For the position of thecolonusin 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 (439AD), 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 529AD, 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 whoseresponsacarried 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 somedisputed 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 theDigestapublished 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 ofcolonithe 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 (XIX2locati 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 thecolonusis 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 ofususover an estate may in certain circumstances refuse[1459]to admit thedominus; but not thecolonusor his staff of slaves employed in the farm-work. Change of ownership can perhapsnever 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 ofreconductio. 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 thecolonusis 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 thecolonusis represented as normally a man of small means. It is true that in the Digestconductorandcolonusare not clearly[1464]distinguished, as we find them in the African inscriptions and in the later law. For the former is simply the counterpart oflocator, properly connoting the relation between the contracting parties:colonusexpresses the fact that the cultivation (colere) of land belonging to another devolves upon him by virtue of the contract. Everycolonusis aconductor, but not everyconductoracolonus. 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 toreliquain 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) 100-250AD, with which we are here concerned. It was probably a time of great difficulty for both landlords and tenants, at least outside the range of suburban market-gardening. Signs are not lacking that want of sufficient capital[1471]cramped the vigour of agriculture directly and indirectly. Improvements might so raise the standard of cultivation on an estate as to leave an awkward problem for the owner. Its upkeep on its present level might need a large capital; tenants of means were not easy to find, and subdivision into smaller holdings would not in all circumstances provide a satisfactory solution. Moreover, if the man of means was not unlikely to act independently, in defiance of the landlord, the small man was more likely to take opportunities of misappropriating things to which he was not entitled.
All these difficulties, and others, suggest no great prosperity in Italian agriculture of the period. That on certain soils farming did not pay, was as well known[1472]to the jurists as to other writers. And one great cause of agricultural decline appears in their incidental remarks as clearly as in literature. It was the devotion of much of the best land in the best situations to the unproductive parks and pleasure-grounds of the rich. This can hardly be laid to the account of the still favoured financial position of Italy as compared with the Provinces, for we find the same state of things existing late in the fourth century, when Italy had long been provincialized and taxed accordingly. It was fashion, and fashion of long standing, that caused this evil. And this cause was itself an effect of the conditions of investment. The syndicates for exploiting provincial dues had gone with the Republic.State contracts and industrial enterprises were not enough to employ all the available capital. The ownership of land, now that politics were not a school of ambition, was more than ever the chief source of social importance. A man who could afford to own vast unremunerative estates was a great personage. We may add that such estates, being unremunerative, were less likely to attract the fatal attention of bad emperors, while good rulers deliberately encouraged rich men to invest fortunes in them as being an evidence of loyalty to the government. The uneconomic rural conditions thus created are plainly referred to in the staid remarks of the jurists. We read of estates owned for pleasure (voluptaria praedia)[1473]: of cases where it may be doubted[1474]whether thefundusdoes not rather belong to thevillathan thevillato thefundus: and the use of the wordpraetorium[1475](= great mansion, palace, ‘Court’) for the lord’s headquarters on his demesne becomes almost official in the mouth of lawyers. Meanwhile great estates abroad could be, and were, profitable to their owners, who drew rent from tenants and were normally non-resident. Yetpraetoriawere sometimes found even in the Provinces.
In connexion with this topic it is natural to consider the questions of upkeep and improvements. The former is simple. As the tenant has the disposal of the crops raised and gathered (fructus), he is bound[1476]to till the soil, to keep up the stock of plants, and to see that the drainage of the farm is in working order. Further detail is unnecessary, as his liability must be gauged by the state of the farm when he took it over. Improvements look to the future. From the lawyers we get only the legal point of view, which is of some interest as proving that the subject was of sufficient importance not to be overlooked. Now it seems certain that aconductororcolonushad a right of action to recover[1477]from thedominusnot only compensation for unexhausted improvements, but his whole outlay on them, if shewn to have been beneficial. Or his claim might rest on the fact that the project had been approved[1478]by the landlord. But it might happen that a work beneficial to the particular estate was detrimental to a neighbouring one. In such a case, against whom—landlord or tenant—had the owner of that estate a legal remedy? It was held that, if the tenant had carried out the work in question[1479]without his landlord’s knowledge, he alone was liable. If, as some held, the landlord was bound to provide a particular remedy, he could recover the amount paid under this head from his tenant. To insure the owneragainst loss from the acts of his lessee was evidently an object of the first importance, and this is in harmony with the Roman lawyers’ intense respect for rights of property. The general impression left on the reader of their utterances on this subject is that a landlord, after providing a considerableinstrumentum, had done all that could reasonably be expected from him. Improvements, the desirability of which was usually discovered through the tenant’s experience, were normally regarded as the tenant’s business: it was only necessary to prevent the landlord from arbitrarily confiscating what the tenant had done to improve his property. Obviously such ‘improvements’ were likely to occasion disputes as to the value of the work done: but it was the custom of the countryside to refer technical questions of this kind to the arbitration of an impartial umpire (vir bonus), no doubt a neighbour familiar with local circumstances. On the whole, it does not appear that the law treated thecolonusbadly under this head, and the difficulty of securing good tenants may be supposed to have guaranteed him against unfair administration.
