operated to produce a widespread system of letting to small tenants, it
was naturally an object to levy the rents in such a form as would best
secure a safe and regular return. To exact a fixed money-rent would mean
that the peasant must spend time in marketing his produce in order to
procure the necessary cash, and thereby lessen the time spent in actual
farm-labour. In bad years he would look for an abatement of his rent,
nor would it be easy to satisfy him: here was material for disputes and
discontent. Such difficulties were known in Italy and elsewhere, and
jurists recognized[1431] an advantage of the ‘partiary’ system in this
connexion. An abatement of rent due in a particular year need not imply
that the landlord lost the amount of abatement for good and all. If the
next year produced a ‘bumper’ crop, the landlord was entitled to claim
restitution of last year’s abatement in addition to the yearly rent. This
too, it seems, in the case of a tenant sitting at a fixed money-rent. But
the _partiarius colonus_ is on another footing: he shares gain and loss
with the _dominus_, with whom he is a quasi-partner[1432]. It was surely
considerations of this kind that led to the adoption of the share-rent
system on these great African estates. By fixing the proportion on a
moderate scale, the peasant was fairly certain to be able to pay his
rent, and he would not be harassed with money transactions dependent on
the fluctuations in the price of corn. Under such conditions he was more
likely to be contented and to stay on where he was, and that this should
be so was precisely what the landlord desired. On the other hand the big
_conductor_ might pay rent either in coin or kind. He was a speculator,
doubtless well able to take care of his own interests: probably the
normal case was that he agreed to a fixed cash payment, and only took the
lease on terms that left him a good prospect of making it a remunerative
venture. But on this point there is need of further evidence.
When the emperor took over an estate of this kind, such an existing
organization would be admirably fitted to continue under the fiscal
administration. Apparently this is just what happened. One small but
important improvement would be automatically produced by the change. The
_coloni_ would now become _coloni Caesaris_[1433] and whatever protection
against exactions of _conductores_ they may have enjoyed under the sway
of their former lords was henceforth not less likely to be granted and
much more certain of effect. To the fiscal officials any course of action
tending to encourage permanent tenancies and steady returns would on
the face of it be welcome: for it was likely to save them trouble, if
not to bring them credit. The only influence liable to incline them in
another direction was corruption in some form or other, leading them
to connive at misdeeds of the local agents secretly in league with the
head-lessees on the spot. That cases of such connivance occurred in the
period from Trajan to Severus is not to be doubted. During the following
period of confusion they probably became frequent. But it was not until
Diocletian introduced a more elaborate imperial system, and increased
imperial burdens to defray its greater cost, that the evil reached its
height. Then the corruption of officials tainted all departments, and
was the canker ever gnawing at the vital forces of the empire. But that
this deadly corruption was a sudden growth out of an existing purity is
not to be imagined. All this is merely an illustration of that oldest
of political truisms, that to keep practice conformable to principle is
supremely difficult. The only power that seems to be of any effect in
checking the decay of departmental virtue is the power of public opinion.
Now a real public opinion cannot be said to have existed in the Roman
Empire; and, had it existed, there was no organ through which it could
be expressed. And the Head of the State, let him be ever so devoted to
the common weal, was too overburdened with manifold responsibilities to
be able to give personal attention to each complaint and prescribe an
equitable remedy.
How far we are entitled to trace a movement of policy by the contents of
these African inscriptions is doubtful. They are too few, and too much
alike. Perhaps we may venture to detect a real step onward in the latest
of them. The renewal of the encouragement of squatter-settlers[1434] on
derelict lands does surely point to a growing consciousness that the
food-question was becoming a more and more serious one. Perhaps it may be
taken to suggest that the system of leasing the African domains to big
_conductores_ had lately been found failing in efficiency. But it is
rash to infer much from a single case: and the African Severus may have
followed an exceptional policy in his native province. It is when we look
back from the times of the later Empire, with its frantic legislation to
bind _coloni_ to the soil, and to enforce the cultivation of every patch
of arable ground, that we are tempted to detect in every record symptoms
of the coming constraint. As yet the central government had not laid
its cramping and sterilizing hand on every part of its vast dominions.
