represented as normally a man of small means. It is true that in the
Digest _conductor_ and _colonus_ are not clearly[1464] distinguished, as
we find them in the African inscriptions and in the later law. For the
former is simply the counterpart of _locator_, properly connoting the
relation between the contracting parties: _colonus_ expresses the fact
that the cultivation (_colere_) of land belonging to another devolves
upon him by virtue of the contract. Every _colonus_ is a _conductor_,
but not every _conductor_ a _colonus_. Now custom, recognized by the
lawyers, provided a means of supplying the small man’s need of capital.
To set him up in a farm, the landlord equipped him with a certain stock
(_instrumentum_). This he took over at a valuation, not paying ready
money for it, but accepting liability[1465] to account for the value at
the end of his tenancy. The stock or plant included[1466] implements
and animals (oxen, slaves, etc), and a miscellaneous array of things,
of course varying with the nature of the farm and local custom. To
this nucleus he had inevitably to add belongings[1467] of his own,
which were likely to increase with time if the farm prospered in his
hands. His rent[1468] might be either a fixed yearly payment in cash
or produce, or a proportionate share of produce varying from year to
year. The money-rent[1469] seems to have been the usual plan, and it
was in connexion therewith that claims for abatement generally arose.
The impression left by the frequent references to _reliqua_ in the
Digest, and the experiences of the younger Pliny, is that tenant-farmers
in Italy were habitually behind with their rents and claiming[1470]
_remissio_. This is probably true of the period (say) 100-250 AD, with
which we are here concerned. It was probably a time of great difficulty
for both landlords and tenants, at least outside the range of suburban
market-gardening. Signs are not lacking that want of sufficient
capital[1471] cramped the vigour of agriculture directly and indirectly.
Improvements might so raise the standard of cultivation on an estate as
to leave an awkward problem for the owner. Its upkeep on its present
level might need a large capital; tenants of means were not easy to find,
and subdivision into smaller holdings would not in all circumstances
provide a satisfactory solution. Moreover, if the man of means was not
unlikely to act independently, in defiance of the landlord, the small man
was more likely to take opportunities of misappropriating things to which
he was not entitled.
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 the _fundus_ does not rather
belong to the _villa_ than the _villa_ to the _fundus_: and the use
of the word _praetorium_[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. Yet _praetoria_ were 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 a _conductor_ or _colonus_ had a right of action to
recover[1477] from the _dominus_ not 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 owner against 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 considerable _instrumentum_, 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 the _colonus_ badly 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 of _coloni_ as 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 his _actor_ or _vilicus_,
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 term _actor_
is superseding[1482] _vilicus_, but the _vilicus_ still 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 slave _colonus_ or _quasi
colonus_[1484] occupying a farm. The financial and general supervision
of the estate is in the hands of the _actor_[1485], who collects all
dues, including rents of _colonie_ and 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] of _actores_ is 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 remained _actor_
of 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
the _actor_ contrived 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 the
_colonus_ takes over slaves supplied by the _dominus_ as an item of
the _instrumentum_. 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 the _fundus_, 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 various subsidiary[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] between
_urbana_ and _rustica mancipia_ was 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 the _latifundia_ of Republican days, seems
indicated by the jurists’ speaking of a slave as _colonus_ or _quasi
colonus_ without 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 a _merces_. 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 hires his own _operae_[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 of _mercennarii_, it is generally if not
always hireling[1501] slaves, not free wage-earners, that are meant.
In a passage[1502] where _servus_ occurs as well as _mercennarius_, 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 free _colonus_, 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 the
_colonus_ as 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 the _instrumentum_ at 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. This _a
priori_ guesswork 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, _colonus_ of a neighbouring _villa_, 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 law
_possessio_ held 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;
_interdicta_ issued 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, _vis_ and _vis 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 of _property_, is not less clear.
But how did it touch the _colonus_? He was, as such, neither owner nor
claimant of the property of his farm. He had in his own capacity[1509] no
_possession_ either. 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 means of 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 average _colonus_ a 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.