A great many more details illustrating the position ofcolonias they appear in the Digest could be added here, but I think the above will be found ample for my purpose. The next topic to be dealt with is that of labour, so far as the references of the lawyers give us any information. First it is to be noted that the two systems[1480]of estate-management, that of cultivation for landlord’s account by hisactororvilicus, and that of letting to tenant farmers, were existing side by side. The latter plan was to all appearance more commonly followed than it would seem to have been in the time of Columella, but the former was still working. A confident opinion as to the comparative frequency[1481]of the two systems is hardly to be formed on Digest evidence: for in rustic matters the interest of lawyers was almost solely concerned with the relations of landlord and tenant. What an owner did with his own property on his own account was almost entirely his own business. There are signs that a certain change in the traditional nomenclature represents a real change of function in the case of landlords’ managers. The termactoris superseding[1482]vilicus, but thevilicusstill remains. He would seem to be now more of a mere farm-bailiff, charged with the cultivation of some part or parts of an estate that are not let to tenants. It may even be that he is left with a free hand and only required to pay a fixed[1483]yearly return. If so, this arrangement is not easily to be distinguished from the case of a slavecolonusorquasi colonus[1484]occupying a farm. The financial and general supervision of the estate is in the hands of theactor[1485], who collects all dues, including rents ofcolonieand is held to full account[1486]for all these receipts as well as for the contents of the store-rooms. He is a slave, but a valuable and trusted man: it is significant that the manumission[1487]ofactoresis not seldom mentioned. Evidently the qualities looked for in such an agent were observed to develope most readily under a prospect of freedom. But, so long as he remainedactorof an estate, he could be regarded as part of it: in a bequest the testator could include him as a part[1488], and often did so: and indeed his peculiar knowledge of local detail must often have been an important element in its value. To employ such a person in the management of an estate, with powerful inducements to good conduct, may have solved many a difficult problem. We may perhaps guess that it made the employment of a qualified legal agent (procurator) less often necessary, at least if theactorcontrived to avoid friction with his master’s free tenants.
Whether an estate was farmed for the owner by his manager, or let to tenants, or partly on one system partly on the other, it is clear that slave-labour is assumed as the normal basis of working. For thecolonustakes over slaves supplied by thedominusas an item of theinstrumentum. And there was nothing to prevent him from adding slaves of his own, if he could afford it and thought it worth his while to employ a larger staff. Whether such additions were often or ever made, we must not expect the lawyers to tell us; but we do now and then hear[1489]of a slave who is the tenant’s own. Such a slave might as part of the tenant’s goods be pledged to the landlord as security for his rent, but he would not be a part of the estate of which the landlord could dispose by sale or bequest. In such a case the slaves might be regarded[1490]as accessories of thefundus, if it were so agreed. This raised questions as to the degree of connexion that should be treated as qualifying a slave to be considered an appurtenance of a farm. The answer was in effect that he must be a member of the regular staff. Mere temporary employment on the place did not so attach him, mere temporary absence on duty elsewhere did not detach him. A further question was whether all slaves in any sort of employment on the place were included, or only such as were actually engaged in farm work proper, cultivation of the soil, not those employed in varioussubsidiary[1491]industries. These questions the jurists discussed fully, but we cannot follow them here, as their legal importance is chiefly in connexion with property and can hardly have affected seriously the position of tenants. But it is interesting to observe that the lawyers were feeling the necessity of attempting some practical classification. The distinction[1492]betweenurbanaandrustica mancipiawas old enough as a loose conversational or literary one. But, when rights of inheritance or legacy of such valuable property were involved, it became important to define (if possible) the essential characteristics of a ‘rustic’ slave.
That the condition of the rustic slave was improving, and generally far better than it had been on thelatifundiaof Republican days, seems indicated by the jurists’ speaking of a slave ascolonusorquasi colonuswithout any suggestion of strangeness in the relation. We may assume that only slaves of exceptional capacity and merit would be placed in a position of economic (if not legal) equality with free tenants. Still the growth of such a custom can hardly have been without some effect on the condition of rustic slaves in general. It was not new in the second century: it is referred to by a jurist[1493]of the Augustan age. The increasing difficulty of getting either good tenants or good slaves no doubt induced landlords to entrust farms to men who could and would work them profitably, whether freemen or slaves. And a slave had in agriculture, as in trades and finance, a point in his favour: his person and his goods[1494]remained in his master’s power. If by skilled and honest management he relieved his master of trouble and worry, and contributed by regular payment of rent to assure his income, it was reasonable to look for gratitude expressed, on the usual Roman lines, in his master’s will. Manumission, perhaps accompanied by bequest[1495]of the very farm that he had worked so well, was a probable reward. May we not guess that some of the best farming carried on in Italy under the earlier Empire was achieved by trusted slaves, in whom servile apathy was overcome by hope? Such a farmer-slave would surely have under him[1496]slave labourers, the property of his master; and he would have the strongest possible motives for tact and skill in their management, while his own capacity had been developed by practical experience. I can point to no arrangement in Roman agriculture so calculated to make it efficient on a basis of slavery as this.
