The Colonate in Justinian'sReign

A. J. B. SIRKS

Every studyof the colonate of theLater Roman Empire is confronted with the legal
sourcesinTheodosius' and Justinian's Codes. Since theseconsistof fragments of imperial
constitutions, usuallyenteredintotheCode with addressee,date and issuingemperor,it is
verytemptingtoconsiderthemas fragments per se, as unrelatedhistoricalfactswhich are
oftenbut feebleimagesof theoriginal.They have been put, it is true,intotitleswhich are
said to deal eachwith a particularsubject,but does thismake the individualfragments
relateto each other?
Such a viewof theseCodes would be comparable to readinga sentenceina languagethe
grammarofwhich one does not know: theremay be individualwords which one might
understandbut coherence is lacking.And thereare certainlycollectionsof legal rules
which do indeedlackcoherence,which are nothingbut a disorderly mess. Yet even fora
law collectionas earlyasHammurabi's Code ithas been argued thatit is to some extent
structured That is certainlythecasewith theRoman law
and thatcaution is necessary.1
codes.The orderof thepraetorianedictmay have been a historicalgrowthonly; itnever
theless served for centuriesas a structurefor commentaries,and theGregorian and
HermogenianCodes, aswell as thetwoabove-mentioned Codes, inpart followeditsstruc
ture.Butwith each code also an effortwas made toorganize thematerial systematically.
Moreover, twootherstructures were used in legalwritings:thatof Sabinus' treatment of
thecivil law, and the institutional
system,ofwhich Gaius' gained greatpopularity.The
commentarieson theedict and Sabinus' treatise,as well as the institutional works, are
evidenceof thefactthatRoman lawwas an intellectualsystem. And as in thecase of the
sentenceina foreignlanguagetheremedypresentsitself(thegrammar),so here it isbetter
to take thecodificationseriouslyand toconsideritfromthelegalpointof view, thatis,as
Justinianhimselfsaid for theDigest, 'sit una concordia una consequentia adversario
nemineconstituto'(CJ I.I7.i.8), ratherthandiscardingthecodificationas such.2

I JUSTINIAN'S CODE

Those twocodifications3were builtaround a structure.

For Justinian's
Code, thestructure
ofTheodosius' Code4 firstservedas an example,but itwas completelyoverhauledforthe
second editionof A.D. 534. The compilersput the textstheyconsideredrelevantat the
place in thestructuretheyconsideredappropriate.This had important consequences.

1
See R. Westbrook, 'The nature and origin of the XII Tables', ZSS-rA 105 (1988), 74ff., who strongly argues that
various sanctions inHammurabi's Code must be read as theoretical discursions. But a lot of European medieval
town statutes are indeed mere compilations of enforceable social rules without much or any coherence.
2
This was certainly not meant as a mere aspiration. Between A.D. 529 and 534 Justinian took the so-called
'Quinquaginta Decisiones' to resolve long-standing questions. In the Digest there are indeed still differences of
opinion, but these served to deepen legal discussion and doctrine; the Code was primarily meant for practice. As
regards the similarities and contrarities mentioned in c. Cordi 3, see A. J. B. Sirks, 'From the Theodosian to the
Justinian Code', in Atti dellAccademia Romanistica Costantiniana 6 (1983 [1986]), 299-300, and idem, 'The
Summaria Antiqua Codicis Theodosiani in the ms. Vat. reg. Lat. 886', ZSS-rA 113 (1996), 257-9, 267.
3 use
I the word codification in the wide sense of a compilation of rules, brought into a more or less systematic
structure, and not in the far more restricted modern sense of a code.
4
On the Theodosian Code, see J.Matthews, Laying Down the Law (2000); F. Millar, A Greek Roman Empire:
Power and Belief under Theodosius II (408-450) (2006); A. J. B. Sirks, The Theodosian Code. A Study (2007).

JRS 98 (zoo8), pp. I20-143. ? World Copyright Reserved.

Exclusive Licence to Publish: The Society for the Promotion of Roman Studies 2008
 THE COLONATE IN JUSTINIAN S REIGN 121

Firstof all, thefactthatat a certainmoment in timeall data consideredparticularto a

subjectare collected is alreadya statementaboutwhat people at thatmomentconsidered
relevantto thatsubject.These datamay vary inage, and they may certainlyalso be judged
upon theirvalue at theirdate of issue,but theyhave an independent and perhapsdifferent
value forthemoment they were collectedand selected. Within thatlattercontextthey may
and shouldbe considered.Itdependson thedesignof thecodification what valuemay be
attached to thiscontext.Justinianwas veryexplicitabout his Code: all constitutions
collected in theGregorian,Hermogenian and Theodosian Codes, and all constitutions
issuedafterA.D. 438 (thePost-TheodosianNovels), shouldbe collected inone code, but
not simplyas they were found.They had tobe examined;what was superfluousshouldbe
removed,as shouldwhateverwas similaror contradictory or had become obsolete, and
likewisefortheintroductions to theNovels. Texts could be combinedand shortened. The
constitutions shouldbe put underan appropriatetitleand thereshouldbe no doubt about
theirgeneralvalidity.5It followsfromthisthatthetextsof Justinian's Code presentin the
firstplace rulesof generalvalidityand that in any case within a titleruleson the same
subject(indicatedby thetitle'srubric)have been gatheredtogether. This isnot to say that
sucha titlecontainsall theruleson thatsubject,because itcontainsthemonly in so faras
therehad been constitutionsissuedabout it.Many textsreferto an actual case. It could
happen thatwhen a case was put before theemperorto decide, he, or laterjurists,dis
cernedin thedecision theapplicationof a newgeneralruleor theadjustmentof an existing
one. In thatcase a constitution(an edictor edictal letter)to thispurportwas issued,or the
text(e.g., a rescript)was interpreted in thisway. In view of thenatureofRoman legisla
tion,we may expect thatproblemswere dealtwith ina generalway when theyarose and
requireda general remedy,thatperhaps somepotentialproblemswere includedtoo,but
not thattheadministration triedina perfectionist
way to thinkup all theoretical problems
inadvance and dealwith themin a generalway in theconstitution. Such approachesdate
fromthedays of theNatural Law scholars.But it ispossible,and in theprivatelaw indeed
veryoften thecase, thatother rulesare contained in thewritingsof jurists,in thiscase
collectedinJustinian's Digest. Furthermore, Justinian'sInstitutesalso gained theforceof
law.Thus to findthelaw on a specificsubjectas valid in theyearsA.D. 530-534, one has
to checkall thesethree works, as Justinian himselfindicates(CJ I.I7.1.II, z.II).6
It is still possible that thereare some pointswhich were governedby customary,
unwritten or unrecordedlaw,but normallywe may in thisway expect to findall thelaw
as itwas valid at that moment and only then- no obsolete rules. That was Justinian's
intentionand thatwas indeedaccomplished.Of course, thismust be accompaniedby a
knowledgeof the intellectualstructure
of the law (thedogmaticsof law) as prevalentat
that time- after all, Justinian's entire codification had to serve legal education - or else
words and conceptsmightbemisunderstood.Only thendoes one get a pictureof the law
at thatparticularpointor period in time.
What theoriginalreason forissuinga constitu
tionwas no longer mattered in thecodificationprocess: thetextsdo not presentunrelated
fragments of previouslyissuedconstitutionsbut have become (if theywere not already)
pieces of a system.That picturecan and shouldof course be put into thecontextof the
societyand cultureof themoment.7