Moreover the demands on African productivity had not yet reached their
extreme limit. There was as yet no Constantinople, and Egypt still shared
with Africa the function of supplying food to Rome. Thus it is probably
reasonable to believe that the condition of the working tenant-farmers
was in this age a tolerable[1435] one. If those on the great domains
were bit by bit bound to their holdings, it was probably with their own
consent, so far at least that, seeing no better alternative, they became
stationary and more or less dependent peasants. In other parts of Africa,
for instance near Carthage, we hear of wealthy landowners employing
bodies of slaves. Some of these men may well have been Italians: at least
they took a leading part later in the rising against Maximin and the
elevation of Gordian.
In connexion with the evidence of this group of inscriptions it may
be not out of place to say a few words on the view set forth by
Heisterbergk, that the origin of the later serf-colonate was Provincial,
not Italian. He argues[1436] that what ruined small-scale farming in
Italy was above all things the exemption of Italian land from taxation.
Landlords were not constrained by the yearly exaction of dues to make
the best economic use of their estates. Vain land-pride and carelessness
were not checked: mismanagement and waste had free course, and small
cultivation declined. The fall in free rustic population was both effect
and cause. In the younger Pliny’s time good tenants were already hard
to find, but great landlords owned parks and mansions everywhere. In
the Provinces nearly all the land was subject to imperial taxation in
kind or in money, and owners could not afford to let it lie idle. The
practical control of vast estates was not possible from a distance. The
direction of agriculture, especially of extensive farming (corn etc) from
a fixed centre was little less difficult. There was therefore strong
inducement to delegate the business of cultivation to tenants, and to
let the difference in amount between their rents and the yearly imperial
dues represent the landlord’s profit. Thus the spread of _latifundia_
swallowed up small holdings in the Provinces as in Italy; but it
converted small owners into small tenants, and did not merge the holdings
into large slave-gang plantations or throw them into pasture. The plan of
leasing a large estate as a whole to a big head-tenant, or establishing
him in the central ‘manor farm,’ was quite consistent with the general
design, and this theory accounts for the presence of a population of free
_coloni_, whom later legislation might and did bind fast to the soil.
This argument has both ingenuity and force, but we can only assent to it
with considerable reservations. Letting to free _coloni_ was a practice
long used in Italy, and in the first century AD was evidently becoming
more common. It was but natural that it should appear in the Provinces.
Still, taken by itself, there is no obvious reason why it should develope
into serfdom. With the admitted scarcity and rising value of labour, why
was it that the freeman did not improve his position in relation to his
lord, indeed to capitalists in general? I think the presence of the big
lessee, the _conductor_, an employer of slave labour, had not a little
to do with it. Labour as such was despised. The requirement of task-work
to supplement that of slaves on the ‘manor farm’ was not likely to make
labour more esteemed. Yet to get his little holding the _colonus_ had to
put up with this condition. It may be significant that we hear nothing
of _coloni_ working for wages in spare time. Was it likely that they
would do so? Then, when the _conductor_ came to be employed as collector
of rents and other dues on the estate, his opportunities of illicit
exaction gave him more and more power over them; and, combined with their
reluctance to migrate and sacrifice the fruits of past labour, reduced
them[1437] more and more to a state of _de facto_ dependence. At the
worst they would be semi-servile in fact, though free in law; at the
best they would have this outlook, without any apparent alternative to
escape their fate. This, I imagine, was the unhappy situation that was
afterwards recognized by law.
I must not omit to point out that I have said practically nothing
on the subject[1438] of municipal lands and their administration by
the authorities of the several _res publicae_ or _civitates_. Of the
importance of this matter I am well aware, more particularly in connexion
with the development of _emphyteusis_ under the perpetual leases granted
by the municipalities. In a general history of the imperial economics
this topic would surely claim a significant place. But it seems to
have little or no bearing on the labour conditions with which I am
primarily concerned, while it would add greatly to the bulk of a treatise
already too long. So too the incidence of taxation, and the effects of
degradation[1439] of the currency, influences that both played a sinister
part in imperial economics, belong properly to a larger theme. Even
the writers on land-surveying etc, the _agrimensores_ or _gromatici_,
only touch my subject here and there when it is necessary to speak of
