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T HE C OL O NA TE IN THE RO M AN EM P IRE

The fourth and fifth centuries AD gave rise to a particular phenomenon


in the Roman Empire: the colonate. The colonate involved the fiscal
regulation of a relationship of surety between landowners and farmers in
the later Roman Empire and played a major role in agrarian and social
relations, with implications for these farmers’ freedom of movement and
transmission of status. This study provides a clear and comprehensive
reassessment of the legal aspects of the phenomenon, embedding them
as far as possible in their legal, social and economic contexts. As well as
taking the innovative approach of working retrogradely, or backwards
through time, the volume provides a thorough assessment of two critical
sources, the Theodosian and Justinian Codes, and will therefore be an
invaluable resource for students and scholars of Roman law and the
agricultural and social history of late antiquity.

boudewijn sirks is Emeritus Regius Professor of Civil Law at the


University of Oxford and an Emeritus Fellow of All Souls College. He
was formerly Professor of Private Law and Legal History at the J.W.
Goethe-Universität Frankfurt and is currently Member of the
Consiglio Direttivo of the Associazione Storico-Giuridica
Costantiniana.

Published online by Cambridge University Press


Published online by Cambridge University Press
THE COLONATE
IN THE ROMAN EMPIRE

BOUDEWIJN SIRKS
University of Oxford

Published online by Cambridge University Press


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Cambridge University Press is part of Cambridge University Press & Assessment,


a department of the University of Cambridge.
We share the University’s mission to contribute to society through the pursuit of
education, learning and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781009172608
doi: 10.1017/9781009172585
© Boudewijn Sirks 2024
This publication is in copyright. Subject to statutory exception and to the provisions
of relevant collective licensing agreements, no reproduction of any part may take
place without the written permission of Cambridge University Press & Assessment.
First published 2024
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
names: Sirks, Adriaan Johan Boudewijn, author.
title: The Colonate in the Roman Empire / Boudewijn Sirks, University of Oxford.
description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press,
2023. | Includes bibliographical references and index.
identifiers: lccn 2023026047 | isbn 9781009172608 (hardback) | isbn 9781009172592
(paperback) | isbn 9781009172585 (ebook)
subjects: lcsh: Colonate. | Colonate – Social aspects. | Colonate – Economic aspects. |
Colonatus (Roman law) | Land tenure (Roman law) | Farm tenancy (Roman law) | Peasants –
Rome. | Agricultural laws and legislation (Roman law) | Serfdom (Roman law)
classification: lcc kja2202 .s57 2023 | ddc 340.5/4–dc23/eng/20230609
LC record available at https://lccn.loc.gov/2023026047
isbn 978-1-009-17260-8 Hardback
Cambridge University Press & Assessment has no responsibility for the persistence
or accuracy of URLs for external or third-party internet websites referred to in this
publication and does not guarantee that any content on such websites is, or will
remain, accurate or appropriate.

Published online by Cambridge University Press


Contents

Introduction page 1
1 The Status Quaestionis : General Approaches 3
2 Sources and Working Method 12
2.1 Sources 13
2.2 Justification of the Retrograde Research
Method Applied Here 17
2.3 Terminology 24

1 The Colonate in the East under Justinian, 527/534–565/642 30


3 Introduction and Background to Justinian’s Code 30
4 The Coloni in Book 11 of Justinian’s Code 32
5 CJ 11.48.20–24: The Central Texts on the Colonate 35
6 Entering or Imposing the Condicio Coloniaria 36
7 Effects of the Colonate: Potestas and Peculium 42
7.1 Coloni Are in the Potestas of the Estate Owner 42
7.2 Their Assets Are Considered Peculium 45
7.3 The Reality of the Potestas and Peculium 49
8 Paying Taxes 52
8.1 Taxes and Taxation 52
8.2 The Colonus as Taxpayer 55
8.3 The Landowner Is Factually and Administratively Surety
of the Capitatio Humana 58
9 Occupations of Coloni 61
10 Transmission of the Condicio and the Effect of the Abolition
of the Senatusconsultum Claudianum 67
10.1 Transmission of the Condicio 67
10.2 The Abolition of the Senatusconsultum Claudianum
and the Condicio Coloniaria 69
10.3 The Coniugium Non Aequale 74
10.4 Unions between Adscripticii and Slaves 78
10.5 Other Cases of the Coniugium Non Aequale 79
10.6 Developments after the Abolition of the Senatusconsultum
Claudianum 81

