legal system rather than directly. The peculiarity of the colonate is that the notion is mainly known from the late imperial legislation collected in the Theodosian and Justinianic Codes and the new laws (novellae) issued after them. Actually, the imperial constitutions tell us not of colonate but of ius colonatus.5 It seems to be one of the reasons why Jean-Michel Carri has recently tried to define the notion more precisely, while questioning the adequacy of the traditional concept of the colonate of the Later Roman Empire.6 Rather than enslavement of agricultural labourers supported by legal and administrative tools, the ius colonatus was a conventional notion indicating a new legal reality developing already during the third century but concretizing in post-classical law after Diocletians reforms of the Roman Empire. A practical background for this ius, which had long been more like an administrative rule than a real law, was the new fiscal system, while the legal consequences of its use became apparent not earlier than the second half of the fourth century or even later. The late antique codifications of Theodosius II and Justinian had great importance when new legal phenomena were fixed and new rules of law were produced. Therefore, during the period of late Antiquity, the legal scholars view
coloni appellatio. Cf. Carri 1983, 226-28; Johne 1988, 308-21; Cracco Ruggini 1990, 199-201; Giliberti 1999, 72-76. 3 See Panitschek 1990, 137-54. 4 See, for instance, Rosafio 1991, 237-81; Johne 1993, 64-99; Vera 1997, 185-224. 5 On the word colonate, see CTh. 12.1.33 (342): privilegia rei privatae nostrae colonatus iure sectantes; CTh. 14.18.1 (= CIust. 11.26.1, 382): eorum vero, quos natalium sola libertas prosequatur, colonatu perpetuo fulciatur; CTh. 5.6.3 (409): ut omnes sciant susceptos non alio iure quam colonatus apud se futuros nullique licere ex hoc genere colonorum ab eo, cui semel adtributi fuerint, vel fraude aliquem abducere vel fugientem suscipere; NVal. 31.1 (451): is eum vindicet iure colonario serviturum, penes quem a die primae fugae triginta annorum posteriora tempora concluduntur; Vict. Vitensis, Hist.Persecut. 3.20 (MGH AA 3.45); NIust. (app.) 9.4 (558); CTh. 10.20.10 (= CIust. 11.8.7, 380): originaria seu colonaria possessionis alienae (= iuri agrorum debitas personas); August., Ep. 24*.1.6 (CSEL 88.126127): possessionis dominus, unde colonatus originem trahit; NVal. 31.6 (451): in eorum iure et dominio, apud quos creati sunt vel creantur, colonario nomine perseverant; nexus, sicut dictum est, colonarius teneat semper obnoxious; interpretatio NVal. 35 (452): mancipia originaria vel colonaria; NMai. 7 pr. (458): colonarum se ancillarumque coniunctione polluerent; Sidon.Apoll., Ep. 5.19.1-2: (...) cliens factus e tributario plebeam potius incipiat habere personam quam colonariam; CIust. 8.51.3/1.4.24 (529): nulla macula vel servitutis vel adscripticiae aut colonariae conditionis imbuti; CIust. 11.48.23.1 (531): cum autem Anastasiana lex homines qui per triginta annos colonaria detenti sunt condicione. See also Johne 1985, 97-100. 6 Carri 1982, 351-70; 1997, 75-150.

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about the colonate underwent most crucial changes and, consequently, the public opinion regarding its place in the social system of the Empire was likely to change from time to time. Consequently, the same can also be said of the Barbarian codes, where the norms of Roman law suffered from editing the Breviarium Alaricianum, especially, a collection of Roman laws compiled by the order of Alaric II, king of the Visigoths, in the year 506. Many texts in the Breviary of Alaric are combined with, or even replaced by, interpretations. According to the wide-spread understanding prevailing among nineteenthcentury scholars, it was King Alaric who ordered his lawyers to supply the texts of the Theodosian Code with their own comments or interpretations.7 Current Romanists like to think that the interpretations, although they are preserved in the Breviary of Alaric, had been created before it was issued, in the second half of the fifth century, i.e. between the issue of the Theodosian Code (438) and the lex Romana Visigothorum (506).8 However, this specification, if it is true, does not alter the situation in any case the late-fifth/early-sixth century was a very different epoch compared to the late-fourth/early-fifth century, before the codification of 429-438. The purpose of my paper is to show the discrepancy between the image of the colonate presented in the constitutions of the Theodosian Code, and that of the colonate described by the interpretations of the Breviary of Alaric.9 The purpose of interpretationes was to elucidate ancient Roman enactments. Imperial constitutions were frequently written in abstract and florid language; the interpreter aimed at rephrasing the text more clearly while explaining every ambiguity. Another purpose was to adapt the text for practical use and to clarify it not only for lawyers, but also for ordinary citizens. Consequently modern readers tend to follow the interpretation rather than the original text. If the meaning of a law is unclear or if a discrepancy between the original text and its interpretation remains, the latter is often more readily accepted. Modern readers sometimes assume that the lawyer of 506 was more familiar with the legal situation of the time for the simple reason that he lived much closer in time. Looking back at late Antiquity, we often perceive it as a single, uniform period, as if there was not much change from the time of Constantine the Great to the epoch of Theodosius II. They were actually very different historical periods, with drastic shifts in public institutions and legal systems. The same can be said of the time of the Breviary of Alaric and its interpretationes (ca. 506). As W. Kunkel

For previous literature, cf. Wenger 1953, 557, n. 273. Cf. Wieacker 1935, 259-356; 2006, 216, 243, 247-48; Kunkel 2001, 194, 205-7; Kaser 1975, 41-42 and 45. For previous literature, cf. Wenger 1953, 557, n. 274. 9 A comparison of CTh. 5.17.1 (332) with its interpretation in the Breviarium Alaricianum and of CTh. 2.25.1 (325) with CIust. 3.38.11 demonstrates how the interpreted text could be removed from the original one.
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emphasized, these interpretations display a vulgarized way of thinking that was consistent to a small degree only with the spirit of Roman law.10 To illustrate my point, I have chosen to examine an excerpt from the fifth book of the Theodosian Code concerning coloni and to focus on constitutions dated to 332, 365 and 419, and on their interpretations in the Breviary of Alaric. Each constitution is part of a different title within the Theodosian Code. Actually a title, rather than a constitution, had the role of a law in the Code. The constitution of 332 is part of CTh. 5.17, De fugitivis colonis, inquilinis et servis, dealing with domicile and fiscal residence. The constitution of 419 belongs to CTh. 5.18, De inquilinis et colonis, which states the landowners rights when coloni were removed, or decided to move, from one estate to another (in analogy with citizens and incolae of cities). The constitution of 365 forms the title CTh. 5.19, Ne colonus inscio domino suum alienet peculium vel litem inferat ei civilem (A colonus shall not alienate his peculium or institute a civil suit without the knowledge of his master).11 Here the status of the colonus property was defined. Constitutions were often joined with a title, not in a complete form, but fragmentarily, because the Theodosian lawyers only chose from the original text the fragments useful to illustrate any idea or legal status. Therefore, the original sense of the fragment of 332 or 365 could essentially be quite different than what was given in a title constructed during the codification in 429-438. Sometimes this discrepancy creates some difficulty when translating a Latin or Greek text into modern languages, because each translation in itself is always a kind of interpretation.

I. CTh. 5.17.1 (= Brev. 5.9.1) (30 October 332)

The first of the three texts discussed here was addressed by Constantine to provincials:
Apud quemcumque colonus iuris alieni fuerit inventus, is non solum eundem origini suae restituat, verum super eodem capitationem temporis agnoscat. 1. Ipsos etiam colonos, qui fugam meditantur, in servilem condicionem ferro ligari conveniet, ut officia, quae liberis congruunt, merito servilis condemnationis compellantur implere. Any person in whose possession a colonus that belongs to another is found not only shall restore the aforesaid colonus to his birth status but also shall assume the capitation tax for this man for the time that he was with him. 1. Coloni also who meditate flight must be bound with chains and reduced to a servile condition, so that by virtue of their condemnation to slavery, they shall be compelled to fulfill the duties that befit freemen.