The services (operae) of a slave, due to his owner or to some one in place of his owner, were a property capable of valuation, and therefore could be let and hired at a price. That is, the person to whom they were due could commute[1497]them for amerces. This might, as in the corresponding Greek case of ἀποφορά, be a paying business, if a slave had been bought cheap and trained so as to earn good wages. It was common enough in various trades: what concerns us is that the plan was evidently in use in the rustic world also. Now this is notable. We naturally ask, if the man’s services were worth so much to the hirer, why should they not have been worth as much (or even a little more) to his own master? Why should it pay to let him rather than to use him yourself? Of course the owner might have more slaves than he needed at the moment: or the hirer might be led by temporary need of labour to offer a fancy price for the accommodation: or two masters on neighbouring farms might engage in a reciprocity of cross-hirings to suit their mutual convenience at certain seasons. Further possibilities might be suggested, but are such occasional explanations sufficient to account for the prevalence of this hiring-system? I think not. Surely the principal influence, steadily operating in this direction, was one that implied an admission of the economic failure of slavery. If A’s slave worked for B so well that it paid A to let him do so and to receive a rent for his services, it follows that the slave had some inducement to exert his powers more fully as B’s hireling than in the course of ordinary duty under his own master. Either the nature and conditions of the work under B were pleasanter, or he received something for himself over and above the stipulated sum claimed by his master. In other words, as a mere slave he did not do his best: as a hired man he felt some of the stimulus that a free man gets from the prospect of his wage. So Slavery, already philanthropically questioned, was in this confession economically condemned.
These points considered, we are not surprised to find mention of slaves letting out their own[1498]operae. This must imply the consent of their masters, and it is perhaps not rash to see in such a situation a sign of weakening in the effective authority of masters. A master whose interest is bound up with the fullest development of his slave’s powers (as rentable property exposed to competition) will hardly act the martinet without forecasting the possible damage to his own pocket. A slave who knows that his master draws an income from his efficiency is in a strong position for gradually extorting privileges till he attains no small degree of independence. We may perhaps find traces of such an advance in the arrangement by which a slave hireshis ownoperae[1499]from his master. He will thus make a profit out of hiring himself: in fact he is openly declaring that he will not work at full power for his master, but only compound with him for output on the scale of an ordinary slave. This arrangement was common in arts and handicrafts, and not specially characteristic of Rome. In rustic life, the slave put into a farm as tenant[1500]at a fixed rent, and taking profit and loss, may furnish an instance. Whether such cases were frequent we do not know. The general impression left by the Digest passages on hiring and letting of slaves is that, when we read ofmercennarii, it is generally if not always hireling[1501]slaves, not free wage-earners, that are meant. In a passage[1502]whereservusoccurs as well asmercennarius, it is reference to the owner as well as to the hirer that necessitates the addition. If I have interpreted these points aright, the picture suggested is a state of things in which the rustic slave was steadily improving his position, supplying hired labour, at times entrusted with the charge of a farm, and with a fair prospect of becoming by manumission under his owner’s will a freecolonus, or even his own landlord. How far this picture is really characteristic of rustic Italy, or of the Provinces (such as Gaul or Spain), is what one would like to know, but I can find no evidence.
In the foregoing paragraphs I have refrained from inquiring whether thecolonusas he appears in the Digest was a farmer who worked with his own hands, or merely an employer and director of labour. The reason is that I have found in the texts no evidence whatever on the point. It was not the jurist’s business. We are left to guess at the truth as best we may, and we can only start from consideration of the farmer’s own interest, and assume that the average farmer knew his own interest and was guided thereby. Now, being bound to pay rent in some form or other and to make good any deficiencies in theinstrumentumat the end of his tenancy, he had every inducement to get all he could out of the land while he held it. How best to do this, was his problem. And the answer no doubt varied according to the size of the farm, the kind of crops that could profitably be raised there, and the number and quality of the staff. In some rough operations, his constant presence on one spot and sharing the actual work might get the most out of his men. Where nicety of skill was the main thing, he might better spend his time in direction and minute watching of the hands. On a fairly large farm he would have enough to do as director. We may reasonably guess that he only toiled with his own hands if he thought it would pay him to do so.Thisa prioriguesswork is not satisfactory. But I see nothing else to be said; for the African inscriptions do not help us. The circumstances of those great domains were exceptional.
So far we have been viewing agriculture as proceeding in times and under conditions assumed to be more or less normal, without taking account of the various disturbing elements in rustic life, by which both landlords and tenants were liable to suffer vexation and loss. Yet these were not a few. Even a lawyer could not ignore wild beasts. Wolves carried off some of A’s pigs. Dogs kept by B,colonusof a neighbouringvilla, for protection of his own flocks, rescued the pigs. A legal question[1503]at once arises: are the rescued pigs regarded as wild game, and therefore belonging to the owner of the dogs? No, says the jurist. They were still within reach; A had not given them up for lost; if B tries to retain them, the law provides remedies to make him give them up. I presume that B would have a claim to some reward for his services. But the lawyer is silent, confining his opinion to the one question of property. References to depredations of robbers or brigands (latrones,grassatores,) occur often, and quite as a matter of course. The police of rural Italy, not to mention the Provinces, was an old scandal. Stock-thieves, who lifted a farmer’s cattle sheep or goats, and sometimes his crops, were important enough to have a descriptive name (abigei)[1504]and a title of the Digest to themselves. That bad neighbours made themselves unpleasant in many ways, and that their presence gave a bad name to properties near them, was an experience of all lands and all ages: but the jurists treat it gravely[1505]as a lawyer’s matter. Concealment of such a detrimental fact[1506]by the seller of an estate made the sale voidable. The rich (old offenders in this kind) were by a rescript of Hadrian[1507]awarded differential punishment for removing landmarks: in their case the purpose of encroachment was not a matter open to doubt.