5 c.
Haec 2; c. Cordi 3.
6
For an example of this method see Sirks, op. cit. (n. 4), Nr. 34.
7
The texts in codifications can also be treated as historical sources and used as theywere issued in their own time,
conveniently collected in chronological order in the codifications. Within that context it is sensible to try to join
fragments of the same original constitution. Thus it is quite usual to see a treatise on the colonate start with the
earliest known text on this, CTh 5.17.1, to be followed by others in chronological order. One has to realize,
however, that they were originally only issued or interpreted as general rules for legal use and for that reason later
on selected and collected in the codifications or other collections. Consequently one has to be aware of the context
within which these texts are transmitted and 'deduct' the potential layers and changes of the codification
process(es). With Theodosius' Code the debate is still on-going, whether the texts preserved include obsoleteones
or not; see Sirks, op. cit. (n. 4), Nr. 44 ff. for a survey.
122 A. J. B. SIRKS

I shall followthisapproach in theensuingresearchintotheagricolaecensitivel coloni,

partingfromthe textsin thecentraltitleon theseand connectingthesewhereverappro
priatewith textsfromotherparts of theCode, and by this I hope to presenta concise
surveyof thecolonate as a legal institution underJustinian.I shall restrict
myselfto texts
relevantfor thepresentargument,8 using theword 'colonate' forwhat in the sources is
called thecondicioadscripticia(theadscripticiate with theadscripticii)and thecondicioof
thecoloni liberi (the 'free'colonate). I use theword colonus in itsoriginalmeaning of
cultor,cultivatoror farmer.Itwill depend on thecontextwhether this farmer was the
owner of his plot of land, a tenantor a farmlabourer;also itdepends on thecontext
whetherhewas subjectedto a particular(public law) condicioor not.
Regarding thecolonate, I brieflysummarizethepresentdiscussion,without intendingto
enterhere extensivelyinto thedebate on thecolonate as institution.In thecourse of the
fourthcentury we see constitutionsissuedwith thepurpose of tyingagricultural workers
(coloni) to the land inorder to facilitatethe raisingof land and poll tax. Some authors
assume thishappened in thecourseof a reformof the taxationsystemunderDiocletian.
The statusof theseworkers graduallydeclined and underJustiniana categoryof coloni
(theadscripticii)is even compared to slaves.Although itmust have been considerable,
there is no information about theiractual number.There is certainlyevidenceof free
labouralso in thistime.The discussionon thecoloni has been dominatedby twoviews.
One sees thecolonate,within thecontextof agriculturalexploitation,as thesuccessorto
thetenancyof theLate Republic (whencolonuswas used fora tenant)and as theprecursor
of thetiedserfof theMiddle Ages. In thisview itproves the Marxist's theoryof a transi
tionfromslave societyto feudalsociety.In theotherview thecolonate isbut one illustra
tionof thedeclineof theRoman Empireby itssocial petrification and bureaucracy.Some
authorsalso discern in thecontextof thistheemergenceof thegreatdomains as semi
public institutions.9

II THE PLACE OF THE TITLES ON THE COLONI WITHIN BOOK II

The titleson thesecoloni are placed in the iith book of Justinian'sCode (CJ),which in
general deals with public law. Placed after titles on groups of persons obliged to perform
certainservicesof public interest(CJ ii.z-I8), titleson theorganizationof thethreemain
citiesof theEmpire (CJ ii.i9-z8), and titleson theorganizationof towns(CJ II.29-47),
CJ II.48-53 are about agricolaecensitivel coloni, thecapitatio,coloni censitiand coloni

8
I have dealt with the colonate in, particularly, A. J. B. Sirks, 'Reconsidering the Roman colonate', ZSS-rA no
(1993), 331-69, but it appears from C. Grey, 'Contextualizing colonatus: the origo of the Late Roman Empire', JRS
97 (2007), 155-75, a stimulating contribution, that it is necessary to deal with the question in a methodologically
different way; where necessary I shall re-examine my position. More research will have to be done on, for example,
the autopragia and the estate management. There were also coloni on the imperial estates, but from the rules on
them (in CJ 11.63-4 anQl 68-9) itwould appear that their situation was basically identical.
9
A summary of the status quaestionis with B. Ward-Perkins in Cambridge Ancient History (CAH), Vol. XIV
(2000), 343-4. P. Heather in ibid., 465, refers to them as formerly free tenants who did not own the land they
worked, but also points out the rise of the landlord class. For more detail on the colonate, also referring to the
continued existence of free labour, see C. Whittaker and P. Garnsey inCambridge Ancient History (CAH), Vol. XIII
(1998), 287-94. Some of the many works on this question: A. H. M. Jones, 'The Roman colonate', in A. H. M.
Jones, The Roman Economy, ed. P. A. Brunt (1974), 293-307; A. Marcone, 'II lavoro nelle campagne', in Storia di
Roma, Vol. 3.1 (1993), 823-43; G. Giliberti, 'II colonato tardo-antico', in Storia d?lia societ? italiana, Vol. 4,
Restaurazione e destrutturazione nella tarda antichit? (1998), 24-30; A. Demandt, Die Sp?tantike (2007), 398-401.
Against the concept as such and other aspects sound arguments have been raised since 1981 by Carri?: see J.-M.
Carri?, '"Colonato del Basso Impero": la resistenza del mito', in E. Lo Cascio (ed.), Terre, proprietari e contadini
delVimpero romano (1997), 75-150 (resuming his thesis with responses to criticism); by Sirks, op. cit. (n. 8), 358?61;
and other authors (see CAH as cited above); further scepticism with P. Sarris, Economy and Society in the Age of
Justinian (2006), 150-4, and n. 85 regarding the idea of the great domains as semi-public institutions. See for further
literature Sirks, op. cit. (n. 8), 331 n. 1 and the Bibliography in Lo Cascio, op. cit.
 THE COLONATE IN JUSTINIAN'S REIGN I23