The preserved fragment consists of several statements: 1) an alien colonus who is found on the estate must be sent back to his original estate (eundem
Kunkel 2001, 194. The English translation of imperial constitutions from the Theodosian Code and their interpretations are borrowed from Pharr 1952, 115-17. The title is from the Breviary of Alaric (5.11).
11 10

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origine suae); 2) the person who accepted the colonus must compensate his tax debt (capitatio) for the period that he was with him; 3) the fugitive colonus must be penalized in the same way as fugitive slaves (ferro ligari); 4) after his return, the fugitive colonus must continue to fulfill his duties (officia [...] inplere); 5) the duties (officia) of a colonus correspond to the duties of free people (quae liberis congruunt). The expression origini suae suggests that the constitution refers to coloni originales, for whom the estate was considered an alternative of their civil origo. It is not clear to whom the compensation of the colonus capitatio was to be paid, to the landlord or the imperial treasury. Therefore, little can be said about the circumstances surrounding the issuing of this constitution and about the colonate. One point only is clear: coloni who had left an estate should be returned and punished.12 The current consensus is that the law of 332 neither introduced the fiscal obligation of coloni nor established their dependent status.13 Because the constitution provides the earliest evidence of a tie between coloni originales and the estate they lived on, many scholars most recently J.-M. Carri see the reason for this in the fiscal obligations of coloni resulting from Diocletians reform. 14 Boudewijn Sirks thinks that it was an agreement between those coloni who were forced to cultivate the land and their landlord who took upon himself to guarantee the payment of taxes.15 Miroslava Mircovic, following Fustel de Coulanges, depicts the coloni originales as debt-bound coloni, who were already dependent under the Principate and therefore called iuris alieni.16 However, Pasquale Rosafio convincingly argued that Mircovics view is inconsistent with the evidence about coloni in the Late Empire.17 Scholars mostly agree that the coloni in the constitution of 332 are free people, while only the interpretation regards them as slaves.18 Therefore, in the Code, the phrase colonus iuris alieni refers to a colonus who belongs to the estate of some other landowner, where he would be colonus originalis, as the constitution orders to restore him to his birth status (origini suae restituat).19 Iuris alieni indicates that another landowner

Goffart 1974, 71-72, assumes that the law of 332 had no aim to prevent coloni from leaving the estate they were working on, but to compel them to perform their fiscal duties in the place they had been registered on the tax rolls. 13 Jones 1974, 294; Goffart 1974, 70-75; Eibach 1977, 47-52. 14 Carri 1983, 217-25; 1997, 96-118. 15 Sirks 1993, 331-69. 16 Mircovic 1986, 53-73; 1997, 47-64. 17 See Rosafio 2002, 129-35, 162-64. 18 See Munzinger 1998, 18. 19 Origini suae restituat shows that coloni were tied to their origo rather than to the plot of land they cultivated, as Munzinger 1998, 28-30 writes. Therefore, in late Antiquity colonus means (see n. 2) inhabitant, resident, dweller instead of cultivator of land, peasant.

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was responsible for the colonus taxes. Indeed, the colonus could be returned to the estate he had left with no need to notify tax officials of his transfer. The interpretation of the constitution 332 shows a different picture of a colonus condition:
Interpretatio: Si quis alienum colonum sciens in domo sua retinuerit, ipsum prius domino restituat et tributa eius, quam diu apud eum fuerit, cogatur exsolvere: ipse vero, qui noluit esse, quod natus est, in servitium redigatur. Interpretation: If any person should knowingly detain in his own household a colonus that belongs to another, he shall first restore the man himself to his owner, and he shall be compelled to pay his tribute for as long a time as the man was with him. But the colonus himself who was unwilling to be what he had been born shall be reduced to slavery.

The interpreter uses alienus colonus as an alternative for colonus iuris alieni. The alienus colonus (someone elses colonus, or the colonus of another landowner) can be understood as the colonus from the estate of another landowner or the colonus who belongs to (or is subject to) another landowner. Which meaning should we choose? Speaking of the return of a fugitive colonus to the estate, the Code generally uses phrases like origini suae restituat.20 It may mean that the colonus would be returned to his birth place (solum genitale) and to his place of registration (origo sua) where he was obliged to cultivate the land (ad agrorum cultus).21 The Breviary uses other phrases like prius domino restituat or suum vindicet, or sibi revocetur, or a domino revocentur which imply that the colonus should be returned to his master (dominus).22 The landlord of coloni originales, their patronus in the fourth century, became their master by the beginning of the sixth century. Especially interesting is the discrepancy between the last statement of the constitution of 332 and its interpretation. Clyde Pharr translated the text from the Theodosian Code as follows:
CTh. 5.17.1 (332): origini suae restituat; CIust. 11.48.6 (366): ad antiquos penates, ubi censiti atque educati natique sunt; CIust. 11.64.1 (386): ad munera patriae vel ad agrorum cultus; CIust. 11.63.4 (386): hi qui eos colentes solum eorum verterant (...) ad avitas condiciones et propria iura revocentur; CIust. 11.52.1 (393): (colonus) originario iure teneatur; CIust. 11.48.13 (400): (colonus) ad originem pertinet vindicandum; CTh. 4.23.1 (= CIust. 11.48.14) (400): coloni, () necessitatem condicionis propriae declinare tentaverint, interpretatio: de eorum origine audiatur; CTh. 5.18.1 (419): ad solum genitale () repetitus est, loco, cui natus est, () restitui, agrorum iuri () revocari; NVal. 35.3 (452): colonus fugitivus (...) vinculum debitae condicionis evadat; (...) 6. iugum natalium declinantes, (...) 18. originis iure et titulo revocari (...) interpretatio: ad condicionem propriam revocetur - debitam condicionem; CIust. 1.12.6.5 (466): ad locum statumque proprium. 21 On the condicio genitali solo, see Carri 1997, 88. 22 CTh. 5.18.1 (419): interpretatio: a domino revocentur; illum, cuius colonus est, () mulieris domino compensare praecipimus; ad eius dominium pertinebit; CIust. 11.48.18 (426): in dominorum iuri; August., De civ. D. 10.1.2 (CCSL 47.272): appellantur coloni qui condicionem debent genitali solo, propter agriculturam sub dominio possessorum; NVal. 35.6 (452): in eorum iure et dominio, apud quos creati sunt vel creantur, colonario nomine; NSev. 2 (465): agnationum eorum ad eos dominos pertinere, quorum inquilinus vel colonus fuisse constiterit; CTh. 5.19.1 (365): Interpretatio: dominis coloni in omnibus tenentur obnoxii; CIust. 11.48.21 (530): in domini sui positus est potestate; NIust. 80.2 (539): agricolae aliqui sub dominis constitui sunt; NIust. 156.1 (?): in potestate.
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Coloni also who meditate flight must be bound with chains and reduced to a servile condition, so that by virtue of their condemnation to slavery, they shall be compelled to fulfill the duties that befit freemen.