Published online by Cambridge University Press


vi Contents
11 Moving Coloni to Other Places 85
12 Coloni Who Migrate and Recalling Them 89
12.1 Reasons for Migrating 89
12.2 Recalling Coloni 91
12.3 Limitation of Prescription against Recall 96
12.4 Immunities against a Recall 97
12.5 Another Way of Losing Labour: Exposition 98
13 Release from the Colonate and the ‘Free’ Colonate 99
13.1 Incidental Private Release 99
13.2 Institutional Release: Anastasius’ Constitution 100
13.3 Institutional Release: Justinian’s Constitutions 104
13.4 Other Interpretations of CJ 11.48.19 105
13.5 Anastasius’ Motives 107
14 Public and Procedural Aspects of the Colonate 109
14.1 Social Mobility 109
14.2 Procedural Privileges 110
14.3 Criminal Law and Abuse of Power 111
15 The Coloni on State and Imperial Lands: CJ 11.63–64, 68–69 112
15.1 General 112
15.2 Coloni on Patrimonial Land (Fundi Patrimoniales),
Emphyteuticarian Land (Fundi Emphyteuticarii),
and Combined Estates (Saltus) 122
15.3 Coloni on Land of the Res Privata (Fundi Rei Privatae) 123
15.4 Coloni on Land of the Imperial House (Fundi Divinae
Domus or Domus Augustae) 126
15.5 Coloni on Land of the Fisc (ταμιεῖον) 127
15.6 A Reason for the Privileges? 128
16 The ‘Free’ Colonate 129
17 The ‘Free’ Colonate: A Byzantine Serfdom? 133
18 Farmers Not Subjected to the Colonate 135
19 Conclusions 138
19.1 The Colonate under Justinian 138
19.2 Open Questions 144
19.3 Different Interpretations 144

2 The Colonate in the Year 438 in Theodosius’ Code 147


20 Introduction 147
20.1 General 147
20.2 The Structure of the Theodosian Code 149
20.3 The Place of the Coloni in the Code 150
21 The Background to the Law in the Theodosian Code 152
22 The Term Colonus 156
23 Entering the Condicio Coloniaria 157
23.1 Condicio and Condicionalis 157
23.2 Origin of the Colonate 160

Published online by Cambridge University Press


Contents vii
23.3 Origin of the Colonate in the East 161
23.4 Origin of the Colonate in the West 167
24 Effects of the Colonate: Potestas and Peculium 167
24.1 Effects of the Colonate in the East 169
24.2 Effects of the Colonate in the West 173
24.3 Summary 180
25 Taxation and Complying with Taxes 181
25.1 Taxes and the Coloni in the East 183
25.2 Taxes and the Coloni in the West 186
26 Transmission of the Condicio and the Effect of the Senatusconsultum
Claudianum 190
26.1 In the East 190
26.2 In the West 191
26.3 The Coniugium Non Aequale 194
26.4 The Coniugium Non Aequale and the Various Categories
of Condicionales 198
27 Moving Coloni to Other Places 199
27.1 Moving Coloni in the East 201
27.2 Moving Coloni in the West 202
28 Coloni Who Migrate and Recalling Them 205
28.1 Flight in the East 206
28.2 Flight in the West 206
28.3 Problems with Reclaiming Coloni : Death, Marriage, Offspring 211
29 Public and Procedural Aspects of the Colonate 215
29.1 In the East 215
29.2 In the West 215
30 Coloni Originales on State and Imperial Lands 216
31 Coloni on Patrimonial Land (Fundi Patrimoniales)
and Emphyteuticarian Land (Fundi Emphyteuticarii) 217
31.1 In the East 218
31.2 In the West 220
32 Coloni on Land of the Res Privata (Fundi Rei Privatae)
and of the Imperial House (Fundi Divinae Domus or Domus Augusta) 220
32.1 The Res Privata 220
32.2 Coloni Dominici on Land of the Imperial House 222
33 The Patrocinium Vicorum, Vicani, Coloni Homologi, and Rusticani 223
34 The ‘Free’ Colonate 232
35 Farmers Not Subjected to the Colonate 233
36 Texts Not Necessarily Connected with the Colonate 234
37 Conclusions 234
37.1 Beginning of the Condicio 235
37.2 Taxation and Taxes 236
37.3 Transfer of Land 237
37.4 Features of the Colonate 237
37.5 Recalling 238

