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.