The translator was obviously influenced by the Breviary, where the statement in servitium redigatur can be understood as a condemnation of the fugitive colonus to slavery as punishment for running away from the estate. Consequently the text in servilem condicionem ferro ligari convenient is translated as must be bound with chains and reduced to a servile condition, while it actually means must be bound with chains as we do with fugitive slaves. Indeed, the fourth-century law distinguished condicio servilis from colonatus perpetuus in the same manner as the fifth-century law saw a discrepancy between nexus colonarius and condicio servilis.23 The constitution of 409 prohibited the possessors who were given the captured Scyrae as coloni from turning them into slaves.24 In the new law of 458 issued by the Emperor Majorian, children born from the marriage of a husband-curial and a wife-colona are naturalized in the curia while children born by a woman-slave from her contubernium with a curial become members of a board of artisans, lest the noble class be shamed by the pettiness of their maternal blood.25 In other words, in the Western postclassical law, coloni were not considered equal to slaves even in the second half of the fifth century. It means that the constitution of 332 in no way defined the colonus as a slave, but it emphasized that coloni must be returned to carry out the duties which befit free people (officia, quae liberis congruent). In other words, coloni would be restored to their former, free condition. But they must previously be punished with chains in the same manner as was done with runaway agricultural slaves. Such words as servilis condicio and servilis condemnatio were ambiguous and caused coloni to be regarded as slaves. Actually, the early fourth-century legislator ordered officials to chain in iron (ferro ligari) escaped coloni as it was usually done with fugitive slaves (in servilem condicionem). The constitution calls it a punishment befitting slaves (servilis condemnatio) and has nothing to to with a condemnation to slavery, as the English translator thought. It seems obvious because in the next text we read they shall be compelled to fulfill the duties that befit freemen.26 Of course, it does not mean that fugitive coloni were condemned to cultivate the land in chains and fetters. It meant that they would be chained while being returned to their original residence. The constitution calls it punishment befitting a slave and justified (merito) by the flight. Thereafter the colonus is expected to
23 24

Cf. CTh. 14.18.1 (= CIust. 11.26.1) (382) and NVal. 31.6 (451). CTh. 5.6.3 (409). Cf. Munzinger 1997, 18. 25 NMai. 7.2 (458): ne materni sanguinis vilitate splendor ordinum polluatur. 26 For another view, see Giliberti 1999, 84-85.

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fulfill the duties of free people, suggesting that in 332, the fugitive colonus was considered a free person both before his flight and after his return to the estate. His shackling sounds like an exceptional, temporary treatment. As J.-M. Carri rightly noted, the aim of the legislator was to force coloni to behave in accordance with their free status, and if necessary, methods used to punish slaves were to be applied.27 In the Breviary, the situation is understood differently the fugitive colonus should be enslaved. In comparison with the original text of 332, the interpretation shows a striking discrepancy. Scholars usually consider the constitution of 332 one of the constitutiones generales. No wonder, therefore, that many see it as the beginning of a new imperial policy concerning coloni, and a logical consequence of the new tax system created by Diocletians reform.28 Although administrative authorities of the Eastern provinces were familiar with such issues before, imperial enactments were addressed to provincial governors and applied within a single province.29 It is also possible that the constitution of 332 had a limited validity at first, and acquired the status of constitutio generalis as a result of its inclusion within the Theodosian Code. This might explain why the constitution of 332 was skipped in the Justinianic Code: even though it was important for the development of the colonate, we now have no more than one short fragment of it. What we have is neither the law of 332 nor the imperial constitution but a fragment edited at least two times, in the Theodosian Code of 438 and in the Breviary of 506. The constitution is markedly different from other legislation of the first half of the fourth century regarding coloni. No other constitution of Constantine preserves such strict orders to return fugitive coloni. Furthermore, there is no law before 357 tying coloni to their domicile or land or ordering their return in case of flight. Only two constitutions of Constantine instruct coloni of imperial estates not to avoid their agricultural tasks.30 Like most of Constantines constitutions regarding coloni, they concerned farmers on imperial land.31 A common trend in

Carri 1983, 207 and 233. See Giliberti 1999, 89-98. 29 For instance, the Edict of Septimius Severus and Caracalla 199/200 (P.Oxy. XLVII 3364 = Thomas 1975, 201-2, l. 1-23). Other texts in Mircovic 1986, 58-59 and 68-69. 30 CIust. 11.68.1 (325): Nullus omnino originalis colonus rei privatae nostrae ad aliquos honores vel quaelibet alia civitatis munera devocetur. Nec enim civitatum ordinibus et ceteris, ex quibus pro multitudine fieri nominationes oportet, per omnia florentibus ad haec suprema praesidia iniuriosa nominatione descendendum est; CIust. 11.68.2 (319): Colonos nostros, qui sunt privati vel ad ratiocinia gerenda vel ad colendos agros idonei, retrahi iubemus ac tantum colendis nostris rebus addici, quin etiam in posterum observari, ne quis eorum rem privatam cuiusquam gerendam aut aliquid ministrandum suscipiat. 31 CTh. 11.7.2 (319); CTh. 4.13.3 (321); CTh. 9.21.2 (321); CTh. 4.22.1 (326); CIust. 11.63.1 (319); CIust. 9.24.1 (321); CIust. 11.68.11 (325); CIust. 3.38.11 (325); CIust. 11.50.1 (325); CIust. 8.5.1 (326); CIust. 11.48.1 (328); CIust. 11.68.2 (313/337); CIust. 3.26.7 (313/337).
28

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legislation to limit the activity of imperial coloni to agriculture started already at the beginning of the third century when Callistratus wrote:32
Coloni quoque Caesaris a muneribus liberantur, ut idoniores praediis fiscalibus habeantur. Coloni of the Imperial demesnes are exempt from municipal employments in order that they may be better adapted to the cultivation of the land belonging to the Treasury.

The exemption of imperial coloni from municipal charges made their status so attractive that many peasants and even decuriones tried to obtain it.33 The notion of ius colonatus first appeared on imperial estates where labourers were free from municipal duties (CTh. 12.1.33 [342]), and only later, in the second half of the fourth century, the status of colonatus perpetuus was extended to private lands.34 This suggests that the constitution of 332 could also apply to imperial coloni. Constantines addressees (provinciales) were possessors of imperial land who attracted labourers (coloni and slaves35) from neighbouring estates. The shortening and correcting of the constitution in the Theodosian Code (and possibly in the Breviary) may have expanded its original meaning and significance. The original text may have concerned a special group of imperial coloni, whose status justified such measures as ferro ligari. It is known that not long before the constitution was issued, Constantine had defeated a tribe of Goths who were then settled on imperial land.36 Already back in the second century Marcus Aurelius had resettled captured barbarians among possessors as coloni, and this practice went on until the fifth century, as the constitution about the Scyrae shows (CTh. 5.6.3 [409]). Unlike this largely preserved constitution, the much shortened fragment of the constitution of 332 does not allow us to ascertain its original content. The compilers of the Theodosian Code kept only those sentences which support the widespread idea that the colonus was bound to the estate where he lived and was forced to pay his taxes on time. The constitutions addressed to the provinces of Illyricum, Palestine, Thracia, and Gallia by the emperors, from Valentinian I to Arcadius and Honorius, show that the idea became established only by the beginning of the fifth century.37 The removal, in the process of codification, of most features specific to its original content suggests that the law was quite different from what is now preserved.38

Callistratus (1 de cognit.) Dig. 50.6.6.11. On the text, see Rosafio 2002, 141 and n. 14. Ulpian (2 opinionum) Dig. 50.5.1.2; CTh. 12.1.33 (342). 34 CTh. 14.18.1 (= CIust. 11.26.1) (382); CTh. 5.6.3 (409); NVal. 31.1 (451); Vict.Vitensis, Hist. Persecut. 3.20 (MGH AA 3.45); NIust. app. 9.4 (558); Greg.Magn., Ep. 4.21 (594) (CCSL 140.239). Cf. Johne 1985, 98-99; 1988, 318-20; Rosafio 2002, 137-57 and 205. 35 Cf. CTh. 2.25.1 (= CIust. 3.38.1) (325). 36 Brockmeier 1987, 79-100. 37 CIust. 11.53.1 (371); 11.52.1 (393); 11.51.1 (386); CTh. 11.1.26 (399). 38 The comparaison of CTh. 5.18.1 (419) with CIust. 11.48.16 (419) shows that a simple shortening of the text can modify its meaning while eliminating important nuances.
33