Published online by Cambridge University Press


viii Contents
3 The Colonate in the East, 438–527 240
38 Enactments by the Emperors in 438–527 240
38.1 Theodosius II (402–455) 240
38.2 No Constitutions on Coloni by Marcianus (455–457)
Have Been Transmitted 241
38.3 Leo (457–473) 241
38.4 Zeno (474–491) 243
38.5 Anastasius (491–518) 245
38.6 Constitutions Not Included 247
39 Comparing the Situation in 534 and 438 247

4 The Colonate in the West, 438–ca. 506 249


40 The Situation in the West, 438–ca. 506 249
40.1 Sources 249
40.2 Background 251
41 The Posttheodosian Novels in the Roman West, 438–post 506 254
41.1 General 254
41.2 Valentinian III 256
41.3 Majorian 262
41.4 Severus 263
42 The Council of Orange of 441, Sidonius Apollinaris ep. 5.19,
and Remigius of Reims 264
43 The Colonate in Vandal Africa 268
44 Farmers Not Subjected to the Colonate 269
45 The Colonate in the Breviarium Alaricianum Alias the Lex Romana
Visigothorum of 506 (Southern Gaul, Septimania,
and Visigothic Spain): Status 269
46 The Colonate in the Breviarium Alaricianum: Obligations
and Restrictions 280
47 The Colonate in Legal Writings 282
48 The Coloni in the Summaria Antiqua, 535–554 286
49 Nachleben and Conclusions 287

5 The Colonate between Theodosius’ Code and Diocletian


and the Third Century, 438–293/268/249 292
50 The Period 438–293/268/249 292
50.1 Development in the East in 438–364 292
50.2 Development in the West in 438–364 293
50.3 Development before 364 293
51 A Connection with Diocletian’s Tax Reforms? 294
52 Farmers in the Middle of the Third Century: The Heroninos
Archive, AD 249–268 295
53 Oiketai and Metrèmatiaioi : A Pre-colonate? 301
54 Moulding the Paramonè into the Roman Law 306
55 Was There a Colonate? 308

Published online by Cambridge University Press


Contents ix
56 Reconstruction of a Chronology of the Colonate 309
56.1 Development in the West between 364 and 438 316
56.2 Development in the East between 364 and 438 318
56.3 Development after the Theodosian Code 320

Bibliography 321
Sources and Abbreviations 321
Secondary Literature 322
Index Locorum 338
General Index 347