of particularprovinces.After thatfollowCJ II.54-57 on rusticaniand theirvillages,CJ

ii.58-9 on correctionof thetaxationrateand distribution of desertedlands (peraequatio,
impositioagrorumdesertorum), CJ ii.6o-i on border-and pasture-lands, CJ ii.6z-5 on
patrimonialand other lands,Cf ii.66 on landsof theresprivata,Cf ii.67-8 on landsof
theresdominica,and Cf ii.69 on landsof thetreasury.In theselastfourtitlesthereisalso
mentionof coloni on theselands.'0Book ii finishes with some titleson theleaseof public
and imperiallands (CJ II.70-4) and some titleson particularsubjects(CJ II.75-8).
This surveyalreadymakes clear that,notwithstandingthat theremay have been a
connectionwith taxes,fortheJustinianic compilersthemain featureof thecolonatewas
servicesto be rendered, within thecontextof agriculturalexploitation.If thecompilers
had considereda connection with taxesas themain characteristic, they would presumably
have placed thosetitlesinBook iO,where inCf IO.I-30 thetaxesare dealtwith.
Regarding theagricolae censiti - the rubricimpliesthat thereare normal agricolae
(farmers)as well and thatwe are dealingherewith a particulargroupof farmers, called
coloni,who have been censused - thesequenceof thetitlesis systematic.It starts with a
general title(CJ II.48), thenCJ II.49 with a singleconstitutionon theabolitionof the
capitatiohumana fortheurbanplebs in theEast, Cf II.50 with thesubjectof litigationby
coloni censitiagainst their masters (thisis theconsequenceof therulesas collected inCf
II.48), and finallythreetitleseachwith a singleconstitution, on thecoloni inPalestine,
Thrace, and Illyricum(whichconcern the agricolae censitiof certainprovinces).The
placementof CJ II.49 in themiddle of theconstitutions on coloni is a sign thatthistax
was relevantto thegroup of agricolae censiti,a connectionconfirmed byCJ II.48.I0 in
which the ratesof thecapitatio humana are rendered.Though the rubricof Cf II.48
speaks of agricolae censitivel coloni,we meet in its textsvarious designationsbesides
colonus: coloni originales (c. 4), rustici(c. 5), adscripticii(coloni) (c. 6, 2I, 22, 23, 24),
originarii(c. 7, ii, i6), tributarii(c. iz), adscripticiaecondicionis(c. ZZ, z3, 24), censibus
adscripti(c. i8 andCJ ii.5o.z), colonariaecondicionis(c. z3), and theGreek ?vaur'Ypwpo;
(c. ig).11Therewere also coloni censitiwho were considered'free'and different fromthe
coloni adscripticii(c. I9). We shall use, in accordancewith the title'srubric,the term
colonus forbothkindsof coloni censiti.
Apart fromthesetitles,thereare a numberofothertextsintheCode orNovels inwhich
colonior adscripticii(?vcutypawpoi) arementioned.'2In somecases thisconcernscoloni in
thesenseof independenttenants.They figureinCf 4.44.65 and otherplaces and ifand in
as faras coloniadscripticiior liberiwere tenants,thosetextsalso apply to these.13 In some

10
I leave these coloni out here: it is likely that their position did not substantially differ from the two (other) kinds
of coloni.
11
But this text (see below, n. 40) is a restitution from the Basilica and the word may be a later hellenism, or the
antecessor used in his Greek summary or translation of the current Greek equivalent, in both of which cases the
original text most likely had adscripticius.
12
Apart from CJ 11.48-69: colonus and colonarius in CJ 1.2.14, 1.3.36, 1.4.24, 1.12.6.9, 2.7.22, 2.7.24, 3.26.7,
3.26.8, 3.26.11, 3.38.11, 4.10.3, 4.10.11, 4.21.19, 4.26.13, 4.65.5, 4.65.9, 4.65.27, 4.65.35, 5.34.13, 5.62.8, 6.4.2, 7.30.1,
7.32.5, 7.32.12, 7.38.1, 7.38.2, 8.5.1, 8.15.8, 8.51.3, 9.24.1.5, 9.2.7-4? 9-2-7-5? 9-49-7-1? 10.7.1.3, 11.8.7, 11.26.1, 11.75.1,
12.10.2,12.19.12,12.21.8,12.33.3; adscripticius in CJ 1.3.20,1.3.36,1.4.24,1.12.6.9, 2.4.43, 3.38.11, 7.24.1.1, 8.51.1,
8.51.3, 12.19.12, 12.54.3; Kotaovo? inNov. 12-3.35, 162.2 pr, 3, 4, 5, 162.2.1; ?vaTCOypaipo? inNov. 22.17 Pr? 54
pr-i, 123.4, 12-3.17.1, 12.3.35, 12-8.14.3, 156.1, 162.2-3.
13
CJ 4.10.3,11; 4.21.19 pr.; 4.65.5, 9, 27, 35 pr (here the conductores have taken it upon themselves to find farmers
to till the rented lands as subtenants, which may therefore concern free tenants, but perhaps also coloni adscripticii
or liberi); CJ 5.62.8 (where coloni is explained by the interpolation 'id est conductores'; otherwise confusion might
be created with CJ 5.34.13 where the coloni patrimoniales enjoy immunity from the guardianship); CJ 7.30.1 (where
colono vel may be interpolated); CJ 9.24.1.5 (assistance with counterfeiting); CJ 11.58.3 (the owner resists a fiscal
re-evaluation of his lands by retracting his procurator or by dismissing his colonus: itwould not help to dismiss an
adscripticius, so itmust concern a tenant; further, if it concerned tied farmers, the text would rather have read
colonos); CJ 11.61.3.1 (which concerns tenants (conductores) of provincial and res privata meadows, since meadows
are not cultivated); CJ 11.62.5 (which concerns a reassignment of lands, deserted by previous coloni or
emphyteuticarii).
 124 A. J. B. SIRKS

cases theadscripticiatehas been interpolated, which shows how textswere adapted for
contemporary use.14Furthermore we meet tapotKot,meaning accordingtoZepos coloni,
tiedto land;but it ispossible thatwe are dealingherewith inquilinior casarii (who could
also be tiedto an estate).15

