The text under discussion raises two broad sets of questions. first, it appears to assume the existence of some combination of obligations and rights, which it signals using the abstract noun colonatus. What did this amount to, and to what extent should it be interpreted as a discrete, defined legal concept? Second, the text refers to coloni who could be alienis censibus adscripti, that is, entered into the census returns of others. How might tenants be registered on the census returns of others, what were the implications of such an arrangement, and was this practice unique to tenants in the period?
The legislation of the fourth and fifth centuries attests a category of tenant farmers, or coloni, registered on the tax rolls in connection with a particular field. The ensuing relationship between tenant and land, which entailed an obligation upon the former for the taxes assessed on the latter, often is signaled in the legal sources by the addition of the terms originalis or originarius. these terms indicate the fundamental importance in the tax system of the late Roman world of the origo, an administrative concept that made it possible to impose a set proportion of a municipality’s tax burden or other clearly identified munera upon a specific area of land.462 Alternatively, coloni might be described as adscripti or adscripticii, terms that referred explicitly to the act of entry upon the tax rolls.463 464
Over the course of the fourth century, legal sources reveal certain restrictions upon the economic behavior of registered coloni. there exist laws forbidding coloni from alienating property, and curtailing their ability to give up their tenancies and move elsewhere.11 the aim of these restrictions was to ensure that the relationship between tenant and field that appeared on the tax rolls continued to be reflected in reality. In this way, a clear hierarchy of fiscal responsibility could be traced. This process is one aspect of a broader phenomenon in the fiscal legislation of the period, namely an attempt to intervene in matters that hitherto had been left to the municipalities. We witness here the impulse to identify publicly, for the purposes of taxation, tenancy arrangements that had up to now been private matters between the two parties. of course, such a tendency was of limited effectiveness. In particular, the enduring, inflexible arrangements that resulted from this impulse bore little resemblance to the agricultural strategies practiced by large and small farmers alike, and many of the legal difficulties surrounding registered tenancy may be traced to a fundamental disjunction between fiscal ideals and economic realities.465 Moreover, not every colonus was registered in the tax rolls, and therefore identifiable as a tenant with fiscal responsibilities through his landlord to the state.466
At any rate, the limitations that the state attempted to place upon registered coloni are often described in a language that evokes the much harsher and more restricted condition of slavery. Registered coloni are referred to as servi terrae, “slaves of the soil,” and their obligation termed quaedam servitus, “a kind of slavery.”14 This is not to say, however, that registered coloni were regarded as slaves, for their status as free men was jealously guarded in the legal sources.15 Furthermore, the act of registration in the tax rolls and the high degree of visibility that this act brought with it led to certain privileges and protections. Landlords were forbidden to expel registered coloni from their fields, or to remove them from land that they planned to sell.16 Coloni also were confirmed in their right to an action against a landlord who demanded more rent than that upon which the two originally had agreed.17 The fiscal motivations behind this legislation are clear, and it seems reasonable to attribute the laws dealing with registered coloni to the needs of the tax system instituted under the Tetrarchy and modified over ensuing reigns.18 the new system was overlaid upon existing systems of assessment and collection in the provinces, which retained their diversity into the fifth century and beyond. similarly, tenancy and labor arrangements continued to exhibit immense variety in the period.19
On the foundation provided by laws concerned with regulating the relationship between registered coloni and the land upon which they were registered, a vast historiographical edifice has been constructed, which can only be broadly summarized here with a view toward commenting upon the limitations that it has placed upon our interpretation of the ancient sources. In the early 1980s, the broad scholarly consensus as to the nature of the “colonate of the late Roman Empire” was subjected to a sustained attack by J.-M. Carrie. In particular, Carrie argued that scholars had become immured in a debate over a historiographical institution rather than a discussion of the evidence for registered tenancy.20 Carrie’s critique stimulated a re-evaluation of both the state of the historiographical debate and the nature of the sources themselves. Much that once was held certain is again the subject of controversy, with scholars fundamentally divided over the nature, 467 468 469 470 471 472 473 character, and origin of this phenomenon. There are, however, also certain points of agreement. scholars generally agree, for example, that the “colonate” was not a generalized condition of rural dependency, and that there was no concerted policy driving the legislation of the fourth century. there also is a consensus of sorts over the perceived erosion of the economic independence of these registered coloni, and their increasing subjection to the control and authority of landowners. The role of landowners as domini of land is taken gradually to have elided with or become analogous to the rights of domini over slaves.474 these arguments amount to an assertion that a ius colonatus developed and solidified over the course of the fourth and early fifth centuries. Such a position rests in part upon the assumption that ancient attestations of the term colonatus came over the course of the fourth century to refer to a unified concept, and the conflation of that concept with the “colonate” (or, better, “colonates”) of contemporary historiography. These propositions will be briefly explored before focusing in particular upon the law under discussion.
There are a mere handful of attestations in fourth - and fifth-century legal sources of the abstract noun colonatus. In each case, the term refers to rural tenancy broadly conceived, but similarities between the specific characteristics of each instance of colonatus are difficult to pin down.475 In the earliest example of the term, colonatus is conceived as a privileged or special type of tenancy, which carries with it exemptions from munera for which an individual might otherwise be held liable. A law directed toward Rufinus, comes orientis, censures curiales who attempt to evade their municipal responsibilities by recourse to a ius colonatus rei privatae, the right of tenancy on imperial estates.476 In this instance, then, registration for the purposes of the tax collection process is not at issue. Rather, colonatus refers simply to a type of tenancy, which is further defined as being attached to imperial estates.