Published online by Cambridge University Press


Published online by Cambridge University Press
Introduction

The purpose of this book is twofold. On the one hand it intends to provide
a survey and analysis of the colonate in the Roman Empire from the legal
point of view, embedded as much as necessary in the social and economic
context of Roman society. On the other hand, it is meant to show how to
approach the sources in a case like this and, in general, how to work with
the codes of Theodosius and Justinian, in a way that does justice to the
place of the texts in the whole of these codifications, that is, taking account
of their function within a codification. The individual texts have their
value as historical sources, yet one must be aware how they have come to
us, in which context and to which purpose they were selected and edited, or
else their historical value might diminish or even disappear.
This is in the first place a legal-historical work. It means that its first aim
is to look for legal rules. Legal rules are meant to arrange life and are
imposed if not followed. In order to get a sound notion of a legal phenom-
enon, here the colonate, it is necessary to collect all rules and to check them
against each other until a systematic survey is achieved. This may seem a bit
overdone to non-jurists, but the old Byzantine scholia to Justinian’s
compilation prove that systematisation was all-important to the
Byzantine jurists and Justinian’s compilation is a product of this drive
for systematisation. These jurists did not invent this. They were pupils and
successors to a line of jurists, teaching in Constantinople, Beyrouth, and
other places the same systematisation. We know only two of their names:
Domninos and Patroklos, called the heroes. And they in their turn were
continuing the same drive which existed in the classical period of Roman
law, as the surviving remnants in Justinian’s compilation prove. Also, the
imposition of rules required consistency. It is thus helpful, if not necessary,
to have a good grasp of Roman law and of the exegesis of legal texts. It
seems exaggerated, yet it is the warning that counts: search for the system
behind it, because those who formulated the law worked in that system.
For these reasons it is necessary to check all possible sources and see
1

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2 Introduction
whether such a consistency is present and makes it possible to speak of
a rule. Moreover, the codes are embedded in a broader body of law which
one should also keep in mind.1 My research may be boring because of this
at some moments, but it is absolutely necessary. I have relegated to
footnotes what should be present but was not directly necessary for the
main argument. Texts can be found through the index.
Still, since law is meant to register the rules followed and to impose these
if not followed, it is connected with the way humans interact and society
functions. In one way, it follows what people do and what things they
think should be done; in another way, it regulates behaviour, both when
that behaviour is deviant and has to be corrected, and when behaviour or
circumstances arise which were not yet foreseen. In that case new rules are
issued to address such problems. Law is embedded in society and there is
no society without law.2 And although in general society was rather
conservative and legislation consequently more reactive and conservative,
innovations happened too. Ancient man was not afraid of or averse to new
things (like accepting debt acknowledgements in the form of chirographs
as negotiable papers). Still, those structures set up to continue for a long
time were not changed rashly. For example, the administrative structures of
the overseas transportation of grain from Africa and Egypt to Rome and
Constantinople remained basically unchanged for two or three centuries,
only to be adapted in the east in 409. The same goes for taxation, which
under Diocletian was probably more straightened and homogenised than
set on a completely new footing and remained so until the Justinianic
reforms.
We shall see the same with the colonate: not fallen from the sky, it was
incorporated in public law to continue with the necessary adaptations for
more than three centuries. Its predecessor was an answer to particular
economic needs, it required certain economic conditions, it may have
competed with other solutions to the same or similar problems, it evolved
under the pressure of changing circumstances, and it was adapted to
counter undesirable uses.
Wherever possible, the cause of changes or introduction of new rules
will be discussed, but apart from that a final chapter is destined to put the
entire history of the colonate in a more historical perspective. It will not

1
See for an example the table in Sirks 2007, § 24.
2
I do not refer to the Natural Lawyers like Grotius, but put merely the question whether we can speak
of a society if there is no minimum of law, and second, more empirically, I refer to Kramer 1956, From
the tablets of Sumer, Twenty-five firsts in man’s recorded history. As Hesiod said, law distinguishes man
from animal.

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1 The Status Quaestionis : General Approaches 3
always be possible to make quantitative statements about the field of
application, for example whether the colonate covered the entire farming
population of the Empire (by the way, far from likely). Rules are made or
issued when something is simply necessary, such as organising care for
insane people, or when something turns up which is sizeable or important
enough that it requires regulation. Nobody will assume from the extent of
the regulations about the cura furiosi that a large part of the population is
insane. With theft, it is the same: it is considered such an outrage to
property that it cannot be tolerated, regardless of the frequency.
However, in the punishment we can also see the value a society (through
its courts) attaches to this: the death penalty in archaic times, the death
penalty for grand larceny in the Bloody Code in the UK of the late
eighteenth century, a few years of imprisonment nowadays. The same
applies when we research other ancient laws. The lex Pompeia de parricidis
expresses the societal horror over parricide by its special punishment
(death), but we do not find any application of this.

