Duties and Rights of Landowners and Tenants in a Late Roman Law

Introduction

In the Later Roman Empire (3rd to 6th centuries CE) rural tenancy became much more regulated than previously. During the first two centuries of the Roman Empire, this social relationship was understood as a contract between landowner and tenant, an agreement regulated primarily by local practices, customs, and laws that was only rarely the object of imperial ruling (Neeve 1984; Kehoe 2007). The imperial regulations and decisions concerning rural tenancy are what modern scholarship calls "the Roman colonate" or simply "the colonate." Part of the research conducted by Working Group 1 of WORCK, the data story presented here shows some of the first results of an investigation of the Roman colonate informed by Historical Semantics and the recent reframing of the concepts of free and unfree labour (Linden 2016). Its final aim is to produce a Grammar of Coercion for the Roman colonate. At this early stage, digital tools of text annotation used on a single Roman law helped describe and analyse the phases of entry, extraction, and exit in the case of late Roman rural tenancy, and to explore the character of the coercion experienced by Roman rural tenants.

The late Roman economy united the areas around the Mediterranean via interregional commerce and political redistributive strategies: southern and western regions of modern Europe, the whole of North Africa, and large areas of the Near East. In this interregional economic system, agrarian production in the countryside and manufacturing activities in cities generated a massive accumulation of wealth and power by late Roman aristocracies, and prompted the creation a multicentered economic system, in which multilayered and dynamic social structures and hierarchies were organized around local and regional cores (Wickham 1988, 2005; Hopkins 2008). Within this interregional economic system, slavery continued to be a source of workforce as important as in the Early Empire (Harper 2011). However, the coexistence side by side of slaves, peasants, and other forms of labour, as, for instance, wage labour, suggests that landowners employed as a key practice for the management of the workforce in the Roman countryside what scholars today would call a diverse labour portfolio or a logic of deployment (Banaji 2010).

The late Roman colonate was a set of juridical regulations concerning the employment of tenants within this wider economic context (Jones 1958). It referred to a particular section of the late Roman peasantry, one bonded for fiscal purposes to the land they cultivated. Not all peasants were under the condition of the colonate, but only those who were in a relationship of hereditary tenancy with the landowners (Grey 2011). Several expressions appearing in late Roman law codes were used to classify this kind of bonded peasantry: colonus, colonus originarius, colonus adscriptus. The Roman government was above all concerned with the tax residence of its citizens, a notion which was expressed by the word origo, from which comes the adjective originarius that often qualifies the coloni (Grey 2007). The colonus originarius of the laws was a tenant farmer bonded to the estate that was legally considered his fiscal address. This relation was registered when the labour contract was settled and was used as grounds for tax assessment and collection (this is the reason why sometimes the bonded peasant is called colonus adscriptus—that is, a registered tenant farmer).

II. The codes

The text presented here is from one of several laws addressing the colonate. These laws, in their turn, come from two Roman law codes: the Theodosian and the Justinian codes, respectively from 438 and 529–534 CE.¹ Since most of the evidence they contain originates at the government level and rarely reflects local or regional perspectives, the normative nature of the texts describing the colonate poses many challenges. Norms and rules inscribed and fixed in writing and instituted by official deliberation should not be confused with the social reality itself. Laws are a social practice trying to affect reality, but their effect is not automatically assured. Moreover, the effects cannot be selectively considered ineffective when they are concerned with the subaltern classes, but immediately effective if they reflect the interests of the elites. In the case of large governmental structures like the Roman Empire, laws and judicial practices responded to local and regional contexts (which can be glimpsed sometimes); at the same time, they were relatively autonomous from the interests of dominant groups, which did not always match the aims of the state. This is particularly evident in the case of taxes and fiscality.

Additionally, it is also essential how the Roman administrators created laws and how that process differed from the creation of the codes themselves (Harries 1999). Both the Theodosian and the Justinian codes are the result of a later process of compilation. Laws, in the form of prescripts or edicts, were often issued by the Roman emperors in response to a request from a governor or another member of the government body. However, a request could also come from a collective or even from an individual citizen from outside the Roman administrative structure. This means that the laws addressing the institution of the colonate according to modern scholarship were the combined result of many ad hoc decisions made by successive emperors. Additionally, as mentioned above, the codes were compilations. Regardless of the time span they covered (respectively from the 2nd to the 4th and from the 2nd to the 6th centuries) and the effort by successive emperors and officials to take into consideration previous decisions, their systematic appearance and internal logic were the result of juridical, intellectual, and political operations that happened respectively in the late 4th century and in the early 6th century. This is a problem when one starts to look for patterns of legal development by following a sequence of laws. Some of these laws had been rewritten, as is especially clear if one compares different renderings of the same law in the two codes. The possible rewriting of the laws has important implications for the kind of historical semantics analysis necessary for the elaboration of the Roman colonate's Grammar of Coercion.