32

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These considerations show that the preserved text can hardly be identified with the law of 332. The title Fugitive coloni, inquilini, and slaves known from the Breviary (5.9) contains, together with the constitution of 332, the fragment of the constitution of 386.39 Only these two texts contain the expression colonus iuris alieni, while the interpretations of them in the Breviary of Alaric and the fragment of the third constitution in this title preserved in the Burgundian Code of Gundobad (6.2) used a more neutral term, colonus alienus. Similarly the constitution of 409 defines the coloni from the tribe of Scyrae as alienis censibus adscriptos vel non proprios colonos. Likewise, the constitutions in the Justinianic Code use such phrases as alienum colonum, alienos fugitivos, alieni (...) profugi,40 suggesting that the expression colonus alieni iuris, reminiscent of the persona iuris alieni of classical Roman law, was used here for stylistic effect. It was acceptable in the second half of the fifth or the beginning of the sixth century when a colonus dependent status was akin to that of a persona alieni iuris, but the colonus iuris alieni in a strictly legal sense is difficult to imagine in the laws of 332 and 386.41 An analogy for colonus iuris alieni is the phrase mancipium iuris alieni in CTh. 7.13.11 (382) and mancipia iuris alieni in CTh. 10.12.1 (368/373).42 If these expressions are used as legal terms, they would be unusual as there could be no mancipia sui iuris. The legislator may have thought of mancipia iuris alieni as somebody elses slaves, i.e. slaves belonging to another person. Similarly, the colonus iuris alieni in the text of 332 could refer to a colonus from the estate of another landlord.43

CTh. 5.17.1 (332); 2 (386); 3 (386). CIust. 11.48.8 (371); 11.52.1 (393); 11.53.1 (371). 41 Banaji 1997, 259-60, understands the words alieni iuris used in the constitution of 332 in the light of Gaius (1 inst.) Dig. 1.1.61: De iure personarum alia divisio sequitur, quod quaedam personae sui iuris sunt, quaedam alieno iuri subiectae sunt. Videamus itaque de his, quae alieno iuri subiectae sunt: () quae in aliena potestate sunt. Igitur in potestate sunt servi dominorum (). Since a persona iuris alieni was legally subjected to paternal power (paterfamilias or dominus), the colonus is considered part of the patrimony of a familia. Then, following Steinwenters idea (in Steinwenter 1953) that in postclassical law ius often had the meaning of property, Banaji states the connection between a colonus alieni iuris and the definition of Gaius, Epitom. 2.1.1: Omnes itaque res aut nostri iuris sunt, aut diuini, aut publici. Nostri iuris sunt, quae in proprietate nostra esse noscuntur. Thus, speculation has made coloni their landlords property, and Banaji (261) proves his point with the quotation of fifth-century texts like CTh. 5.18.1 (419). Similarly, Mircovic 1986, 60, believes that coloni alieni iuris already existed in Constantines time as a separate category. 42 See Rosafio 2002, 185. 43 When Munzinger 1998, 95-97, writes of the ambiguity of the the term colonus iuris alieni, he appeals to the texts describing a colonus condition not in the first half of the fourth century but on the whole until the epoch of Justinian, without taking into consideration the changes that had happened over this time.
40

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II. CTh. 5.19.1 (= Brev. 5.11.1) (27 January 365)

From the constitution of Valentinian and Valens to the Vicar of the province Asia, Clearchus, we also have one short fragment:
Non dubium est, colonis arva, quae subigunt, usque adeo alienandi ius non esse, ut, et si qua propria habeant, inconsultis atque ignorantibus patronis in alteros transferre non liceat. There is no doubt that coloni do not have the right to alienate the fields that they cultivate, to the extent that even if they have any belongings of their own, they may not transfer them to others without the advice and knowledge of their patrons.

The phrase was excerpted from the constitution by King Alarics lawyer to illustrate the problem of the colonus peculium, despite the fact that peculium is not mentioned in the text itself, but only in the interpretation:
Interpretatio: In tantum dominis coloni in omnibus tenentur obnoxii, ut nescientibus dominis nihil colonus neque de terra neque de peculio suo alienare praesumat. Interpretation: Coloni are held obligated to their owners in all things, to such an extent that without the knowledge of their owners they may not presume to alienate either any of the land or any of their own peculium.

The wording of the original constitution of 365 drastically differs from that of its interpretatio. In the constitution, the landlord is called patronus, and the colonis property does not belong to him, although it is under his control. That coloni could not sell the land which they cultivated seems obvious, as they did not own it. But what about the things they may own (si qua propria habeant), which cannot be transferred to a third party without their landowners agreement? The interpreter of the constitution in the Breviary, who referred to the landlord as dominus, decided that it concerned both land and peculium, i.e. other property except the land.44 Although this is not suggested by the text, it is taken for granted in modern scholarship. The preserved text has been regarded as a constitutio generalis and read as a a ban on coloni from alienating both land and other property.45 In earlier literature, historians likened coloni with slaves.46 Recently, Walter Goffart saw in the law of 365 (CTh. 5.19.1) a reinforcement of a law of Diocletian (CIust. 7.32.5 [290/293]), barring tenants from selling their property without the landlords
44 Following the interpretation, Munzinger 1998, 99-100, speculates that the constitution of 365 made no reference to peculium coloni were deprived of their right to trade their movable property or their land. In his opinion, as of 365 coloni could not own property but could only dispose of a peculium. However, this peculium differed from servile peculium the state imposed a fine on it as if coloni were citizens (CTh. 16.5.54 [414]). The property of muliones (CTh. 7.14.1 and 8.5.58 [398]), navicularii (NVal. 29.1 [450]), suarii, boarii, pecuarii (NVal. 36.8 [452]) was also referred to as peculium. Anastasius (491-518) was the first Emperor to approve the fact that the peculium of a colonus adscripticius belonged to his landlord (CIust. 11.48.19 = Basilika 55.1.19). Cf. Munzinger 1998, 101-4. 45 See Eibach 1977, 24; Munzinger 1998, 98; Rosafio 2002, 184. 46 For the literature, see Eibach 1977, 24, n. 48.