tenures, which cannot be ignored in relation to labour-questions. All
these matters are thoroughly and suggestively treated in Seeck’s great
history of the Decline and Fall of the ancient world. Another topic
left out of discussion is the practical difference, if any, between
the terms[1440] _fundus_ and _saltus_ in the imperial domains. I can
find no satisfactory materials for defining it, and it does not appear
to bear any relation to the labour-question. The meaning of the term
_inquilinus_ is a more important matter. If we are to accept Seeck’s
ingenious conclusions[1441], it follows that this term, regularly used by
the jurists of a house-tenant (urban) as opposed to _colonus_ a tenant of
land (rustic), in the course of the second century began to put on a new
meaning. Marcus settled large numbers of barbarians on Roman soil. These
‘indwellers’ were labelled as _inquilini_, a word implying that they
were imported aliens, distinct from the proper residents. An analogous
distinction existed in municipalities between unprivileged ‘indwellers’
(_incolae_) and real _municipes_. Now a jurist’s opinion[1442] in the
first half of the third century speaks of _inquilini_ as attached
(_adhaerent_) to landed estates, and only capable of being bequeathed
to a legatee by inclusion in the landed estate: and it refers to a
rescript of Marcus and Commodus dealing with a point of detail connected
with this rule of law. Thus the _inquilinate_ seems to have been a new
condition implying attachment to the soil, long before the _colonate_
acquired a similar character. For the very few passages, in which the
fixed and dependent nature of the colonate is apparently recognized
before the time of Constantine, are with some reason suspected of having
been tampered with by the compilers of the Digest, or are susceptible
of a different interpretation. It is clear that this intricate question
cannot be fully discussed here. If these rustic _inquilini_ were in their
origin barbarian settlers, perhaps two conclusions regarding them may be
reasonable. First, they seem to be distinct from slaves, the personal
property of individual owners. For the evidence, so far as it goes,
makes them attached[1443] to the land, and only transferable therewith.
Secondly, they are surely labourers, tilling with their own hands the
holdings assigned to them. If this view of them be sound, we may see in
them the beginnings of a serf class. But it does not follow that the
later colonate was a direct growth from this beginning. We have noted
above several other causes contributing to that growth; in particular the
state of _de facto_ fixity combined with increasing dependence, in which
the free _colonus_ was gradually losing his freedom. Whether the later
colonate will ever receive satisfactory explanation in the form of a
simple and convincing theory, I cannot tell: at present it seems best to
admit candidly that, among the various influences tending to produce the
known result, I do not see my way[1444] to distinguish one as supremely
important, and to ignore the effect of others. The opinion[1445] of de
Coulanges, that the origin of the later colonate is mainly to be sought
in the gradual effect of custom (local custom), eventually recognized
(not created) by law, is perhaps the soundest attempt at a brief
expression of the truth.
XLIX. THE JURISTS OF THE DIGEST.
For the position of the _colonus_ in Roman Law during the period known
as that of the ‘classic’ Jurists we naturally find our chief source of
evidence in the Digest. And it is not surprising that here and there we
find passages bearing on labour-questions more or less directly. But in
using this evidence it is most necessary to keep in mind the nature and
scope of this great compilation. First, it is not a collection of laws.
Actual laws were placed in the Codex, based on previous Codes such as
the Theodosian (439 AD), after a careful process of sifting and editing,
with additions to complete the work. This great task was performed by
Justinian’s commissioners in 14 months or less. The Justinian Code was
confirmed and published in 529 AD, and finally in a revised form rather
more than five years later. Secondly, the Digest is a collection of
opinions of lawyers whose competence and authority had been officially
recognized, and whose _responsa_ carried weight in the Roman courts.
From early times interpretation had been found indispensable in the
administration of the law; and in the course of centuries, both by
opinions on cases and by formal treatises, there had grown up such a
mass of written jurisprudence as no man could master. These writings
were specially copious in the ‘classic’ period (say from Hadrian to
Alexander 117-235). Actual laws are sometimes cited in the form of
imperial decisions, finally settling some disputed point. But the normal
product of discussion is the opinion of this or that eminent jurist as
to what is sound law in a particular question. The different opinions of
different authorities are often quoted side by side. If this were all, we
might congratulate ourselves on having simply a collection of authentic
extracts from named authors, conveying their views in their own words.
And no doubt many of the extracts are of this character.