III. The Law Analysed

a. Description

The law presented here appears under the number 52 in the 11th book of the Justinian Code. It was instituted in the year 393, and it is interesting to note that although it predated the Theodosian Code, the compilers of the first code decided not to include it among the laws addressing the colonate. This is an imperial constitution, an imperial pronouncement that is one of the sources of Roman legislation, and the most common source of law in the Later Roman Empire. The law was issued by three emperors, Theodosius, Arcadius, and Honorius (Honorius still a child), and was addressed to the then praetorian prefect, Rufinus, in 393. It dealt with the changes in tax assessment and collection, as well as their impact on rural tenancy in one of the administrative areas of the Empire: the diocese of Thrace². From the content of other similar laws, it becomes clear that in fact this law just established that the rules in Thrace should follow what had been previously established in other areas of the Empire.

Translation

Emperors Theodosius, Arcadius, and Honorius Augusti to Rufinus, Praetorian Prefect, 393.
Throughout the entire Diocese of the Thraces, after the removal of the census of the personal capitation tax, the tax assessment (iugatio) for land alone should be paid.
1. And lest by chance it appears to be permitted to (bound) tenants the capability to wander off with the dissolution of their tax bonds and to withdraw to wherever they want, they themselves are to be held by the law of their origin (originario iure), and although they may seem to be free-born they are to be considered as slaves of the land to which they have been born and they should not have the capability to withdraw wherever they want and change their places, but the estate owner (possessor) shall exercise a right over them as well as the solicitude of a patron and the power of an owner.
2. But, if someone thinks to take up and retain a bound tenant belonging to another, he shall be compelled to pay 2 pounds of gold to the one whose fields he emptied with the desertion of its cultivator, so that he restores the same person with all his peculium and his Family.³

Original text

CJ.11.52. De colonis thracensibus.
CJ. 11, 52.1
Imperatores Theodosius, Arcadius, Honorius
Per universam dioecesim thraciarum sublato in perpetuum humanae capitationis censu iugatio tantum terrena solvatur. theodos. arcad. et honor. aaa. rufino pp.
1. Imperatores Theodosius, Arcadius, Honorius
Et ne forte colonis tributariae sortis nexibus absolutis vagandi et quo libuerit recedendi facultas permissa videatur, ipsi quidem originario iure teneantur, et licet condicione videantur ingenui, servi tamen terrae ipsius cui nati sunt aestimentur nec recedendi quo velint aut permutandi loca habeant facultatem, sed possessor eorum iure utatur et patroni sollicitudine et domini potestate.
2. Imperatores Theodosius, Arcadius, Honorius
Si quis vero alienum colonum suscipiendum retinendumve crediderit, duas auri libras ie cogatur exsolvere, cuius agros transfuga cultore vacuaverit, ita ut eundem cum omni peculio suo et agnatione restituat.

IV. Action Phrases

In the introduction of the law (52.1), stating straightaway the tributary changes in the countryside of the diocese of Thrace, we find one key expression, iugatio tantum terrena solvatur. This command is directed at the landowners. It specifies that from that moment onwards, only the land tax must be paid (with the termination of the poll tax). This implicitly means that the landowners will be responsible to ensure that all the tenants on their lands will pay the land tax correctly.