III THE TEXTS ON THE COLONATE

Within C II.48 fourtextsdate fromtheyearsA.D. 529-534, all issuedby Justinian:Cj

II.48.20-4. Consequentlywe may assume thattheyare coherentand accuratelyrepresent
thesituationof A.D. 534 incontemporaryidiom.They deal with thefollowingquestions:
when can theowner of an estate (dominus terrae)claim somebodyas his colonus or
adscripticius? And connectedto this:when is somebodyconsidereda colonus or adscript
icius?What can an estateowner claim fromhis colonus or adscripticius? Does thestatus
of colonusor adscripticiuspass on tooffspring? And thereare collateralproblemsimagin
able. Ifcoloni are attachedto an estate,what iftheestate isdivided?Ifsomebodyhas two
estates,may he transfer coloni fromone to theother? What ifa colonus runsaway and
enterstheadscripticiate with anotherestateowner,orworks as an independenttenantor
day-labourer? Or runsto a town,or seeks immunity in theimperialservicesor theChurch?
What about thepaymentof thetax incase of flight? What ifa colonusor colona (wehave
to thinkof thedaughterof a colonus)marries thecolona or colonusof another?Can coloni
litigateagainst theirestateowners?
I take thesefourtextsas thepointof departure,butwill refertoother textsof theCode
and Justinian'sNovels where appropriate in order to consolidate theexamination,and
thendealwith theremainingtextson coloni.The other textsinCJ II.48 relatingtocoloni
were all issuedbeforeJustinian. Theoreticallyit ispossible thattheiroriginalmeaning and
settingdifferedfromtheirmeaning and settingin Justinian'stimes.Because Justinian
orderedhis compilersto leaveout theobsoleteand allowed themtochangeand interpolate
thetexts, we may, as faras theirapplication inA.D. 534 iSconcerned,leaveanypotentially
different originalmeaning aside and interpretthemin accordancewith what we know
fromCf II.48.20-4 and otherJustinianictexts.

IV THE CONDICIO ADSCRIPTICIA AND THE ORIGO

An estate owner could claim somebodywas his colonus adscripticius,scil. with the
intentionthatthispersonwould renderhim services(seebelow,Section ix), ifhe provided
proofof thelatter'sstatus,namelyby at least twodocuments.This could be, forexample
a conductioor conductionaleinstrumentum (a labourcontract)16
and a copyof thepublici

14
e.g., CJ 7.30.1.
15 120. See P. J. Zepos,
CJ 1.2.24, Nov. 7 pr., Nov. 'Servi e paroeci nel diritto bizantino e postbizantino', RAL 35
(1980), 421, 424; Zepos (427) assumes the rcapoiKOl absorbed later on the coloni and adscripticii. But of such a third
category of farmers nothing is known in any other way, and also inquilini had an obligation to remain on the land.
CJ 9.49.7.1 has casarii next to coloni. I therefore doubt Sards' interpretation of Apphous as 'adscripticius avant la
lettre' (Sarris, op. cit. (n. 9), 151-2).
16
Conductio may refer to a lease, inwhich case the landlord is the locator and the tenant is the conductor, or to
a contract inwhich somebody (the conductor) hires another person (the locator). Although the firstmeaning ismore
?
common, cf., e.g., CJ 4.65.9, in this case in view of the duties of the adscripticii, namely to cultivate fields? it
is not the right one. If they were tenants their duties would have been circumscribed differently, e.g. to do what
tenants have to do; and CJ n.48.19 speaks of uio"0a>xoi, hirelings (see n. 40). Until now we possess only one tenancy
contract by an adscripticius (P.Oxy. LXVII.4615 (a.d. 505)), but he probably was already adscripticius by birth
through his origo.
 THE COLONATE IN JUSTINIAN S REIGN I25

censusadscriptio,theenrolmentinto thepublic tax registerof the land,17evidentlythe

enrolmentof himselfor his fatheror further ascendant,or a documenttowhich a later,
voluntarily-made acknowledgement of his statusby thecolonuswas added (as in thecase
of an adscripticiusby birth); justa contract,forexample,was not enough."8The census
will have been theestateowner's census,scil. thatof theestate towhich theadscripticius
was said to be attached,cf.CfJJ.7*7.19 How preciselytheadscripticius was registeredwe
do not know; perhaps itwas done aftertheexampleof theslaves on an estate,under a
special titulus,since thecoloni arementionedafterthesein theexpositionof thecensus
declaration(Dig. 50.I4.4.5 and 8) and theirflightfromtheestate iscomparedto theflight
of slaves (CJ II.48.23 pr.; see also below,Sectionx).20These requirements shouldprevent
freepersons frombeinggroundlessly drawn into theadscripticiate(CJ II.48.22 pr.-z). If
during such a claim procedure a settlement was reached, it could not be annulled (CJ
2.4.43). The referenceto a contractimpliesthatbyJustinian'stimethestatusof adscript
iciuswas not derived fromone's fatherin everycase, but that it could stillhave been
enteredex novo. It also impliesthattheadscripticiate was not the logicalconsequenceof
a mere labouror othercontract.The originof all cases of theadscripticiate21 (and thus
oftenof the 'free'colonate, see below,Sectionv) must consequentlyhave been a separate
agreement whose conditionscould not be changed lateron (CJ II.48.z3.3). There isone
papyruswith referenceto suchan agreement(itat leastsuggestsit; see n. I7).
Childrenof coloni scil.adscripticiicould be claimedaswell. Iftheyraisedtheexception
of limitationof thirtyor fortyyears against the claim, itwould be of no avail (CJ
II.48.zZ.3-5). This general limitationof prescriptionapplied both inprivateand public
law (e.g.,CJ 7.39.4I), with theexceptioninpublic law regardingthesummonsof people
forpublicdutieson basis of theirbirthstatus.22 As forthechildrenof an adscripticius,the
basis of thesummonswas not a contract,but theirorigo (on thebasis of theirbirth;see
below). Theymighthave been away fromtheestate fora long timeand could have pur
suedoccupationsother thanfarming, as CJ II.48.22.3 says.Their obligationswould have
been thoseconnectedto thecondicioadscripticia(or,as it is said in thepapyri,the-n5X'9
&vacutypawpi; seeSection Ix).We see indeedin thepapyriadscripticii with variousoccupa
tions;when theyare named ?vaioypcupoiycopyo, itmerelydenotes theirstatus,while
7rop670;does not necessarilymean theyare farmers.23 Likewisewe see that theyown
assetswhich theypledge.24