In one connexion the use of force as an embarrassing feature of rustic life was a subject of peculiar interest to the jurists, and had long been so. This was in relation to questions of possession. In Roman lawpossessioheld a very important place. All that need be said of it here is that the fact of possession, or lack of it, seriously affected the position of litigants in disputes as to property. Great ingenuity was exercised in definition and in laying down rules for ascertaining the fact. Now among the means employed in gaining or recovering possession none was more striking or more effective than the use of force. Special legal remedies had been provided to deal with such violence;interdictaissued by the praetor, to forbid it, or to reinstate a claimant dislodged by his rival, or simply to state the exact issue raised in a particular case. On conformity or disobedience to the praetor’s order the case was formally tried in court: the question of law mainly turned on questions of fact. What concerns us is that force was solemnly classified under two heads,visandvis armata. Each of these had its own proper interdict at least as early as the time of Cicero, and they occupy a whole title[1508]in the Digest. Clearly the use of force was no negligible matter. That it was a danger or at least a nuisance to owners or claimants ofproperty, is not less clear. But how did it touch thecolonus? He was, as such, neither owner nor claimant of the property of his farm. He had in his own capacity[1509]nopossessioneither. But, as tenant of a particular owner, his presence operated[1510]to secure the possession of his landlord. Hence to oust him by force broke the landlord’s possession; whether rightly or wrongly, the law had to decide. Now it is obvious that, in cases where serious affrays resulted from intrusion, a tenant might suffer grave damage to his goods and person. The intruders (often a gang of slaves) would seldom be so punctiliously gentle as to do no harm at all. Therefore, having regard to the amount of interest in this subject shewn by the lawyers, we cannot omit the use of force in matters of possession from the list of rustic embarrassments.
Another cause of annoyance was connected with servitudes, such as rights of way and water, which were frequent subjects of dispute in country districts. Whether regarded as rights or as burdens, the principles governing them were a topic that engaged the minute and laborious attention[1511]of the lawyers. Now it is evident that a right of way or water through an estate, though a material advantage to a neighbouring estate served by the convenience, might be a material disadvantage to the one over which the right extended. Also that the annoyance might be indefinitely increased or lessened by the cantankerous or considerate user of the right by the person or persons enjoying it. When we consider that servitudes were already an important department of jurisprudence in Republican days, and see how great a space they occupy in the Digest, we can hardly resist the conclusion that country proprietors found in them a fertile subject of quarrels. But surely the quarrels of landlords over a matter of this kind could not be carried on without occasional and perhaps frequent disturbances and injury to the tenants on the land. Even if the law provided meansof getting compensation for any damage done to a tenant’s crops or other goods in the course of attempts to enforce or defeat a claimed servitude, was the averagecolonusa man readily to seek compensation in the law-courts? I think not. But, if not, he would depend solely on the goodwill of his own landlord, supposing the latter to have got the upper hand in the main dispute. On the whole, I strongly suspect that in practice these quarrels over rustic servitudes were a greater nuisance to farmers than might be supposed. So far as I know, we have no statement of the farmer’s point of view. Another intermittent but damaging occurrence was the occasional passage of soldiery, whose discipline was often lax. We might easily forget the depredations and general misconduct of these unruly ruffians, and imagine that such annoyances only became noticeable in a later period. But the jurists do not allow us to forget[1512]the military requisitions for supply of troops on the march, the payment for which is not clearly provided, and would at best be a cause of trouble; or the pilferings of the men, compensation for which was probably not to be had. It would be farmers in northern Italy and the frontier-provinces that were the chief sufferers.
Damage by natural disturbances or by fires may happen in any age or country. That Italy in particular was exposed to the effect of floods and earthquakes, we know. Accordingly the lawyers are seriously concerned with the legal and equitable questions arising out of such events. It was not merely the claim of tenants[1513]to abatement of rent that called for a statement of principles. Beside the sudden effects of earthquakes torrents or fires, there were the slower processes of streams changing their courses[1514]and gradual land-slides on the slopes of hills. These movements generally affected the proprietary relations of neighbouring landlords, taking away land from one, sometimes giving to another. Here was a fine opening for ingenious jurists, of which they took full advantage. The growth of estates by alluvion, and loss by erosion, was a favourite topic, the operation of which, and the questions thereby raised, are so earnestly treated as to shew their great importance in country life. Of fire-damage, due to malice or neglect, no more need be said; nor of many other minor matters.