That implicit meaning is the reason why in the first section of the law (52.1.1) there are many action phrases addressing the situation of the tenants and their relationship with the landowners. The tenants should not be seen as having the permission (ne facultas permissa videatur) to wander (vagandi) or to withdraw from the rural estate where they work (quo libuerit recedendi) as if they had dissolved the tributary bonds (tributariae sortis nexibus absolutis). This combination of action phrases results in a description of the tenants as fixed and bonded to the land, but this situation must be based on a legal construction of the condition of the tenants. Consequently, the lawmakers try to clearly state the legal condition that limited the tenants' movement. Although the tenants are considered free (condicione videantur ingenui), they must be held on the land by the law of origo (ipsi ... originario iure teneantur), that is, by their fiscal address. In that sense, they are considered as if "slaves of the land" where they were born (servi ... terrae ipsius cui nati sunt aestimentur), and therefore they do not have permission to change their location (aut permutandi loca habeant facultatem), nor to leave their estates and "go wherever they want" (nec recedendi quo velint). These last sentences in fact just repeat the previous prohibition of movement, now informed by a metaphorical adaptation of the rules of slavery to the tenants, with regard to their rights of movement. The first section of the law ends with an attempt to elucidate the relationship between tenants and landowners: on the one hand, the landowners (possessores) have the right to use the labour of the tenants (iure utatur), holding power over them like slaveowners (domini potestate), and on the other hand, they offer support as patrons (patroni sollicitudine). The tenants are first likened to slaves and then to clients. This creates an ambiguity, because the rights of protection and support granted by the affiliation under a patron are reserved, under Roman law, to subaltern citizens – that is, people who are not unfree – and to liberti, former slaves who are technically also not unfree. For many people, now and then, this seems a contradictory statement, and it in fact reflects the ambiguous situation of the tenants. Such ambiguity stands at the centre of the challenges the colonate raises as an object of study from the past.

In turn, the second section of the law (52.1.2) presents an important prohibition for the landowners themselves, who are not allowed to receive or to keep fugitive tenants – that is, coloni whose origo is attached to an estate belonging to another possessor (alienum colonum suscipiendum retinendumve). This was to be punished with a fine of two pounds⁴ of gold (duas auri libras ie cogatur exsolvere), and the restitution of the tenant, his property, and his family (eundem cum omni peculio suo et agnatione restituat) to the owner of the estate to which the coloni originally belonged. Such proscription suggests that for the late Roman emperors the stability of agrarian production and tax payment were higher priorities than the landowners' freedom to control their personnel.

It is also possible to look at some of the action phrases above as representing different moments or phases of coercive labour. From this perspective, the phrases "they must be held in the land by the law of origo" (ipsi ... originario iure teneantur) and "being considered as 'slaves of the land' where they were born" (servi ... terrae ipsius cui nati sunt aestimentur) seem to indicate the possible entry into a situation of coercion, while "as if they had dissolved the tributary bonds" (tributariae sortis nexibus absolutis) implies some sort of liminal situation or even the possibility of (illegal) exit from the coercive situation. In this context, the ambiguous sentence "the landowners have the right to use the labour of the tenants, on the one hand, holding power over them as an slaveowner, and on the other hand, granting support as a patron" (possessor eorum iure utatur et patroni sollicitudine et domini potestate) would belong to the phase of labour extraction in a coercive situation.

To sum up, the law 11.52 of the Justinian code defines the condition of rural tenants in late Roman Thrace as both free and unfree. It is difficult to comprehend such definition by only looking at the labels like "colonus" or "originarius." They are ambiguous and contradictory not only to us, but they were also confusing to the people of the Empire.

Modern views on Roman rural patronage tend to highlight the inter-personal aspects of rural tenancy (the relationship between landowner and tenant), overlooking the fact that patronage existed in the wider context of Roman law and governance. Both dominion and patronage were enabled by the Roman system of tax collection and therefore were based on much more than just a private relationship between landowner and peasant. The late Roman regulations concerning tenants (and peasants in general), as described in CJ.11.52, prescribed this dual character for the landowner: he should be both a dominus (in what concerns the taxes) and a patron (regarding the protection of the tenants' productive activities and the reproduction of their household). Landowners were also forbidden to receive in their estates and to hire tenants attached to other lands. What is often missing from modern representations of the Roman colonate is the extent to which this policy also limited the power of possessores to freely control the labour force as they saw fit. From this brief experiment of classification and analysis of the action phrases in the law describing the duties and rights of the tenants and landlords, we can see how laws related to slavery and patronage were applied and adapted to account for the ambiguous condition of late Roman bonded tenancy: on the one hand, as a useful metaphor to describe control over the tenants, on the other hand as insurance against abusive landowners.