17
Of the land: since the references are always to being tied to a piece of land, itmust have been the registration of
the land, which had to be done in the town in whose territory the land lay. It therefore cannot have been the tax
registration of an individual. In P.Oxy. XXVII.2479 (6th century), Pieous asks to be accepted again, with his
children. Such an enrolment would not have had the same personal law consequences as the census had under the
Republic.
18
Carri?, op. cit. (n. 9), 946 sees in P.Ross.Georg. III.8 (4th century) such a document. The reading of the text is,
however, very difficult, see P. van Minnen, 'Patronage in fourth-century Egypt. A note on P.Ross.Georg. III.8', JJP
27 (1997), 67?73, and conclusions are actually not possible.
19
This text deals with fledmetallarii, state miners, whose condicio was similar to that of the adscripticii and who
were harboured by private persons who enrolled them on their census.
20
See Sirks, op. cit. (n. 8), 348-51, 366.
21
CJ 11.26.1 imposes the colonate (colonatus perpetuus) on able-bodied beggars of Constantinople; we assume it
concerned the 'free' colonate since that condicio was also imposed in other cases, but this should be further
examined.
22
Rejected, e.g., in CJ 7.39.5 for curi?is and their children when summoned for municipal duties. The other
exceptions are unimportant here.
23
It is therefore correct that in the latest editions of the P.Oxy. the designation ?va7toypa(po? ismoved from the
general list of words; it should be under statuses or liturgies.
24 ?
Apart from the mention in legal texts of their peculium and the prohibition on selling without consent for
? a striking example of this is P.Oxy. LXX.4794,
which see Section xn where Ieremias, former headman and
?va7toypa(po? ye pyo?, gives surety and pledges all his belongings present and for the future, in particular and in
general, by way of security and by right of mortgage. Another text inwhich adscripticii pledge for the contract of
tax collection: P.Oxy. LXII.4350 (a.D. 576). For this see below, Section xn.
iz6 A. J. B. SIRKS

This birthstatus,theorigo,derivedfromthetimethattheMediterraneanworld was a

patchworkof independent and autonomouscities,which could summontheircitizensfor
public tasks.According to rulesof internationalprivate law (iusgentium),itdetermined
one's home town (patria)and consequentlyone's public and private law system.Itwas
retainedin theRoman Empire, not so much forcitizenshipas such (almosteverybody
beingafterA.D. ziz also a Roman citizen),but forthepublic tasksnow calledmunera and
honores.The origopassed on in thesameway as ithad done previously:in legitimate mar
riages fromfatheronto his children(CJ 8.47.7), otherwisefrommother onto her child
ren.25Likewise freedmentook their manumitter'sorigo (cf.CJ 7.I4.I).26 A wife kepther
own origo or else theapplicationof theSC Claudianum (see below) would have been
unnecessary.27
The situationis,however,more complicated.The origowas establishedon thebasis of
one's descent.Theoreticallyeverycitizenof a towncould be summonedforall publicobli
gationsconnectedwith theorigo,but inpractice thiswas not thecase. For example,with
decurionsonly thosewho had a decurionas fatheror sometimesgrandfather were eligible,
and inaddition theyhad todisposeof a certainamountofwealth inorder toperformtheir
duties.Only ifnot enough new candidateswere found in thisway were hominesnovi
chosen (whoseexistimatio,reputation, had to be good also). This eligibility
might further
entailrestrictions as regards,forexample,otherfunctions.It is thisensembleof origo, lia
dutiesand restrictions
bility,eligibility, which definedthecondiciocurialis.28Itmight seem
as if thecondiciowas 'inherited'but that is not thecase. Birthwas thecriterionfor the
origo and theorigowas one of thecriteriaforthe impositionof thecondicio (in thiscase
by thehome town). Itwas an importantcriterionsince itdefinedthe townwhichmight
claim and as such itwas fundamentalto thesystem,but itdid not have to be theonly
criterion.Condicio may point to the liabilityas such,but also to thestatus in itstotality.
It is the samewith thecondicio adscripticia.Here also thedescentdefinedtheorigo,
which again is theessentialcriterionforimpositionof thecondicio.Furtherrequirements
were apparentlynot set,but duties and restrictions were present.29 Yet was theorigo a
town?In view of itbeing thedominus terraesummoningtheadscripticius,and inview of
thefact,aswe saw above, thattheadscripticiate was tobe provedby theadscriptiocensus
publici, thecolonus' origomust have been theestate inquestion,namely the terraof the
dominus terrae.This means thatin thesecases the townas origo had been substitutedby

25
M. Kaser, Das r?mische Privatrecht, I. Teil (1975), 279. After A.D. 212 Rome became communis patria, which
implies that itwas the patria next to one's own patria. But a change in domicile could imply additional eligibility
for mu?era of one's residence, cf. Dig. 50.1.20. See on this further A. J. B. Sirks, 'Did the Late Roman government
try to tie people to their status or profession?', Tyche 8 (1993), 165?6, where the significance of the origo for public
duties is set out, next to other criteria important in this respect, and idem, op. cit. (n. 8), 347, where the link ismade
as well. Also A. J. B. Sirks, 'Der Zweck des Senatus Consultum Claudianum von 52 n.Chr.', ZSS Rom. Abt. 122
(2005), 138, where it is set out how this senatusconsultum effected a deviation from the international private law
rule on status as regarded unions between free women and slaves. The inequity Gai. 1.84 refers to in this context is
the case that the owner of the slave agrees not to enslave the woman, but that in that case, due to the
senatusconsultum, she will bear slaves. Hadrian corrected this: in such a case she would bear free children.
Unfortunately, this has not been taken into account by Grey, op. cit. (n. 8), 156 and 170-1. Ch. Saumagne, 'Du r?le
de Y origo et du "census" dans la formation du colonat', Byzantion 12 (1937), 506 sees the land as the dominus and
the colonus as its servus. Legally this is nonsense, as is Saumagne's assertion that the land is the subject of a right to
the colonus. D. Vera, 'Schiavit? rurale e colonato nell'Italia imp?riale', Scienze dell Antichit? 6-7 (1992?1993), 317
states that the colonus was not tied to the estate owner, but to the taxation, and that the origo was a fiscal category.
But he does not specify what such a tie to the taxation meant.
26
This explains the application of the colonate in Illyricum (CJ 53.1.3) to freedmen of coloni.
27
See below for the SC. Further CJ 10.32.36, where the request to be transferred to the maternal origo is rejected,
which implies that the mother of the applicant kept it; CJ 10.32.11. In Sirks, op. cit. (n. 8), 367 itwas mistakenly
assumed that a wife took the origo of her husband: she took his domicile.
28
See on this in general Sirks, op. cit. (n. 25, 1993).
29
Perhaps the objections mentioned in CJ 11.48.22.3 were actual objections that for lack of experience in
agricultural labour the condicio should not be imposed on the children, but this argument did not play a role.
 THE COLONATE IN JUSTINIAN S REIGN I27