But, when all the above drawbacks have been allowed for, it is still probably true that scarcity of labour was a far greater difficulty for farmers. We hear very little directly of this trouble, as it raised no pointof law. Very significant[1515]however are the attempts of the Senate and certain emperors to put down an inveterate scandal which is surely good indirect evidence of the scarcity. It consisted in the harbouring[1516]of runaway slaves on the estates of other landlords. A runaway from one estate was of course not protected and fed on another estate from motives of philanthropy. The slave would be well aware that severe punishment awaited him if recovered by his owner, and therefore be willing to work for a new master who might, if displeased, surrender him any day. The landlords guilty of this treason to the interests of their class were probably the same as those who harboured[1517]brigands, another practice injurious to peaceful agriculture both in Italy and abroad. Another inconvenience, affecting all trades and all parts of the empire in various degrees, was the local difference in the money-value[1518]of commodities in different markets. This was sometimes great: and that it was troublesome to farmers may be inferred from the particular mention of wine oil and corn as cases in point. No doubt dealers had the advantage over producers, as they generally have, through possessing a more than local knowledge of necessary facts. These middlemen however could not be dispensed with, as experience shewed, and one of the later jurists[1519]openly recognized. Facilities for borrowing, and rates of interest, varied greatly in various centres. But all these market questions do not seem to have been so acute as to be a public danger until the ruinous debasement of the currency in the time of Gallienus. A few references may be found to peculiar usages of country life in particular Provinces. Thus we read that in Arabia[1520]farms were sometimes ‘boycotted,’ any person cultivating such a farm being threatened with assassination. In Egypt[1521]special care had to be taken to protect the dykes regulating the distribution of Nile water. Both these offences were summarily dealt with by the provincial governor, and the penalty was death. Here we have one more proof of the anxiety of the imperial government to insure the greatest possible production of food. The empire was always hungry,—and so were the barbarians. And the northern frontier provinces could not feed both themselves and the armies.
While speaking of landlords and tenants we must not forget that all over the empire considerable areas of land were owned by municipalities, and dealt with at the discretion of the local authorities. Variety of systems was no doubt dictated by variety of local circumstances:but one characteristic was so general as to deserve special attention on the part of jurists. This was the system of perpetual leaseholds[1522]at a fixed (and undoubtedly beneficial) rent, heritable and transferable to assigns. So long as the tenant regularly paid thevectigal, his occupation was not to be disturbed. It was evidently the desire of the municipal authorities to have a certain income to reckon with: for the sake of certainty they would put up with something less than a rack-rent. There were also other lands owned by thesecivitatesthat were let on the system[1523]in use by private landlords; the normal term probably being five years. Of these no more need be said here. Beneficial leases under a municipality were liable to corrupt management. It had been found necessary[1524]to disqualify members of the local Senate (decuriones) from holding such leases, that they might not share out the common lands among themselves on beneficial terms. But this prohibition was not enough. The town worthies put in men of straw[1525]as nominal tenants, through whom they enjoyed the benefits of the leases. So this evasion also had to be met by revoking the ill-gotten privilege. But disturbance of tenancies was not to be lightly allowed, so it appears that a reference to the emperor[1526]was necessary before such revocation could take place. This system of perpetual leases is of interest, not as indicating different methods of cultivation from those practised on private estates, but as betraying a tendency to fixity[1527]already existing, destined to spread and to take other forms, and to become the fatal characteristic of the later Empire. Another striking piece of evidence in the same direction occurs in connexion with the lessees (publicani) of various state dues (vectigalia publica) farmed out in the usual way. In the first half of the third century the jurist Paulus attests[1528]the fact that, in case it was found that the right of collecting such dues, hitherto very profitable to the lessees, could only be let at a lower lump sum than hitherto, the old lessees were held bound to continue their contract at the old price. But Callistratus, contemporary or nearly so, tells us that this was not so, and quotes[1529]a rescript of Hadrian (117-138AD) condemning the practice as tyrannical and likely to deter men from entering into so treacherous a bargain. It appears that other[1530]emperors had forbidden it, but there is no proof that they succeeded in stopping it. At all events the resort to coercion in a matter of contract like this reveals the presence of a belief in compulsory fixity, ominous of the coming imperial paralysis, though of course not so understood at the time. It did not directly affect agriculture as yet; but its application to agriculture was destined to be a symptom and a cause of the empire’s decline and fall.