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consent.47 This law merely expanded CIust. 4.65.5 (223), which asserted that when a farm or house was leased, what the lessee brought with him was handed over to the landlord pignoris iure.48 According to Boudewijn Sirks, peculium refers in this context to what a colonus was not entitled to dispose of. The landlord could not take it and sell it at his wish either.49 By contrast, Michael Munzinger followed the opinion of previous scholars in believing that coloni became equal to slaves because a slave could sell his peculium with the permission of his master (libera administratio peculii).50 As Sirks noted, Munzingers interpretation of peculium as a pledge is questionable, as he did not truly recognize the legal situation of the person with peculium. The constitution of 365 does not deal with peculium; the text was included in the title with a meaning constructed by the interpreters of 506. In the original text of the constitution, it was necessary to specify that coloni were not to transfer the land without informing their landlord, not so much because the latter had any right to the land but because he could ascertain that it was not his land, but the colonis that was sold. In the constitution of 365 most consideration was given to the land owned by coloni (arva [...] si qua propria habeant) in addition to the land taken for cultivation on lease (arva, quae subigunt). In other words, the constitution allows coloni to have two types of land: 1) their own land; and 2) the land to which they are attached as tenants (arva, quae subigunt). Neither of them is called peculium. Peasants who were small landowners and paid taxes themselves are known to have sometimes held on lease someone elses land and would then be called coloni.51 When such coloni wanted to sell their own land, their landlords consent was required as a safeguard against the sale of his property and against usurpation of his land as a result of praescriptio temporis.52 Legal historians logically concluded that coloni were still free to dispose of their land after 365, and that their status had not worsen.53 Thus, the deletion of this part of the constitution changed the whole meaning. Coloni, who cultivated both their own land and leased land were converted, in the shortened fragment, into originarii alieni fundi. The extant part of the constitution of 365 indicates that coloni wanting to sell their own land needed to inform their landlord. Does it imply that their property was akin to peculium controlled by the landlord?
Goffart 1974, 77, n. 34; Krause 1987, 96, n. 59. Cf. Munzinger 1998, 98-99; Rosafio 2002, 184. CIust. 4.65.5 (223): Certi iuris est ea, quae voluntate dominorum coloni in fundum conductum induxerint, pignoris iure dominis praediorum teneri. Quando autem domus locatur, non est necessaria in rebus inductis vel illatis scientia domini: nam ea quoque pignoris iure tenentur. 49 Sirks 1993, 365, n. 120. 50 Munzinger 1998, 100, n. 47. 51 CTh. 12.1.33 (342); CTh. 11.1.14 (= CIust. 11.48.4 (366/371). Cf. Rosafio 2002, 184. 52 Coloni tried to do that under Diocletian, see CIust. 7.32.5 (290/293); cf. also CIust. 7.30.1 (226), CIust. 39.2 (365), in the same manner as coloni under Justinian, see NIust. 24 (536). 53 Krause 1987, 96; Sirks 2003, 85.
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However, the constitution of 365 may have referred to coloni akin to those coloni indigenae of the African Saltus Burunitanus. According to the lex Manciana, African coloni had usum proprium on the land they cultivated in addition to the land they held on lease from their landlord (possessor or emphyteuticarius).54 A lex Hadriana gave such coloni the ius possidendi ac fruendi heredique suo reliquendi on cultivated plots called subsiciva.55 The Albertini Tablets show that coloni preserved the right to culturae mancianae even in the late fifth century.56 The right to use additional land means that the land could be inherited by the colonis children but could not be sold to anyone outside the estate. Actually, the right belonged to the landlord, and could be considered additional peculium in case the land cultivated by the colonus was to be regarded as peculium. The fragment of the constitution of 365 does not state that the land is peculium of the coloni, as inferred in the interpretation of 506. According to the Justinianic Code, the term peculium began to be used about coloni by the second half of the fourth century,57 but the earliest constitutions were obviously corrected by the editorial committee. In the Theodosian Code a colonus property started to be regarded as peculium by the early fifth century.58 It is therefore not surprising that peculium does not show up in the constitution of 365. In Roman law, peculium is the property of a person in power (in potestate or in dominio). Therefore, the occurrence of the word peculium suggests that the law allowed coloni to be considered persons who were legally subjected (personae alieni iuris). However, the Codes show that initially peculium, as referring to the colonis property, did not reflect any status familiae but merely signaled that colonis property was under the landlords control and had a lower status than the latters property. This idea is present in a constitution of Arcadius to Nebridius, comes of the province of Asia (22 July 396), where we find one of the earliest records of a colonus peculium.59 Munzinger saw in this constitution a development of the principles which were introduced by a law of Valens in 365 (CTh. 5.19.1) the starting-point was the prohibition for coloni to sell their own land which finally led to the ban on any transfer of property. As a result, the relationship between coloni and their landlords lost its former private-law character since coloni now
CIL VIII 25902: eis eos agros qui subsiciva sunt excolere permittitur lege Manciana (...) ita ut eas qui excoluerit usum proprium habeat. Cf. Kolendo 1976, 50-51. 55 CIL VIII 26416, col. II, ll. 7-13. Cf. Flach 1978, 484-86; Id. 1988, 450-51; Kehoe 1988, 55-63; Vera 1986, 270-72. 56 Courtois 1952, 196: particellae agrorum ex culturis suis mancianis sub dominio Flavi Gemini Catullini flaminis perpetui. Cf. rsted 1994, 115-25; Kolendo 1997, 151-61. 57 CIust. 11.48.8 (371); 11.52.1 (393); 11.50.2 (396); 1.3.20 (434); 1.2.14.1 (470); 11.49.19 (491/517); NIust. 128.8 (545); 162.2 (539). 58 CTh. 16.5.54 (414); 5.18.1 (419); 5.3.1 (434); NVal. 27.4 (449); 35.6 (452); CTh. 5.19.1 (interpretatio) (365). 59 CIust. 11.50.2 (396).
54

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dealt not with ownership but with peculium, suggesting that by the beginning of the fifth century coloni had become personae alieni iuris.60 Besides, according to a widespread opinion, the constitution of 396, alongside with the restriction on colonis right to their property, prohibited coloni from suing their landlords except for physical violence and excessive taxation.61 Dieter Eibach, however, has linked the constitution of 396 with the constitution of 371 which granted landowners the right to force their coloni to fulfill their duties toward the state (autopragia).62 Eibach thought that in 396 coloni were deprived of their right to take legal action against such compulsion. Thus, the constitution would have introduced no new right for coloni and had no influence on their status.63 For the late fourth century, this seems quite possible. The extant text, with coloni sharing the same legal status as slaves and libertines with regard to their landlords, looks like the product of creative work on the part of Justinianic lawyers. Actually, the constitution of 396 granted the colonus under the patronage of his landowner the right to sue him for superexactio. Thereby the colonus property was protected by a special action never heard of before. The problem of superexactio existed earlier, as shown by a constitution of Constantine to the Vicar of Orient (CIust. 11.50.1 [325]), but complaints against excessive taxation did not amount to a breach of contract or custom (consuetudo) before landlords took control of the fiscal duties of their tenant farmers and hirelings. Despite the attractive clarity of its definitions, the constitution of 396 was not included in the Theodosian Code.64 Therefore, there are reasons to doubt the authenticity of most of the text, as internal contraditions are obvious. Only the first and last provisions possibly belong to the original text of 396, while the rest, conspicuous for its rhetorical style, is the work of Tribonians committee and reflects later conditions. The specific restriction concerning the colonis right to bring an action against their landlord, extant in the original constitution of 396, was used in the Justinianic Code to reconstruct their status with severe rights restrictions. Similar rules governed the relationship of slaves and freedmen with
Munzinger 1998, 99, 100-1. For another interpretation, see Eibach 1977, 24-34; Sirks 2003, 85. Clausing 1925, 20-22; Collinet 1939, 604; 1937/1959, 96; Ganshof 1945, 263; Kaser 1975, 101, n. 47; Jones 1964, 796 and 807; Goffart 1974, 69; Held 1974, 104; Demandt 1989, 331; Munzinger 1998, 110-19. 62 CTh. 11.1.14 (= CIust. 11.48.4) (366 [371]): Hi, penes quos fundorum dominia sunt, pro his colonis originalibus, quos in locis eisdem censitos esse constabit, vel per se, vel per actores proprios, recepta compulsionis sollicitudine, implenda munia functionis agnoscant. Sane quibus terrarum erit quantulacunque possessio, qui in suis conscripti locis proprio nomine libris censualibus detinentur, ab huius praecepti communione discernimus; eos enim convenit, propriae commissos mediocritati, annonarias functiones sub solito exactore agnoscere. On autopragia and colonate, see Gascou 1985, 38-52; Carri 1997, 107-18; Sirks 1993, 336-42. 63 Eibach 1977, 26-27. 64 Munzinger 1998, 110, supposes that the constitution of 396 belonged to the same title (5.19) as the constitution of 365 in the Theodosian Code.
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their master or patron.65 Apparently, the lawyers in Justinians time tried to consider a colonus as part of his landlords familia, alien to a person in power (persona iuris alieni).66 Such persons could not testify against their master because they did not enjoy a distinct juristic personality and any action brought against their landlord would be tantamount to an action brought against themselves. The well-known example of Libanius (Or. 47) who lost a case to his coloni (georgoi) shows that they quite successfully acted in court against their landowners at the end of the fourth century. The situation actually remained the same until the 530s.67 Two constitutions issued by Justinian in 529 show that the coloni applied to the court challenging their dependent status68 and even their landlords right to the cultivated land.69 Ten years later they continued to arrive in the capital in large numbers in order to bring a suit against their landlords. The quaestor was ordered to send them away quickly, only two or three being allowed to stay for the judicial proceedings.70 These examples show that the constitution of 396 barred coloni from using the judicial system except in cases involving them personally, their family, their property, and their relationship with their landlord. In other words, they lost the right to participate in civil life outside their estate.71 In exchange, they received a special action for superexactio and iniuria. The lawyers on Tribonians committee used the text of the constitution in their own interest and regarded the colonus as a persona alieni iuris. The idea that colonus and landlord were socially unequal does not fit the fourth century, a period for which we have evidence for the ban on
65

CIust. 3.1.6 (239); 3.41.5 (294); 4.20.8 (294); CTh. 9.6.2 (376); 10.10.17 (382); 9.6.3 (= CIust. 9.1.20)

(397).