an estate (terra,possessio).Thus theestateownercould summona colonus toperformhis

duties in thesameway as a towncould summonitscitizensand curials toperformpublic
duties (e.g.,CJ IO.3z.z, 5);what duties theorigoof thecoloniadscripticiiand othercoloni
impliedwe shalldiscussbelow inSection ix.Moreover, theuse of thecensusas origomade
itpossible forthepersonof theestateowner tochange,e.g. by sale,with thecolonusbeing
obliged to thenew owner. If theadscripticiate was enteredbyagreement,itsformalization
by theadscriptioreleaseditfromtheconstraints of thelawofobligationswhichwould not
recognizea change ina contractualrelationship. Thus itcould be said thatthecoloniwere
alienable together with theestate (CJ II.48.2 pr., zi.i) and in thissense theyresembled
slaveswho were attachedas instrumentum to a plot of land.
A townas origomust be distinguishedfroma townas centrepointin the taxationsys
tem.On thebasis of thecensusdeclarationstheexpensesof thestatewere proportionally
apportionedtoprovinces,again to towns,and, in theend, to theindividuallandholdings,
and subsequentlyleviedaccordingly.30 If somebodyowned land inmore thanone town's
territory,hewould have to declare each estate in the townwhere it lay (Dig. 50.I5.4.2),
and pay thetax likewiseinmore thanone place; his origohad nothingtodo with this.31 It
is thereforewrong to assume thattheenrolmentina censusdeclarationof an estatemade
a colonus originariusresponsibleforthe taxes imposedon this land: theownerwas res
ponsibleand did not becomeoriginariusby this.32
Therewas nevertheless a difference:
an estatedid not equal a town,notwithstanding the
use of origo forboth.Normallywe would expect thatin thecase of amarriagebetweena
man, subjected to the adscripticiate,and a woman, not subjected to thisor another
condicio but citizenof a town, thechildrenwould follow theorigo of the father.(Such
unsubjectedpersonsare usuallycalled ingenui,i.e., freeof obligations;likewisein the law
of persons ingenui were not subjectedtoobligationsaswere libertiregardingtheir manu
missors.) But we know that theSC Claudianum was applied to theseunionswhen the
husbandwas an adscripticiusand thewoman was not.Originally thesenatusconsultum
made thechildrenbornout of a union betweena slave and a freewoman slave insteadof
theirbeing freeborn. By thisit reversedtheabove-mentionediusgentiumruleon thecivil
status.Here theapplicationmade childrenof such a marriage follow thestatusof their
fatherinsteadof thatof their motherand theybecame adscripticiiresp.adscripticiae(the
latterhave been attested).3This means thattheoriginesof fatherandmotherwere not

30
See on this J.-M. Carri?, 'Diocl?tien et la fiscalit?', Antiquit? Tardive 2 (1994), 33-64.
31
See Giliberti, op. cit. (n. 8), 31?2; Giliberti is incomplete when he states in his otherwise instructive survey that
Diocletian's reforms 'richiedava per tutti i contribuenti l'individuazione di una residenza fiscale obbligatoria e
definitiva (origo). Ogni individuo sottoposto a imposizione era registrato (adscriptus) nell'unit? amministrativa cui
lo legava la sua origo: citt?, villaggio, latifondo'. CJ 11.48.4.1 (= CTh n.i.14.1) proves precisely for the adscripticii
that one could have one's origo inA, but have to pay one's land tax in B. Grey has likewise not seen this point (see
n. 32). Further CTh n.3.5: if somebody acquires part of a property, he has at once to register his name in the
paginae censuales, seil, where the land lay. The acquisition is not restricted to one's own origo. If the taxes on the
sometimes widely spread possessions of a magnate were all levied in his origo, itwould have meant an unnecessary
complication of the system of distributing the taxable sum over the Empire and implied a complicated and
unattested system of administration.
32
Grey, op. cit. (n. 8), 171-2 states this, then mentions slaves who are originarii (but slaves never paid taxes or
performed muneral), then mentions registered coloni and finally connects these with the mu?era on the land as
taxpayers. Yet his argument is inconsistent. The owner of an estate did not become originarius of the estate by his
census declaration. A colonus, as any other person, was, with or without an estate, liable for the poll tax. But he
was not, unless he was the landowner himself, liable for, e.g., the munus viae sternendae as his estate owner could
be if the land was next to a road, or for the munus angariae. The obligations he was liable for were, on the other
hand, not mu?era of the estate as such: no owner of an estate was obliged to cultivate the land (but he would still
have to pay the land tax). The passage, on which Grey builds his view of origo, does not well support his
conclusions.
33
Adscripticiae in P.Wash.Univ. 1.25 (a.D. 530), P.Oxy. LXX.4797 (a.D. 593), 4801 (a.D. 617). They call themselves
?varcoypaipo? yec?pyo? (sic), which would imply this was a status and not an occupation.
iz8 A. J. B. SIRKS

consideredequal, i.e., theorigo of an adscripticius,theestate,was not equal to thatof a

town because the application of the senatusconsultumimplied thatwithout it the ius
gentiumwould have applied: thechildrenwould not have been subjectedto thestatusof
theirfather.That would mean a loss fortheestateowner, and thatmust therefore have
been thereason thattheSC Claudianumwas applied analogously.34Itwas forthissame
reason thatJustinian, when he abolished theSC Claudianum inA.D. 53I-534 (CJ7.24.I;
Nov. 22.I7), at once introducedthe rule thattheestateowner of theadscripticiuscould
forciblytakehis adscripticiusaway froma 'free' woman. Ifhe did nothing,he had himself
to blame for the loss ofmanpower (CJ II.48.24).35 In A.D. 539 Justinianchanged this
arrangement. Now childrenbornout of amarriagebetweenan adscripticiusand a woman
freefromthecolonatewould be 'free'coloni (see below, Sectionv), so that theywould
have to stayon theestateof theirfather. Otherwise theywould have been freeto leave.
Yet, ifsuch a son,now a 'free'colonus,acquired a piece of land largeenough forhim to
cultivateand not have timetowork elsewhere,he could go, live thereand have his origo
there(Nov. i6z.2).36For an adscripticiasuch a measurewas, of course,unnecessary.But
thenatureof theorigo posed no problemwith marriages between coloni37of different
estates:theywere so to speakon thesame leveland here thepaternalorigo and in thisway
thiscondiciowas decisivefortheoffspring(CJ II.48.I3 pr.).38
This application of theorigomeant that,as stated above, thedesignationcolonus
no longernecessarily
(adscripticius) meant thatthispersonwas a farmerandwe do indeed
finda varietyof occupations- steward,scribe,guard in the legal texts;functionsin the
imperialservice;in theChurch.39 His duties,however,could involvework on an estate,but
it isnot impossiblethatan adscripticius with fundscould have contractedsomebodyelse
toperformthisdutyforhim (cf.CJ I.3.I6).
The applicationof thesenatusconsultum Claudianummeant no change in thepersonal
law statusof theadscripticii,but remarkably enough themeasure takenafteritsabolition
inA.D. 53I/534did. It implieda potentialmarriage restriction,
whichwas remediedinA.D.
539 byJustinian's Novel (Nov. i6z.z). That Novel restoredthepersonal law statusof the
adscripticii.