Another group of tenancies, the number and importance of which was quietly increasing, was that known aspraedia Caesaris[1531],fundi fiscales, and so forth. We need not discuss the departmental differences and various names of these estates. The tenants, whether small men orconductoreson a large scale who sublet in parcels[1532]tocoloni, held either directly or indirectly from the emperor. We have seen specimens in Africa, the Province in which the crown-properties were exceptionally large. What chiefly concerns us here is the imperial land-policy. It seems clear that its first aim was to keep these estates permanently occupied by good solvent tenants. The surest means to this end was to give these estates a good name, to create a general impression that on imperial farms a man had a better chance of thriving than on those of average private landlords. Now the ‘state,’ that is the emperor or his departmental chiefs, could favour crown-tenants in various ways without making a material sacrifice of a financial kind. In particular, the treatment of crown-estates as what we call ‘peculiars,’ in which local disputes were settled, not by resort to the courts of ordinary law, but administratively[1533]by the emperor’sprocuratores, was probably a great relief; above all to the humblercoloni, whom we may surely assume to have been a class averse to litigation. No doubt aprocuratormight be corrupted and unjust. But he was probably far more effectually watched than ordinary magistrates; and, if the worst came to the worst, there was as we have seen the hope of a successful appeal to the emperor. Another favour consisted in the exemption of Caesar’s tenants from various burdensome official duties in municipalities, the so-calledmunera, which often entailed great expense. This is mentioned by a jurist[1534]near the end of the second century: they are only to perform such duties so far as not to cause loss to the treasury. Another[1535], somewhat later, says that their exemption is granted in order that they may be more suitable tenants of treasury-farms. This exemption is one more evidence of the well-known fact that in this age municipal offices were beginning to be evaded[1536]as ruinous, and no longer soughtas an honour. We must note that, if thisimmunitasrelieved the crown-tenants, it left all the more burdens to be borne by those who enjoyed no such relief. And this cannot have been good for agriculture in general.
It is not to be supposed that thefiscus[1537]was a slack and easy landlord. Goods of debtors were promptly seized to cover liabilities: attempts to evade payment oftributaby a private agreement[1538]between mortgagor and mortgagee were quashed: a rescript[1539]of Marcus and Verus insisted on the treasury share (½) of treasure trove: and so on. But there are signs of a reasonable and considerate policy, in not pressing demands so as to inflict hardship. Trajan[1540]had set a good example, and good emperors followed it. We may fairly guess that this moderation in financial dealings was not wholly laid aside in the management of imperial estates. Nor is it to be imagined that the advantages of imperial tenants were exactly the same in all parts of the empire. In Provinces through which armies had to move it is probable thatcoloni Caesariswould suffer less[1541]than ordinary farmers from military annoyances. But on the routes to and from a seat of war it is obvious that the imperial post-service would be subjected to exceptional strain. Now this service was at the best of times[1542]a cause of vexations and losses to the farmers along the line of traffic. The staff made good all deficiencies in their requirements by taking beasts fodder vehicles etc wherever they could find them: what they restored was much the worse for wear, and compensation, if ever got, was tardy and inadequate. The repair of roads was another pretext for exaction. It is hardly to be doubted that in these respects imperial tenants suffered less than others. Some emperors[1543]took steps to ease the burden, which had been found too oppressive to the roadside estates. But this seems to have been no more than relief from official requisitions: irregular ‘commandeering’ was the worst evil, and we have no reason to think that it was effectually suppressed. It appears in the next period as a rampant abuse, vainly forbidden by the laws of the Theodosian code.
In the endeavour to extract from scattered and fragmentary evidence some notion of agricultural conditions in the Roman empire before and after Diocletian we are left with two imperfect pictures, so strongly contrasted as to suggest a suspicion of their truth. We can hardlybelieve that the system known as the later Colonate appeared in full force as a sudden phenomenon. Nor indeed are we compelled to fly so directly in the face of historical experience. That we have no narrative of the steps that led to this momentous change, is surely due to the inability of contemporaries to discern the future effect of tendencies operating silently[1544]and piecemeal. What seems at the moment insignificant, even if observed, is seldom recorded, and very seldom intentionally. Hence after generations, seeking to trace effects to causes, are puzzled by defects of record. Their only resource is to supplement, so far as possible, defective record by general consideration of the history of the time in question and cautious inference therefrom: in fact to get at the true meaning of fragmentary admissions in relation to their historical setting. The chief topic to be dealt with here from this point of view is the character of the Roman Empire in several aspects. For among all the anxieties of the government during these troubled centuries the one that never ceased was the fear of failure in supplies of food.
The character of the Roman Empire had been largely determined by the fact that it arose from the overthrow of a government that had long been practically aristocratic. The popular movements that contributed to this result only revealed the impossibility of establishing anything like a democracy, and the unreality of any power save the power of the sword. The great dissembler Augustus concealed a virtual autocracy by conciliatory handling of the remains of the nobility. But the Senate, to which he left or gave many powers, was never capable of bearing a vital part in the administration, and its influence continued to dwindle under his successors. The master of the army was the master of the empire, and influence was more and more vested in those who were able to guide his policy. That these might be, and sometimes were, not born Romans at all, but imperial freedmen generally of Greek or mixed-Greek origin, was a very significant fact. In particular, it marked and encouraged the growth of departmental bureaus, permanent and efficient beyond the standard of previous Roman experience. But the price of this efficiency was centralization, a condition that carried with it inevitable dangers, owing to the vast extent of the empire. In modern times the fashionable remedy suggested for over-centralization is devolution of powers to local governments controlling areas of considerable size. Or, in cases of aggregation, the existing powers left to states merged in a confederation are considerable. In any case, the subordinate units are free to act within their severallimited spheres, and the central government respects their ‘autonomy,’ only interfering in emergencies to enforce the fulfilment of definite common obligations.