Selected Action Phrases

1. iugatio tantum terrena solvatur – pay the taxes
2. Ne facultas permissa videatur – not be seen as having the permission, i.e. not being allowed
3. tributariae sortis nexibus absolutis – to dissolve the tributary bonds
4. vagandi – to wander
5. quo libuerit recedendi - to withdraw (from estate)
6. ipsi ... originario iure teneantur – to be held by law (of *origo*)
7. condicione videantur ingenui – to be considered (free)
8. servi ... terrae ipsius cui nati sunt aestimentur – to be considered (slaves of the land)
9. nec recedendi quo velint – to withdraw from the estate
10. aut permutandi loca habeant facultatem - to exchange locals (unlawful)
11. iure utatur – to employ
12. patroni sollicitudine – to grant support (as a *patronus*)
13. domini potestate – to hold power (as a *dominus*)
14. alienum colonum suscipiendum retinendumve – to receive (a fugitive)
15. duas auri libras ie cogatur exsolvere – to pay a fine (in gold)
16. restituat – to give back (land, peasant, offspring)

b. Phases of Coercion

1. tributariae sortis nexibus absolutis – Liminal/Exit
2. ipsi quidem originario iure teneantur – Entry
3. servi tamen terrae ipsius cui nati sunt aestimentur – Entry
4. sed possessor eorum iure utatur et patroni sollicitudine et domini potestate. – Extraction

Editions of the Roman Law Codes

Frier, Bruce, Serena Connolly, Simon Corcoran, Michael Crawford, John Noel Dillon, Dennis P. Kehoe, Noel. Lenski, Thomas A. McGinn, Charles Frederick Pazdernik, and Bennet Salway, eds. 2016. The Codex of Justinian: A New Annotated Translation, with Parallel Latin and Greek Text. Translated by Fred Blume. Cambridge: Cambridge University Press.

Mommsen, Theodor, Paul M. Meyer, and Jacques Sirmond, eds. 1954. Theodosiani libri XVI cum Constitutionibus Simmondianis: et leges novellae ad Theodosianum pertinentes ; consilio et auctoritate Academiae litterarum regiae borussicae. Berlin: Apvd Weidmannos; Deutsche Akademie der Wissenschaften zu Berlin.

Pharr, Clyde. 2001. The Theodosian Code and Novels, and the Sirmondian Constitutions. Union, New Jersey: Lawbrook Exchange.

References

Banaji, Jairus. 2010. "Historical Arguments for a 'Logic of Deployment' in 'Precapitalist' Agriculture." In Theory and History: Essays on Modes of Production and Exploitation, 103–16. Leiden: Brill.

Grey, Cam. 2007. "Contextualizing Colonatus: The Origo of the Late Roman Empire." Journal of Roman Studies 97: 155–75.

———. 2011. Constructing Communities in the Late Roman Countryside. Cambridge: Cambridge University.

Harper, Kyle. 2011. Slavery in the Late Roman World, AD 275–425. Cambridge University Press.

Harries, Jill. 1999. Law and Empire in Late Antiquity. Cambridge: Cambridge University.

Hopkins, Keith. 2008. "The Political Economy of the Roman Empire." In The Dynamics of Ancient Empires: State Power from Assyria to Byzantium, edited by Ian Morris and Walter Scheidel, 178–204. Oxford: Oxford University Press.

Jones, A.H.M. 1958. "The Roman Colonate." Past & Present 13: 1–13.

Kehoe, Dennis P. 2007. Law and the Rural Economy in the Roman Empire. University of Michigan Press.

Linden, Marcel van der. 2016. "Dissecting Coerced Labour". In On Coerced Labour: Work and Compulsion after Chattel Slavery, edited by Marcel van der Linden and Magaly Rogríguez Garcia, 293–322. Leiden: Brill.

Neeve, P. W. de. 1984. Colonus: Private Farm-Tenancy in Roman Italy during the Republic and the Early Principate. Amsterdam: J.C.Gieben.

Wickham, Chris. 1988. "Marx, Sherlock Holmes, and Late Roman Commerce." The Journal of Roman Studies 78: 183–93.

———. 2005. Framing the Early Middle Ages: Europe and the Mediterranean, 400-800. Oxford: Oxford University.

Footnotes

1. Both codes are available online in the Latin Library: http://www.thelatinlibrary.com/theodosius.html and http://www.thelatinlibrary.com/justinian.html; for an English translation of the Justinian Code: http://www.uwyo.edu/lawlib/blume-justinian/ajc-edition-2/books/.

2. 1. A diocese was an administrative area of the Later Roman Empire, composed of several provinces. Cf. https://en.wikipedia.org/wiki/Diocese_of_Thrace

3. Latin text and translation by Frier et al. (2016, p. 2748–2751), with minor changes.

4. A Roman pound is equivalent to 328.9 g.