34
In previous publications I was still uncertain about the role of the origo in this context and the function of the
application of the SC Claudianum, and only recently have I come to this interpretation. I have to withdraw any
previous explanation I may have made. J. L. Murga, 'Una extra?a aplicaci?n del senadoconsulto Claudiano en el
C?digo de Teodosio', Studi in onore di Cesare Sanfilippo, Vol. I (1982), 417-42, merely accepts the application
without explanation. It is furthermore an argument against the theoretical possibility that the estate owner exercised
his rights as representative of the town as origo and as such in a public or semi-public function.
35
The rule of CJ 11.48.24.1 was introduced everywhere in the Empire; also inAfrica as soon as itwas reconquered
in a.d. 534, but its introduction there caused a shortage of labourers. Therefore Justinus introduced in A.D. 570 for
Africa the same rule as had been introduced in Illyricum by Justinian, namely that children of an adscripticius and
an ingenua would be free, but be subjected to the 'free' colonate on the estate of their father, hence be coloni liberi
(Nov.Just. 6, confirmed later by Tiberius: Nov.Tib. 13 of A.D. 582). Apparently the possibility of thwarting a union
may not have been effective or, more probable, itwas considered an inappropriate curtailing of the personal status.
The abolition did not profit children born previously (Nov.Just. 54.1 of A.D. 537).
36
See M. Bianchini, 'Sul regime delle unione fra libere e adscripticii nella legislazione giustinianea', Studi in onore
di Cesare Sanfilippo, Vol. V (1984), 61-107. Bianchini does not enter deeply into the question how the adscripticiate
was precisely imposed and does not make the connection with the origo. Further W. Schmitz,
'Appendix 1 der
justinianischen Novellen-Eine Wende der Politik Justinians gegen?ber adscripticii und coloni?', Historia 35 (1986),
381-6.
37
And inquilini, by whom probably dwellers on estates are meant, who had to perform services as well: CJ
11.48.13 states that substantially there is no difference between coloni and inquilini.
38
There was no coniugium inaequale (Nov.Theod. 22.1.8) or coniugium non aequale (CTh 14.7.1).
39
P.Oxy. LXII.4350 (steward, scribe: contracting the collection of a tax); P.Oxy. XVI.1979 (guard); P.Oxy. VI.996
(steward). For the legal texts: see below, Section x.
 THE COLONATE IN JUSTINIAN S REIGN I29

V CHANGE OF STATUS AND THE FREE COLONATE

Although thereis no texton thesubject,release fromtheadscripticiate must have been

possible by a unilateralact of theestate owner, because ifan adscripticiuswanted to
become a priestormonk, his estateownerhad to approveof this (CJ I.3.36.pr.).Hence
thelatter'sconsentwas requiredand apparentlysufficient. But ifthisdid not happen,his
statemight be mitigated, be it only in the long term.CJ II.48.z3.I says that if an
adscripticiushas performedhis dutiesforthirty years,hewill be 'free'(themeaningof this
we will discussbelow), but cannotmigrate fromtheestate.CJ II.48.23.1 attributesthis
statuschange to a constitutionofAnastasius (A.D.49I-518), reproducedinCf II.48.ig.40
CJ II.48.I9 grantsthe 'free'colonate to thoseadscripticii who have servedthirty years,a
period which equals the limitationof prescriptionof thirtyyears.41Zepos and later
Mirkovic and Carrie interpretthis textdifferently: theyassume that free,unindebted
coloni who had spent thirtyyears on an estatewere made liberiadscripticii,viz. on
account of CJ II.48.I9.42Mirkovic uses theword adscripticiusforboth kinds of coloni
and shemeans thatsuchcoloni became 'free'coloni.The otherkindof coloni (forwhom
we reservedthenameof adscripticii)came intoexistenceeitherbecause theyfellintorental
arrearsor because they,as originarii, were born on theestateand had inherited debt and
dependence.43 In thisview all farmers
became coloni censitiof one or anotherkindand the
colonatewould have been a universalphenomenon.But objectionscan be raisedagainst
it. In Justinian'slaw thereisno questionof rentalarrearsas a cause of thecolonate.And
why did farmersnotmigrate after,forexample, twenty-five years to escape thisconse
quence? It isclear thatunderJustinianadscripticiateand tenancy were not twocommuta
tiveconcepts.To describeadscripticiias 'registeredtenants' is consequently wrong for
Justinian'sreign.44 CJ II.48.23.i does not speak of freetenantson an estate,but ofmen
'heldin thecondiciocoloniaria forthirty years' ('hominesqui per trigintaannos coloniaria
detentisuntcondicione'). SinceAnastasius and Justinian wanted to give thema better
condiciocoloniaria, itcould onlyconcerna transitionfromtheadscripticiateto the 'free'
colonate and so it isunderstoodin the text('sancimusliberoscolonorumesse quidem in
perpetuumsecundumpraefatamlegemliberoset nulla deteriorecondicionepraegravari').
The legalquestiondealtwith in thetextiswhethersuch a grantalso applied to children
who had not (yet)completed thirtyyears of service: theywould not have raised the