Household, freedmen and slaves could not testify against their dominus and patronus (Paul., Sent. 1.12.4). The status of coloni with regard to their landlord is akin to that that of clients or freedmen (liberti loco). See Sirks 1993, 347. 67 Cf. Symm., Ep. 7.56; CIust. 4.21.19 and 11.48.20 (529). Munzinger 1998, 115-16. 68 CIust. 4.21.19 (529): Plures, apochis vel redituum vel usurarum perceptis, si quando super his fuerit dubitatio exorta, eas habere negando ius agentium faciunt vacillare, cum coloni ad dominum certantes et sibi iniquam forte libertatem vindicantes vel debitores creditoribus suis temporalem praescriptionem opponere cupientes ad easdem infitiationes perveniunt (). 69 CIust. 11.48.20 (529): Litibus imponentes celeritatem sancimus, si quando coloni cuiuscumque condicionis contra dominos terrae declamaverint super hoc ipso dubitantes, utrum is terrae dominus est nec ne (eos tamen dicimus, qui non ex longo prolixoque tempore vel longinqua et inveterata redituum susceptione sufficientem habent cautelam, in quibus casibus ne contradicendi quidem licentia colonis relinquitur, longi temporis praescriptione vel redituum frequentissima consequentia colonorum impetus excludente): talem esse super redituum vel publicarum functionum praestatione formam censemus, ut, si tales coloni, quales supra diximus, idoneum fideiussorem totius summae quae ab his dependitur praestiterint, quod omnes reditus sine ulla procrastinatione, si melior causa dominorum iudicetur, eis restituent, et talis fideiussor per triennium accipiatur eoque impleto iterum renovetur, coloni in medio nullo modo super reditibus a dominis inquietentur (...). 70 NIust. 80.2 [539]. Munzinger 1998, 112 considers that the colonis ( , agricolae aliqui sub dominis constitute) petition was directed against superexactio, because they were barred from all other actions by the constitution of 396. 71 Munzinger 1998, 116, notes that there is no evidence of coloni bringing a suit against a third party.

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coloni from transferring land, though not other property, without their landlords consent.72 But coloni did not own the land, so that legally they could not sell land. Consequently, fourth-century lawyers could hardly have used such arguments 73 which were more suitable for the time of Justinian, when the status of coloni adscripticii was finally established: their property was called peculium. Before the sixth century, the law never defines the land cultivated by coloni as peculium, as is often implied in modern scholarship.74 Peculium refers to a colonus belongings except for land.75 Some constitutions order that fugitive coloni and their children and peculium be restored to the estate: peculium obviously means movable property, not land.76 When Honorius ordered the Proconsul of Africa in 414 to fine coloni who belonged to the Donatist church at a rate of one third of their peculium, he stressed that the fine was to be paid by the coloni themselves.77 At the time of the codification of 429-438, peculium may have shifted closer to its legal meaning, while it previously was merely a common way to refer to the property of lower-class people. One of the extant fragments of the constitution of 422 explains that a landlord cannot be responsible for the debts of his slaves, coloni, conductores, procuratores and actores.78 Creditors were allowed to bring an actio de peculio against the actor, slave, and procurator, provided that they were not indebted to their master; colonus or conductor were not included, suggesting that the actio de peculio did not bear on their peculium.79 Eventually, in a vulgarised version of this text in the Edict of Theodoric, the actio de peculio was extended against both coloni and conductores, which would have been impossible in classical Roman law as far as the latter were concerned.80
CIust. 7.30.1 (226); CIust. 7.32.5 (Diocl.); CTh. 4.22.1 (= CIust. 8.5.1) (326); CTh. 5.19.1 (365); CIust. 7.38.2 (387); CTh. 2.30.2 (= CIust. 8.15.8) (422); CIust. 11.48.17 (422). 73 In theory there was a tendency to emphasize that coloni were not owners. According to Pomponius (23 ad Quintum Mucium) Dig. 41.2.25.1: per colonos et inquilinos aut servos nostros possidemus. In the constitution of 396, the same statement was given another meaning coloni were not even owners of their property, the owner could be their landlord only. At the same time, the definition of Isidore of Seville (Etym. 5.25.4-5) shows the term peculium did not change its legal meaning: Peculium proprie minorum est personarum sive servorum. Nam peculium est quod pater vel dominus filium suum vel servum pro suo tractare patitur. Peculium autem a pecudibus dictum, in quibus veterum constabat universa substantia. 74 Clausing 1925, 20; Schrot 1965, 210; Gnther 1967, 267; Brockmeyer 1968, 216; Held 1974, 100. 75 See CIust. 11.48.8 (371); CIust. 11.52.1 (393); CIust. 11.50.2 (396); CTh. 16.5.54 (414); CTh. 5.18.1 (419); CIust. 1.3.20 (434); CTh. 5.3.1 (434); NVal. 27.4 (449); NVal. 35.6 (452); CIust. 1.2.14.1 (470); CIust. 11.49.19 (491/517); CTh. 5.19.1 (interpretatio) (365/506); CIust. 11.48.23.5 (531/534); NIust. 128.8 (545); NIust. 162.2 (539). 76 CIust. 11.52.1 (393); CTh. 5.18.1.2 (419); NVal. 27.4 (449); CIust. 11.48.23.5 (531/534). 77 CTh. 16.5.54 (414). Cf. Munzinger 1998, 100, n. 48; and 120. 78 CTh. 2.31.1 (422); CTh. 32.1 (= CIust. 4.26.13) (422). On this constitution, see Fusco 1974, 609-28; Munzinger 1998, 105-7. 79 Although it is impossible to call the arguments of Munzinger 1998, 108-9 concerning the constitution of 422 a great success (see Sirks 2003, 85), it nevertheless seems necessary to agree with his conclusion that before Justinian, the actio de peculio did not concern coloni. 80 Edictum Theodorici 121 (500): Si procuratori vel conductori, sive colono vel servo alicuius, invito vel nesciente domino, mutuam pecuniam quis dederit, nec ipsi domino, nec rei eius aliquod praeiudicium
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The making of the Theodosian Code provides a turning point in the development of the status of coloni: the question arose then of how many years a labourer must live on the estate in order to become a hereditary colonus (originarius). Roman lawyers had no legal model to construct a new status for coloni, by then distinct from other tenants; the status of coloni changed during the fourth century and lawyers tried to account for it using definitions of classical law. Therefore, the legal terminology used in fourth-century constitutions in reference to coloni may lack accuracy. The law caught up with the fiscal, administrative, and social changes of previous centuries only in 419, when the principle of longi temporis praescriptio was extended to coloni originales and inquilini (CTh. 5.18.1). It was first tested in reference to members of imperial artisan boards in 400 (CTh. 11.19.1-3). Later on, the novellae 27, 31 and 35 of Valentinian III (447-452) would deal with a new distinction between hereditary colonus (originarius) and newcomer (advena) to the estate, as labourer or tenant farmer, eventually defined under Zeno (476-491) and Anastasias (491-518) as adscripticii and coloni liberi. It was a historical moment when the belongings of originarii and adscripticii received the status of peculium and were considered a detentio of persons in power (alieni iuris) in classical law. The lawyers around Alaric and Justinian only had to account for this development and the new reality, and used to this effect the categories of classical Roman law. It was only then that the concept of peculium as an institution of Roman law was extended to everything used by coloni: land, farm animals, and household goods. This created new problems to be addressed by Justinians laws. The purchase of land by coloni was now considered an increase of their peculium, available to persons in power on the condition of the tacit consent (nudo consensu) of their landlord.81 Consequently, if a colonus was sued on his peculium, his landlord was only liable to the extent of the peculium.82 Fourth-century landowners often tried to sell their land without the slaves and coloni who cultivated it, while in the sixth century, on the contrary, coloni tried to sell their masters land as their own, or to force the latter to pay taxes due on the colonis land.83 In the same way, slaves had previously tried to make their master liable for their contracts.84 Thus, the constitution of 365 and its interpretation of 506 reflect two distinct views about the status of colonis property. This explains the formal differences between the constitution (si qua propria, inconsultis atque ignorantibus patronis) and the interpretation (peculium, nescientibus dominis). The interpretation was certainly written in a specific mindframe:
comparetur: sed ex peculio servi vel coloni, considerata vel servata prius indemnitate domini, consulatur petitionibus creditoris. 81 Ulpian (29 ad ed.) Dig. 14.4.1.3. 82 CIust. 4.26.12 (290); and 4.26.13 (422). 83 NIust. 24 (536); and 128.14 (545). 84 CIust. 4.13.5 (294); and 4.26.12 (294); CTh. 2.30.2, 2.31.1, and 2.32.1 (422).