1 The Status Quaestionis : General Approaches


The colonate is part of the antique agricultural exploitation. Perhaps in the
archaic Mediterranean world all farmers were working on their own
individual plots of land without any assistance (although it seems that,
considering the dominant role of the community, anybody would have
relied on the community and the community on him); but as early as there
existed some division between more and less rich members of
a community, there existed also some relation determined by dependency
between these richer and poorer members. For Roman society the phe-
nomenon of the clientela is known. We can leave aside the questions of
when in Republican Rome the large estates came into existence and when
and to what extent there existed farmers who no longer tilled their own
land but rented land and tilled it in exchange for rent in money or share-
cropping.3 It suffices for the present to state that around AD 200 agricul-
ture in the Roman Empire was done according to various legal and
economic models. There existed the farmer who worked his own land,
be it alone (with, undoubtedly, the assistance of his family) or with some
farm hands (slaves or free persons). There existed the lessee, who paid rent
in money (and who might be assisted by a remission in years of dearth) or
in kind. If the measure of the rent was expressed as a fraction of the harvest,

3
See, for example, Scheidel et al. 2007; more specialised is De Neeve 1985.

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4 Introduction
it was share-cropping. There were the large estates (latifundia) which were
tilled by slaves of the estate owner if not issued in plots on lease, sometimes
under the supervision of a head slave (vilicus). These could be attached to
the land as instrumentum and live quasi as a family with wife and children.
As we know from the Heroninos archive, large landownership did not
necessarily mean an extended estate such as a Communist kolkhoz or an
East German Kombinat : it will rather have consisted of all kinds of plots of
land, which were individually administered within a centralised account-
ing and management system. The guiding economic and managerial
principle was to reduce loss as much as possible by reducing costs and
using what was available.4 Investments were made, for example, in improv-
ing land and setting up irrigation,5 but whether this was possible will have
depended on the availability of time and capital. Richer people will have
been in a better position here, but a dependency relation may have been
advantageous in this respect. As somebody who was a freedman of a rich
family will have had easier access to investment capital through his
dependence on his patron, so a farmer who was a cliens of a rich patron
will have had easier access to resources too. In both cases they paid a price as
well, namely in independence, but the balance may have been advanta-
geous for both sides.
Cities and temples possessed agricultural land and issued this in the form
of long leases against a fixed rent (vectigal ). These lessees enjoyed a right of
lease which resembled that of an owner, it being hereditary and they being
protected against disturbances by a possessory interdict.6 The emperor
possessed land which he issued in diverse forms. It could be as a normal
lease to an individual lessee, or to a head lessee (conductor) who would
sublet parcels to (under)lessees. It could be done on a more permanent
basis through an imperial conductor with lease conditions fixed for all, as
the lex Manciana of Africa shows. In the Later Empire we find another
form of land issue, where these lands are called fundi patrimoniales. Here
the emperor donated Treasury land to somebody under certain conditions,
usually that a yearly rent (canon) had to be paid. The donee could not
dispose of the land by sale or gift, but his right was hereditary. Failure to
pay the canon resulted in withdrawal of the gift. As such, it resembled the
long lease for a vectigal, which was also a hereditary tenure. But it could
happen that the issue was done sine canone, or iure privato. In the first case,
the donee did not have to pay a canon ; in the latter case, the donee could

4
Rathbone 1991, 396. His reflection on the response to his book is in Rathbone 2005.
5 6
Cf. CJ 3.34.7, 11.43.4, 11.63.1 for legal evidence. Kaser 1975, 374, 388.

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