But, if it had been desired to gain any such relief by a system of devolution within the Roman empire, this would have meant the recognition of ‘autonomy’ in the Provinces. And this was inconceivable. The extension of Roman dominion had been achieved by dividing Rome’s adversaries. Once conquered, it was the interest or policy of the central power to keep them in hand by preventing the growth of self-conscious cohesion in the several units. Each Province was, as the word implied, a department of the Roman system, ruled by a succession of Roman governors. It looked to Rome for orders, for redress of grievances, for protection at need. If the advance of Rome destroyed no true nations, her government at least made the development of truly national characteristics impossible, while she herself formed no Roman nation. Thus, for better or worse, the empire wasnon-national. But, as we have already seen, the decline of Italy made it more and more clear that the strength of the empire lay in the Provinces. Now, having no share in initiative and no responsibility, the Provinces steadily lost vitality under Roman civilization, and became more and more helplessly dependent on the central power. As the strain on the empire became greater, the possibility of relief by devolution grew less: but more centralization was no cure for what was already a disease.
That local government of a kind existed in the empire is true enough; also that it was one of the most striking and important features of the system. But it was municipal, and tended rather to subdivide than to unite. It was the outcome of a civilization profoundly urban in its origins and ideas. The notion that a city was a state was by no means confined to the independent cities of early Greece. Whether it voluntarily merged itself in a League or lived on as a subordinate unit in the system of a dominant power, the city and its territory were politically one. Within their several boundaries the townsmen and rustic citizens of each city were subject to the authorities of that community. Beyond their own boundary they were aliens under the authorities of another city. It is no wonder that jealousies between neighbour cities were often extreme, and that Roman intervention was often needed to keep the peace between rivals. But the system suited Roman policy. In the East and wherever cities existed they were taken over as administrative units and as convenient centres of taxation: in the West it was found useful and practicable to introduce urban centres into tribes and cantons, and even in certain districts to attach[1545]local populations to existing cities as dependent hamlets. And,so long as the imperial government was able to guard the frontiers and avert the shock of disturbances of the Roman peace, the empire held its own in apparent prosperity. To some historians the period of the ‘Antonines’ (say about 100-170AD) has seemed a sort of Golden Age. But signs are not lacking that the municipal system had seen its best days. The severe strain on imperial resources in the time of Marcus left behind it general exhaustion. The decay of local patriotism marked the pressure of poverty and loss of vitality in the cities. More and more their importance became that of mere taxation-centres, in which the evasion of duty was the chief preoccupation: they could not reinvigorate the empire, nor the empire them.
Another characteristic of the empire, not less significant than those mentioned above, was this: taken as a whole, it wasnon-industrial. Manufactures existed here and there, and products of various kinds were exchanged between various parts of the empire. So far as the ordinary population was concerned, the Roman world might well have supplied its own needs. But this was not enough. The armies, though perilously small for the work they had to do, were a heavy burden. The imperial civil service as it became more elaborate did not become less costly. The waste of resources on unremunerative buildings and shows in cities, above all in Rome, and the ceaseless expense of feeding a worthless rabble, were a serious drain: ordained by established custom, maintained by vanity, to economize on these follies would seem a confession of weakness. Nor should the extravagance of the rich, and of many emperors, be forgotten: this created a demand for luxuries chiefly imported from the East; precious stones, delicate fabrics, spices, perfumes, rare woods, ivory, and so forth. Rome had no goods to export in payment for such things, and the scarcity of return-cargoes must have added heavily to the cost of carriage. There was on this account a steady drain of specie to the East, and this had to be met by a corresponding drain of specie to Rome. In one form or another this meant money drawn from the Provinces, for which the Provinces received hardly the bare pretence of an equivalent, or a better security for peace.
Thus the empire, created by conquest and absorption, administered by bureaucratic centralization,rested on force; a force partly real and still present, partly traditional, derived from a victorious past. The belief in Rome as the eternal city went for much, and we hear of no misgivings as to the soundness of a civilization which expressed itself in a constant excess of consumption over production. Naturally enough, under such conditions, the imperial system became more and more what it really was from the first, a vast machine. It was not a league of cooperating units, each containing a vital principle of growth,and furnishing the power of recovery from disaster. Its apathetic parts looked passively to the centre for guidance or relief, depending on the perfection of a government whose imperfection was assured by attempting a task beyond the reach of human faculty and virtue. The exposure of the empire’s weakness came about through collision with the forces of northern barbarism. What a machine could do, that it did, and its final failure was due to maladies that made vain all efforts to renew its internal strength.