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Without the knowledge of their master, the coloni must not sell anything, neither from the land, nor from their peculium. Peculium here refers to any possessions of the coloni but land. The prohibition to dispose of ones own possessions meant that the colonus had no property rights anymore. Therefore the Breviary states that coloni are completely dependent in every aspect on their masters; this outlook is missing in the constitution. Thus, the peculium of coloni attests the changes in their personal legal status. Actually, the Edict of Theodoric and the Breviary of Alaric translate into law the situation of coloni in Italy as it had developed after the promulgation of the Theodosian Code. The Justinianic Code did the same for the the Eastern Empire.

III. CTh. 5.18.1 (= Brev. 5.10.1) (26 June 419)

The constitution addressed by Honorius to Palladius, the Praetorian Prefect of Gauls, was issued around the time of the beginning of the process of change in the status of coloni:
Si quis colonus originalis vel inquilinus ante hos triginta annos de possessione discessit, neque ad solum genitale silentii continuatione repetitus est, omnis ab ipso, vel a quo forte possidetur, calumnia penitus excludatur quem annorum numerum futuris quoque temporibus volumus observari. 1. Quod si quis originarius intra hos triginta annos de possessione discessit, sive per fugam lapsus, seu sponte seu sollicitatione transductus, neque de eius condicione dubitatur, eum, contradictione summota, loco, cui natus est, cum origine iubemus sine dilatione restitui. 2. Quod si forte ipse, de cuius proprietate certatur, fatali sorte consumptus est, eius posteritatem agrorum iuri cum omni peculio atque mercedibus, velut eo superstite, qui decessit, celeri iubemus exsecutione revocari. 3. In feminis sane observationem volumus esse diversam. Itaque mulierum, quae fuisse originariae docebuntur, si ante vicesimum annum de solo, cui debebantur, abscesserint, universa repetitio cesset; earum vero, quarum intra comprehensum tempus discessio comprobatur ac de condicione nulla dubitatio est, prorsus dominis perire non sinimus, ea tamen condicione servata, ut vicaria cum agnatione partis tertiae non negetur, quae de colono suscepta est alieno, ita ut pro filiis quoque contrarii praebeantur. 4. Quod si non ad alienum praedium, sed cuiuscumque liberi hominis ac sui iuris secuta consortium in urbibus vel in quibuscumque locis victura consistit, si modo intra praefinitum tempus reposcitur, eius omnem originem secundum vetera constituta conveniet revocari. 5. Contestatas autem lites, si tamen quisquam docebitur solenniter fuisse conventus, salvas repetentibus esse decernimus. If a person who is a colonus or inquilinus by birth status has departed from a landholding thirty years before and if, though a continuous period of silence, he has not been brought back to his native soil, every unfounded action against him or the person who perchance now possesses him shall be completely excluded. It is Our will that this same number of years shall be observed likewise for future times. 1. But if within this period of thirty years any colonus by birth status has departed from a landholding, whether he escaped through flight or was abducted by his own wish or through solicitation, and if there should be no doubt concerning his status, We order that all controversy shall be removed and that he, together with his family, shall be restored without delay to the status to which he was born. 2. But if perchance the man whose ownership is contested should be destroyed by the lot of fate, We command that, with swift execution of the order, his offspring shall be recalled to the legal claims of the fields, along with all their belongings and wages, just as though the man who had died were surviving. 3. In the case of women, to be sure, it is Our will that there shall be a different regulation. Thus if women who are proved to be colonae by birth status have departed twenty years before from the land to which they were obligated, all right of recovery shall cease. But We do not permit the owners to lose their right to recover those women who are proved to have departed within the aforementioned period of time and concerning whose status there is no doubt. However, this condition shall be observed, namely, that a substitute woman shall not be refused, together with a third part of the offspring of the fugitive colona, that have been begotten by a colonus belonging to

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another, provided that substitutes for the children may also be furnished. 4. But if such woman did not settle upon another persons landed estate, but obtained a union with a man who is free and legally independent, with the intention of living in the city or in any other district, and if her return is demanded within the specified time, in accordance with the ancient constitutions, all her progeny shall be recovered. 5. Moreover, We decree that in the case of persons that seek recovery, their suits when once attested shall be valid, provided that they prove that they have formally instituted an action.

As peculium is mentioned and people unattached to an estate, like coloni (colonus originalis vel inquilinus), are called free and person in their own right (liberi hominis ac sui iuris), it would seem that by then (419) coloni had already ceased to be free and in their own right. As one can see in an earlier constitution (386) for Palestine, coloni no longer had the right to change their domicile.85 According to Munzinger, by 419 coloni originales had become personae iuris alieni whose property was called peculium and who, like slaves, had to marry at their masters will. It seems, however, that the constitution of 419 has another meaning.86 The constitution deals with problems which arose from marriages between coloni originating from the estates of different landlords when one spouse moved to live on the other estate. At the beginning of the fifth century, the law established the basic rule of such marriages: longi temporis praescriptio. If the landlord of the colonus/-a lost a labourer and did not report it to the chancellery of the provincial governor (rector) over the next 30 (or 20) years, he would be deprived of his right over him: the fugitive colonus would then remain in his new domicile.87 If the report was filed before the deadline expired, the colonus/-a would be returned to the estate from which he/she originated. The children born from this union would follow their father (loco, cui natus est, cum origine restitui), as is proper in a legitimate union. What would happen to the colonus wife? The constitution does not say it explicitly. As a rule, it recommended that, had the colona moved in with her husband, their union should not be dissolved and the children should remain with their parents, even though the 20-year deadline had not yet expired. Scholars often thought that the constitution proposes the factual division of the colonis offspring.88 Following them, Munzinger assumed that the marital bond between such coloni was not regarded as a legal marriage and that the constitution introduced important changes into the marriage law for coloni.89 The law did not call for splitting families, with two thirds of the children following the father and one third the mother. But to protect the landlords
CIust. 11.51.1 (386): ut etiam per Palaestinas nullus omnino colonorum suo iure velut vagus ac liber exsultet. 86 CTh. 5.18.1 (= Brev. 5.10.1) (419). Munzinger 1998, 69-70. 87 For more details, see Rosafio 2006, 233-47. 88 See Collinet 1939, 606; Saumagne 1937, 538; Eibach 1977, 63. 89 Munzinger 1998, 69-70.
85