But the position is not in fact so simple as this. Tribonian and his
fellow-commissioners were set to work at the end of the year 530. Their
task was completed and the _Digesta_ published with imperial confirmation
at the end of 533. Now the juristic literature in existence, of which
the Digest was to be an epitome superseding its own sources, was of such
prodigious bulk that three years cannot have been sufficient for the
work. To read, abstract, classify, and so far as possible to harmonize,
this mass of complicated material, was a duty surely needing a much
longer time for its satisfactory performance. Moreover, as this official
Corpus of jurisprudence was designed for reference and citation as an
authority in the courts, it had to be[1446] brought up to date. That
this necessity greatly increased the commissioners’ burden is obvious:
nor less so, that it was a duty peculiarly difficult to discharge in
haste, and liable, if hurried, to result in obscurities inconsistencies
and oversights. That much of the Digest has suffered from overhaste in
its production is now generally admitted. Its evidence is therefore to
be used with caution. But on the subject of _coloni_ the main points of
interest are attested by witnesses of high authority, such as Ulpian, in
cited passages not reasonably suspected of interpolation. And it is not
necessary to follow up a host of details. We have only to reconstruct
from the law-sources the characteristic features of agriculture and
rustic tenancy as it existed before the time of Diocletian; and these
features are on the whole significant and clear. Fortunately we are
not entirely dependent on collection and comparison of scattered
references from all parts of the great compilation. One title (XIX 2
_locati conducti_)[1447] furnishes us with a quantity of relevant matter
classified under one head by the editors themselves.
First and foremost it stands out quite clear that the _colonus_ is a
free man, who enters into a legal contract as lessee with lessor, and
that landlord and tenant are equally bound by the terms of the lease.
If any clause requires interpretation owing to special circumstances
having arisen, the jurist endeavours to lay down the principles by which
the court should be guided to an equitable decision. For instance, any
fact by which the productiveness of a farm and therewith the solvency
of the tenant are impaired may lead to a dispute. Care is therefore
taken to relieve the tenant of responsibility for damage inflicted by
irresistible force (natural or human)[1448] or due to the landlord’s
fault. But defects of climate and soil[1449] give no claim to relief,
since he is presumed to have taken the farm with his eyes open: nor does
the failure of worn-out fruit trees, which tenants were regularly bound
by their covenant to replace. The chief rights of the landlord[1450]
are the proper cultivation of the farm and regular payment of the
rent. In these the law duly protects him. The tenant is bound not to
let down the land by neglect, or to defraud[1451] the landlord by
misappropriating what does not belong to him: rent is secured normally
by sureties (_fideiussores_)[1452] found by the tenant at the time of
leasing, or sometimes by the fact that all property of his on the farm
is expressly pledged[1453] to the lessor on this account. Thus it is the
aim of the law to guard the presumably poorer and humbler party against
hard treatment, while it protects the man of property against fraud. In
other words, it aims at strict enforcement of the terms[1454] of lease,
while inclined to construe genuinely doubtful points or mistakes in
favour[1455] of the party bound. That landlord and tenant, even in cases
of fixed money rent, have a certain community[1456] of interest, seems
recognized in the fact that some legal remedies against third persons
(for malicious damage etc) could in some cases be employed[1457] by
either landlord or tenant. In short, the latter is a thoroughly free and
responsible person.
That a tenant should be protected against disturbance[1458] was a matter
of course. During the term of his lease he has a right to make his lawful
profit on the farm: the landlord is not only bound to allow him full
enjoyment (_frui licere_), but to prevent molestation by a third party
over whom he has control. Indeed the tenant farmer has in some relations
a more positive protection than the landlord himself. Thus a person
who has right of _usus_ over an estate may in certain circumstances
refuse[1459] to admit the _dominus_; but not the _colonus_ or his staff
of slaves employed in the farm-work. Change of ownership can perhaps
never be a matter of indifference to the sitting tenant of a farm. But
it is the lawyer’s aim to see that the passing of the property shall not
impair the tenant’s rights under his current lease. A lease sometimes
contained clauses fixing the terms (such as a money forfeit)[1460] on
which the contract might be broken; in fact a cross-guarantee between
the parties, securing the tenant against damage by premature ejectment
and the landlord against damage by the tenant’s premature quitting. The
jurists often appeal to local custom as a means of equitable decision on
disputed points. But one customary principle seems to be recognized[1461]
as of general validity, the rule of _reconductio_. If, on expiration
of a lease, the tenant holds on and the landlord allows him to remain,
it is regarded as a renewal of the contract by bare agreement (_nudo
consensu_). No set form of lease is necessary; but this tacit contract
holds good only from year to year. Another fact significant as to the
position of the _colonus_ is that he is assumed to have the right to
sublet[1462] the farm: questions that would in that case arise are dealt
with as matters of course. I suppose that a lease might be so drawn as
to bar any such right, but that in practice it was always or generally
admitted. Again, it is a sign of his genuinely independent position
in the eye of the law that his own oath, if required of him, may be
accepted[1463] as a counter-active plea (_exceptio iurisiurandi_) in his
own defence, when sued by his landlord for damage done on the farm.