The wars with the northern barbarians brought out with singular clearness two important facts, already known but not sufficiently taken into account. First, that the enemy were increasing in numbers while the people of the empire were in most parts stationary or even declining. Bloody victories, when gained, did practically nothing to redress the balance. Secondly, that at the back of this embarrassing situation lay a food-question of extreme seriousness and complexity. More and more food was needed for the armies, and the rustics of the empire, even when fitted for military service, could not be spared from the farms without danger to the food-supply. The demands of the commissariat were probably far greater than we might on the face of it suppose; for an advance into the enemy’s territory did not ease matters. Little or nothing was found to eat: indeed it was the pressure of a growing population on the means of subsistence that drove the hungry German tribes to face the Roman sword in quest of abundant food and the wine and oil of the South and West. The attempt of Marcus and others after him, to solve the problems of the moment by enlisting barbarians in Roman armies, was no permanent solution. The aliens too had to be fed, and their pay in money could not be deferred. Meanwhile the taxation of the empire inevitably grew, and the productive industries had to stagger along under heavier burdens. The progressive increase of these is sufficiently illustrated in the history ofindictiones. At first anindictiowas no more than an occasional[1546]impost of so much corn levied by imperial proclamation on landed properties in order to meet exceptional scarcity in Rome. But it was in addition to the regulartributum, and was of course most likely to occur in years when scarcity prevailed. No wonder it was already felt onerous[1547]in the time of Trajan. Pressure on imperial resources caused it not only to become more frequent, and eventually normal: it was extended[1548]to include other products, and became a regular burden ofalmost universal application, and ended by furnishing a new chronological unit, the Indiction-period of 15 years.
That agriculture, already none too prosperous, suffered heavily under this capricious impost in the second century, seems to me a fact beyond all doubt. And, not being then a general imperial tax, it fell upon those provinces that were still flourishing producers of corn. Debasement of currency already lowered the value of money-taxes, and tempted emperors to extend the system of dues in kind. Under Diocletian and Galerius things came to a head. Vast increase of taxation was called for under the new system, and it was mainlytaxation in kind. Already the failure of agriculture was notorious, and attempts had been made to enforce cultivation of derelict lands. The new taxation only aggravated present evils, and in despair of milder measures Constantine attached thecolonito the soil. Important as the legal foundation of the later serf-colonate, this law is historically still more important as a recognition of past failure which nothing had availed to check. He saw no way of preventing a general stampede from the farms save to forbid it as illegal, and to employ the whole machinery of the empire in enforcing the new law. This policy was only a part of the general tendency to fix everything in a rigid framework, to make all occupations hereditary, that became normal in the later Empire. The Codes are a standing record of the principle that the remedy for failure of legislation was more legislation of the same kind. Hard-pressed emperors needed all the resources they could muster, particularly food. They had no breathing-space to try whether more freedom might not promote enterprise and increase production, even had such a policy come within their view. Hence the cramping crystallizing process went on with the certainty of fate. The government, unable to develope existing industry, simply squeezed it to exhaustion.
How came it that the government was able to do this? How came it that agricultural tenants could be converted into stationary serfs without causing a general upheaval[1549]and immediate dissolution of the empire? Mainly, I think, because the act of Constantine was no more than a recognitionde iureof a condition already createdde factoby a long course of servilizing influences. Also because it was the apparent interest, not only of the imperial treasury but of the great proprietors generally, to tie down to the soil[1550]the cultivators of their estates. Labour was now more valuable than land. In corn-growing Africa the importance attached to the task-work of sub-tenants was a confession ofthis. And, law or no law, things had to move in one or other direction. Either the landlord and head-lessee had to win further control of the tenants, or the tenants must become less dependent. Only the former alternative was possible in the circumstances; and the full meaning of the change that turnedde factodependence into legal constraint may be stated as a recognition of thecolonusas labourer rather than tenant. Whether the settlement of barbarians as domiciled aliens in some Provinces under strict conditions of farm-labour had anything to do with the creation of this new semi-servile status, seems hardly to be decided on defective evidence. At all events it cannot have hindered it. And we must make full allowance for the effect of various conditions in various Provinces. If we rightly suppose that the position ofcolonihad been growing weaker for some time before the act of Constantine, this does not imply that the process was due to the same causes operating alike in all parts of the empire in the same degree. The evidence of the Theodosian Code shews many local differences of phenomena in the fourth and fifth centuries; and it is not credible that there was a greater uniformity in the conditions of the preceding age. Laws might aim at uniformity, but they could not alter facts.
My conclusion therefore is that the general character of the imperial system was the main cause of the later serf-colonate. However much the degradation of free farm-tenants, or the admission of slaves to tenancies, or the settlement of barbarians under conditions of service, may have contributed to the result, it was the mechanical nature of the system as a whole that gave effect to them all. After Trajan the rulers of the empire became more and more conscious that the problem before them was one of conservation, and that extension was at an end. Hadrian saw this, and strove to perfect the internal organization. By the time of Aurelian it was found necessary to surrender territory as a further measure of security. We can hardly doubt that under such conditions the machine of internal administration operated more mechanically than ever. Then, when the reforms of Diocletian made fresh taxation necessary to defray their cost, an agricultural crisis was produced by the turning of the imperial screw. The hierarchy of officials justified their existence by squeezing an assured revenue out of a population unable to resist but able to remove. There was no other source of revenue to take the place of the land: moreover, it was agricultural produce in kind that was required. Therefore the central bureaucracy, unchecked by any public opinion, did after its wont. In that selfish and servile world each one took care of his own skin. Compulsion was the rule: thecolonimust be made to produce food: therefore they must be bound fast to the soil, or the empire would starve—and the officials with it.