19.8. The Establishment of the Colonate
The policy of compulsion and the spread of caste were undoubtedly responsible to a great extent for another social process of great moment, namely, for the formation of the colonate, an institution destined to play an important part in medieval peasant life. Its roots stretch far back into the earlier history of Roman husbandry. Columella, a writer on agriculture of the first century A.D., instructs his readers that it is advantageous for owners of estates of insufficient fertility and difficult cultivation to employ free farmers, coloni, instead of slaves. The tenants were sometimes settled on the metayer system (colonia partiaria), the farmer sharing crops with the owner. Juridically the relation was regulated by the rules of the law of lease (locatio conductio) and the Digest often refers to the various problems arising under this contract; custom and tacit agreement played a great part in the treatment of such questions in practice.
By the side of contractual relations between private landlords and tenants stood administrative regulations as to the management of vast domains of the Crown and of the private patrimony of the Emperor. Crowds of tenants were settled on these estates who had to look for a guarantee to the possession of their holdings rather to the equity and properly understood interest of their imperial masters than to formal contractual right. Lastly, a good many slaves were put into a position similar to that of the tenants of free birth, and as a matter of fact, it got to be more and more difficult to distinguish between coloni by contract and quasi-coloni by long usage and customary tenure. One trait which tended to reduce the distance between the different groups was the heavy indebtedness of most free farmers: they had often to take their agricultural outfit from the landowner along with the farm; in case of economic difficulties they turned to him as to their natural protector and a capitalist near at hand, and when once debts had been made, it was exceedingly difficult to pay them off.
Fourth-century legislation approaches these relations in its usual despotic manner. A law of Constantine dated A D. 332 gives us the first glimpse of a new order of men standing between the free and the unfree and treated, in fact, as serfs of the glebe. It runs thus: "With whomsoever a colonus belonging to someone else (alieni juris) may be discovered, let the new patron not only restore the colonus to the place of his birth (origini), but let him also pay the tax for the time of his absence. As for the coloni themselves who contemplate flight, let them be put into fetters after the manner of slaves, so that they should perform duties worthy of freemen on the strength of a servile condemnation" (C. Th v. 17, 1).
But from Constantine again we have another enactment marking the other side of the condition, namely, the legal protection afforded to the colonus against possible exactions. About A.D. 325 the Emperor laid down in a rescript to the vicarius of the East that, "a colonus from whom a landlord exacted more than it was customary to render and than had been obtained from him in former times, may apply to the judge nearest at hand and produce evidence of the wrong. The person who is convicted of having claimed more than he used to receive shall be prohibited to do so in the future after having given back what he extorted by illegal superexaction." (C. Just. XL 50, 1).
The legal protection afforded to the coloni was not suggested by principles of humanity, but by the necessity of keeping up at least some portion of the previous personal freedom of these peasants in order to safeguard the interest of the State which looked upon this part of the population as the mainstay of its fiscal system. If the emperors made light of the right of free citizens to choose their abode and their occupations as they pleased and did not scruple to attach the coloni to their tenures, the absolute right of landowners to do what they pleased with their land was not more sacred to them. Constantine imposed the most stringent limitations on their power of alienating plots of land. "If someone wants to sell an estate or to grant it, he has not the right to retain coloni by private agreement in order to transfer them to other places.
Those who consider coloni to be useful, must either hold them together with the estates or, if they despair of getting profit from these estates, let them also give up the coloni for the use of other people" (C. TL. xm. 10, 3; A.D. 357). In the reign of Yalentinian, Valens, and Gratian, about A.D. 375, this principle is characteristically extended to the very slaves. "As born cultivators (originani) cannot be sold without their land, even so it is forbidden to sell agricultural slaves inscribed in the census rolls. Nor must the law be evaded in a fraudulent manner, as has been often practised in the case of originani, namely, that while a small piece of land is handed over to the buyer, the cultivation of the whole estate is made impossible. But if entire estates or portions of them pass to a new owner, so many slaves and 'born cultivators' should be transferred at the same time as used to stay with the former owners in the whole or in its parts" (C. Just. xi. 48, 7).
The fiscal point of view is clearly expressed on many occasions. Valentinian and Valens entrust the landowners with the privilege of collecting the taxes of their coloni for the State with the exception of those tenants who have besides their farms some land of their own (C. Th. xi. 1, 14). This right and duty might be burdensome, but it certainly gave the landlords a powerful lever in reducing their free tenants to a condition of almost servile subjection. Perhaps the most drastic expression of the process may be seen in the fact that coloni lose their right to implead their masters in civil actions except in cases of superexaction. In criminal matters they were still deemed possessed of the full rights of citizens (C. Just. xi. 50, 2).
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