Similarly, a rescript to the prefect of Rome emphasizes the uniqueness of the colonatus it describes, and the special circumstances in which it is enacted. the law directs that individuals found to be begging illegitimately should be given to their proditores, or denouncers, in an arrangement of colonatus perpetuus, “perpetual tenancy.” the measure is redolent of the opus publicum in perpetuam, a punishment inflicted upon criminals of particularly humble status, and upon slaves, which involved heavy labor in the service of the municipality. In this instance, the state may be observed attempting to safeguard the civic community from the threat posed by individuals who are not part of that community’s established power relationships, and who therefore constitute an uncontrolled and threatening element in the city.477 The strategy adopted here is to initiate a private relationship of colonatus, which, it is hoped, will carry with it mutual responsibilities between landlord and tenant. Beyond this vague hope for a mutually binding personal relationship, however, there is no mention here of registration, nor of facilitating the collection of taxes through this arrangement of colonatus.
A law of 400, aimed at maintaining the civic institutions of Gaul, also acknowledges the essentially private nature of the colonatus agreements it describes. These relationships are explicitly contrasted with service in urban curiae, collegia, and burgi, which are obligations to the municipality. The law recognizes that urban and rural activity are difficult to seal hermetically from one another when it censures those who have abandoned their civic duties by fleeing to the country. Importantly, however, it prioritizes service of the municipality over colonatus of both imperial and private estates when it directs that these individuals be recalled to their urban duties, and denies the right of both the state and individual landowners to claim the labor of coloni and inquilini (resident tenants) who have served on a curia, collegium, burgus, or other municipal association for a period of 30 years.478 again, there is no mention of taxation, and no impulse to ensure that coloni be held responsible for the tax burden of land; indeed, the rights of a landowner to the labor of his former colonus are explicitly subordinated to the right of the municipality to exploit his service. In these texts, then, colonatus appears in a variety of contexts, with a diversity of meanings.
With the promulgation of the law under consideration here, the ius colonatus appears to attain a more coherent legal identity that is not completely consistent with the colonatus of earlier legislation, and it remains to be seen whether it can be connected to the “colonates” of contemporary scholarship. the settlement of the sciri displays an awareness of the practice of registering tenants in the census in connection with an estate. It also assumes that this practice brought with it certain limitations and conditions. As with other laws concerning registered coloni, the limitations of this law are as much upon the landowners as they are upon the tenants. Harborers and enticers of fugitive sciri are threatened with “the penalty prescribed for those who receive coloni that are registered in the tax rolls of others or are not their own.” the nature of this penalty can, perhaps, be gleaned from a collection of three laws preserved under the rubric De fugitivis colonis, inquilinis et servis (“on Fugitive Coloni, Inquilini and Slaves”). In the first of these, dated to 332,479 the offending landowner is instructed to return the individual to his origo and to pay the outstanding tax burden assessed on the individual. Later laws threaten a heavy fine.480 similarly, the reference to restrictions upon the landlord’s right to expel or move coloni echoes similar laws from both eastern and western parts of the empire in the second half of the fourth century.481 It seems likely, then, that when the law directs that the sciri are to be made available to landowners “by no other law than that of colonatusf it envisages that they be settled as registered coloni, with responsibilities through their landlords to the state for the tax burden of the land on which they are registered. This is not to say, however, that the settlement of these barbarians was modeled solely or entirely upon a ius colonatus, or is to be equated directly with the “colonates” of contemporary scholarship. the law also reveals the unique circumstances under which their labor was supplied, and displays a concern for security and limitations upon their activities, as might be expected in a case such as this.
Laws concerned with registered coloni are limited in their focus. they also must be placed within the broader context of the fiscal policies of the late Roman state. At the heart of this legislation lies the act of registration itself, which had the potential to impact significantly upon the economic behaviors of landlords and their tenants. the focus in contemporary scholarship upon this phenomenon alone, however, is simultaneously too narrow and too broad. By focusing solely upon the registration of coloni, scholars have ignored the broader context of the late Roman tax system, in which the origo played a crucial part. Indeed, it is the origo, not the registration of coloni, that is the defining feature of the tax system of the period. Although the origines of tenants loom largest, other origines also are visible in the legal sources, where they are accorded both particular fiscal responsibilities and special privileges.482 Equally, by extrapolating legal, social, and economic implications from the act of registration, scholars have accepted uncritically the richly rhetorical language of the legal sources, which exploits the vocabulary of slavery as a convenient, but imperfect, analogy for the limitations it attempts to impose upon registered tenants in the interests of ensuring that they continue to pay their taxes.483 they also have accepted and built upon the impression of cohesion and unity that the emperors responsible for the great codifications of the period sought to convey when they ordered the collection, editing, and organization of the vast mass of heterogeneous and context-specific legislation of the third, fourth, and fifth centuries. The “colonates” of contemporary scholarship represent attempts to impose a sense of order and system upon texts that originally were promulgated for specific reasons, in response to unique problems, in particular circumstances. In the process, scholars have moved well beyond the texts themselves, and proposed interpretations and explanations that betray modern concerns more than ancient understandings. These explanations are of only limited value in the current project, for they ignore the unique circumstances surrounding the settlement of the Sciri, in pursuit of the broader principles that it is taken to illustrate.
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