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interest, the law gave the latter compensation for the lost colona and for one third of her children. Two thirds of the children belonged to the landowner on whose estate they had been raised, and one third to the other, from whose estate their mother originated but who did not have to invest in their education. The legislators may have considered it fair that the new landlord of the colona had a greater share of labourers from colonis offspring because they were born and brought up on his estate. In the constitution there is no mention of division of offspring: all children remained with their parents, and landlords vied for the benefits derived from the colonis children as future labourers on their estates. The legitimacy of the marriage of coloni is also discussed in the last part of the constitution. Munzinger takes a partial look at the situation, so his conclusion is unconvincing and possibly incorrect.90 The constitution considers two variants of the marriage of a colona with a free and independent man (liberi hominis ac sui iuris), who was not attached to any estate. If their union was cohabitation (consortium), their children belonged to the mother (colona) and would have to follow her. Unlike the colonus, the free spouse could change his domicile at his own discretion and decide whether to follow his wife and children to the estate she was returned to, or to renounce his relationship with her. However, the situation is different if it appears that an independent citizen and a colona contracted a legitimate marriage (solenniter fuisse conventus). Nobody could dissolve such a marriage against their will, and the colona and her children would remain with her husband.91 A very different approach to this problem was adopted a hundred years later, in the interpretation of the Breviary of Alaric (5.10.1) and the fragment included in the Justinianic Code (CIust. 11.48.16 [419]). According to the interpretation of 506, a marriage between coloni was indeed considered different from a marriage between free people:
Si quis colonum alienum in re sua vel in fuga lapsum vel sua voluntate migrantem triginta annos habuerit, ac si suum vindicet. Qui si intra triginta annos inventus fuerit a domino, cum filiis secundum legem sibi debitis et omni peculio revocetur. Quod si forte mortuus fuerit, filii eius cum mercedibus suis vel patris mortui a domino revocentur. Colona etiam si viginti annis in alieno dominio et iure permanserit, a priore domino non requiratur; si tamen intra viginti annos inventa fuerit et de alieno colono filios susceperit, cum agnationis parte tertia revocetur: quia colonum duae partes agnationis sequuntur. Sane ne separatio coniugii fiat, illum, cuius colonus est, vicariam mulierem et pro tertia agnatione mulieris domino compensare praecipimus. Si vero mulier iuris alieni ingenuum maritum duxerit, omnis mulieris agnatio ad eius dominium pertinebit. Quod hic minus est de colonae agnatione, in novellis legibus invenitur. Interpretation: If any person should hold for thirty years on his own property another persons colonus, who either escaped by flight or departed of his own will, he shall have the right to vindicate him as his own. But if such colonus should be found before the end of the thirty years, he shall be recovered by his owner, along with the children which are owing to him according to the law and his See Munzinger 1998, 69-70. CTh. 5.18.1.5. A similar solution prevailed in the case of a marriage between persons of unequal status, such as Roman and Latin citizens. If the Roman citizen was mistaken concerning the status of his bride at the time of the wedding, and if this could be proven in court, both the wife and children received Roman citizenship (Tituli ex corpore Ulpiani 1.7.4).
91 90

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entire peculium. But if perchance he should die, his children shall be recovered by the owner, along with their wages and those of their deceased father. Likewise if a colona should remain for twenty years under the dominion and ownership of another person, her return shall not be demanded by her former owner. But if she has been found before the end of twenty years and if she has children by a colonus of another person, she shall be recovered along with a third of her offspring, since two thirds of the offspring follow the colonus. Surely, in order that dissolution of a marriage may not occur, We order that the person to whom the colonus belongs shall furnish to the owner of the colona a substitute woman and compensation for a third of her children. But if a woman belonging to another should marry a freeborn man, all of her offspring shall belong to his ownership. (Whatever is lacking here about the offspring of a colona is found in the Novels.)

Transitional norms, shifting at the beginning of the fifth century between civil law and the law of the land (ius agrorum), were adapted and simplified in the Breviary in order to meet the practical needs of the Romano-barbarian society of the sixth century. The theoretical possibility of breaking the marriage of coloni and of dividing their offspring is raised only here. The law offered the colona some compensation and the right to keep a third of her children, surely not out of respect for the colonis rights, but as a strategy aimed at protecting the families of dependent coloni in the same manner as classical Roman law protected slave families in the early Empire. In the sixth century, the families of coloni were also supported and protected by the government; however, Tribonians legal reforms made the separation of children from their parents acceptable. The use of the last part of the constitution of 419 in the West-Gothic kingdom and Byzantium was not accidental. The sixth-century commentators viewed the variant of the marriage of a colona with a free man more suitable to their society. The Breviary reads:
Si vero mulier iuris alieni ingenuum maritum duxerit, omnis mulieris agnatio ad eius dominium pertinebit. If a woman belonging to another [landlord] should marry a freeborn man, all her offspring shall belong to his ownership.

The children of the colona passed under her landlords ownership, while in the case of a marriage with a colonus from another estate, only two thirds of the children passed to the ownership of her landlord.92 In the Justinianic Code this idea is expressed more precisely:93
Mulier, quae fuisse originaria docebitur, si cuiuscumque liberi hominis secuta consortium in urbibus vel in quibuscumque locis victura constitit, eius omnem subolem secundum vetera constituta conveniet revocari. Where a woman, who is shown to be a colona by birth (originaria), marries a free man in any city or place whatsoever, it has been decided by the ancient laws that all her offspring will follow her condition.

Both fragments of the constitution of 419 apparently ignored the alternative case of a legitimate marriage between coloni belonging to different landlords and between a colona and a man not belonging to any estate. The development of the
92

Munzinger follows the interpretation, but, like the interpreter of 506, ascribes it to the constitution CIust. 11.48.16 (419).

of 419.
93

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colonate during the period from 419 to 534 saw a change in the social condition of coloni as they came to form a distinct class excluded from the protection of civil law. Coloni were no longer free to marry and their families were threatened with division in both the early Byzantine empire and the Western RomanoBarbarian kingdoms of the sixth century. In conclusion I want to subscribe to Boudewijn Sirks worthy remark that the legal texts of the Code must be read in their context and not in detached sections. This context consists primarily of the title the text belongs to, as well as the book, the Code, and the entire body of Roman law.94 Sirks is correct on this point, but tends to disregard the fact that postclassical Roman law was just as shifting as the society of late Antiquity. Thus, he states that the earliest laws on the colonate do not necessarily have the same significance as the earliest historical records on the same subject, while a later law may reveal more about the situation of the coloni. This sounds mistaken as the body of law in the sixth century was not the same as in the fourth century. In this regard, we should note that the status of dependency of coloni had developed in the second half of the fifth century at the earliest, when the term adscripticius appeared in Eastern laws to distinguish the coloni originarii of the previous period from the new coloni liberi, born out of the extension of the 30-year longi temporis praescriptio to independent labourers on the estate. Therefore, it does not seem right to apply the terms adscripticii and coloni liberi to all coloni of the Codes, as Sirks does. Bibliography Banaji, J. 1997. Laboratori liberi e residenza coatta: il colonato romano in prospettiva storica, in E. Lo Cascio (ed.), Terre, proprietari e contadini dellimpero romano. Dallaffitto agrario al colonato tardoantico (Rome) 253-80. Brockmeier, B. 1987. Der Grosse Friede 332 n. Chr.: Zur Aussenpolitik Konstantins des Grossen, Bonner Jahrbucher 187:79-100. Brockmeyer, N. 1968. Arbeitsorganisation und konomisches Denken in der Gutswirtschaft des rmischen Reiches (Diss. Bochum). Carri, J.-M. 1982. Le colonat du Bas-Empire: un mythe historiographique? Opus 1:351-70. Carri, J.-M. 1983. Un roman des origines: les gnalogies du colonat du BasEmpire, Opus 3:205-51. Carri, J.-M. 1997. Colonato del Basso Impero: la resistenza del mito, in E. Lo Cascio (ed.), Terre, proprietari e contadini dellimpero romano. Dallaffitto agrario al colonato tardoantico (Rome) 75-150. Clausing, R. 1925. The Roman Colonate: The Theories of its Origin (New York).
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