40
CJ ii.48.19: [A?xoKpaxcop Avaaxaaio? A.] T?>v ye py v oi u?v evarc?yacpoi eiaiv Kai x? xo?xoov 7i?KOUA.ia
xo?? ?ecnroxai? ?vf|K6i, oi ?? xp?vco xf|? xpiaKovxaexia? uicjG?oxo? y?vovxai ?XeuGepoi |i?vovxe? jiex? x?v
Tipayu?xcov auxcov Kai ouxoi ?? ?vayKa?ovxai Kai xfjv yf|v ye pye? Kai x? xea.o? rcap?xeiv. xo?xo ?? Kai x<p
?eaTioxn Kai xo?? ye pyo?? A.i)aiX?A.??. 'Of the farmers some are ?varcoypacpoi (= adscripticii) and the peculia of
these belong to the masters, others become by thirty years free labourers, although remaining with their assets; and
these are forced to till the land and provide the tax. This profits the master as well as the farmers.' (= Dig. 55.1.18).
41 10 it is put under the term of thirty years and it is said that they have
In the later Byzantine work Ai Vonai
performed their obligations and are no (longer) evarcoypacpoi.
42
Zepos, op. cit. (n. 15), 422; M. Mirkovic, The Later Roman Colonate (1997), 65, 69?70. The same error in
Whittaker and Garnsey, op. cit. (n. 8), 292.
43
Mirkovic, op. cit. (n. 42), 70. There is no reason for them to have inherited debts: they could have renounced
the inheritance, with debts and all.
44
As in, e.g., Grey, op. cit. (n. 8), passim, particularly 173, where he cites me in n. 104 for this characterization of
adscripticii as 'indebted, landless tenants'. Yet I expressed in Sirks, op. cit. (n. 8), 334-5, at n. 9, grave doubts about
adscripticii as being in general tenants and pleaded for an interpretation as hirelings, which he apparently did not
see. That Grey does not find debt mentioned in the sources is only possible ifhe interprets it as private law debts,
but that is precisely the point. The adscripticiate is always connected with the taxes and taxes are a debt the
adscripticii had to pay and which their estate owners guaranteed or took over. As to being landless, the fact that the
adscripticii were not prohibited from owning land does not necessarily imply that they regularly owned land. CJ
11.48.4.1 suggests that itwas an exception. Grey further, in thewake of this, states that there were not two different
condiciones, referring in n. 105 to a critique by Carri?, op. cit. (n. 9), 113, which apparently is convincing to him;
but see my comments in n. 45.
130 A. J. B. SIRKS

question ifithad notmeant betterconditions.This point isnot seenby theaforementioned

authors,nor byCarrie,who uses CJ I1.48.19 to interpretthetermcondicio coloniaria in
CJ I I 48.23 .I .45
Perhaps thereasonforthisbenefice was tomake flightlessattractive, because a fugitive
would permanentlyliveunder thethreatof being recalledas adscripticius, whereas now he
could be sure thatafterthirty yearshewould quit thecontroland authority(potestas)of
theestateowner,and his children would be freeof thisalso. Ifhis childrenwere away for
thirty years, theywould not benefitfroma limitationin itself,but iftheirfatherbecame
'free'in thisway theywould followhis new statusas well (CJ II.48.z3.I). We must be
realistic:notmanywill have profitedfromthisunless theywere enrolledor summonedat
an earlyage.Thirtyyearswas a long timeinantiquity.
Apart fromthissourceofwhat we shall call, in accordancewith the texts,the 'free'
colonate,which must have caused a distributionof 'free'coloni over thoseprovinces
where theadscripticiateexisted, therewere some provinces inwhich the 'free'colonate
had been imposedgenerallyon adscripticii:Palestine,Thrace, and Illyricum(CJ ii.5i, 52
and 53).46These threeconstitutionsfunctionedin theirJustinianiccontext as the legal
basis forrecallingthesecoloni, iftheyhad fled,fromtheirharbourersand definedthecon
ditionsof the 'free'colonate foreach region.Those who admit fugitives are, as seen inCJ
II.48, fined(CJ II.52.I.2, 53.1.z). Interestingis the fact that in Illyricumthe rules for
childrenof 'free'coloni also applied to theirfreedmen(CJ II.53.J.3).47Since adscripticii
were liable forthe taxeson theirown plots of land, theycould own land,and since they
could become 'free' coloni, there could have been 'free' coloni who owned land.
Consequentlywhen inA.D. 535 Justinianforbademoney-lendersto take the land from
theirfarmer-debtors,48 itcould concern independentfarmers, but also thesecoloni, now
with theirown land.49
'free',or adscripticii
A third source of the 'free' colonate was afterA.D. 539 themarriages between
adscripticiiand ingenuae, whichwe discussedabove, inSection iv.
Nothing is said about therequirementsfor theclaimingof a 'free'colonus.This was
possible (CJ II.48.23.5). Presumablyithappened in thesameway aswith adscripticii.

45
I cannot enter here into a complete discussion of Carri?, op. cit. (n. 9), but his approach suffers greatly from not
taking the entire legal dossier into account in a proper way. Thus he does not analyse CJ 11.48.22: not on p. 113,
nor on p. 99 (on p. 119 he neglects the contractual part of the adscripticiate and only mentions the adscriptio);
neither does he consider Dig. 50.15.4 for the census declaration as I did. It becomes understandable then that he
reproaches me for speaking of the census as a 'lista' and accuses me of taking over a misunderstood reading of CTh
11.1.26 by Goffart (p. 113), when I did not do this at all. Understandable too that he denies any contractual origin
of the adscripticiate and the difference with the 'free' colonate, adhering to the mentioned interpretation of CJ
11.48.19, which I consider absolutely incompatible with CJ 11.48.23.1, a text which neither he nor Mirkovic
analyses. He merely mentions this text on p. 122: but instead of accepting the meaning of (condicio) coloniaria as
adscripticia on the basis that the Latin text is in any case reliable, he attributes another meaning to coloniaria, on
the basis of the less reliable Greek text of CJ 11.48.19 (which is a Greek summary of the Latin constitution), which
saves his interpretation. Apart from that, this is a circular argument (the wrong interpretation of one text is proved
by applying it to another text); this seems to me a methodogically rather questionable approach. The legal content
of the text is not discussed at all. This is precisely the approach I think it necessary to avoid. I shall deal elsewhere
more extensively with Carrie's article.
46
See n. 51.
47
Normally freedmen had the origo of theirmanumissors (see above, Section iv) and on the basis of this rule theirs
would have been the estate of their manumissors. But could adscripticii have slaves and set them free? Not if these
would have been part of their peculium. It would be different, probably, if they had possessed land with slaves
attached to it.With 'free' coloni itwas different. They were not subjected to the peculium. Freedmen would take
the origo of their manumissor.
48
Which they must have bought at auctions through straw men, or bought themselves at a low prices, since the
lex commissoria prohibited creditors from becoming owners of the pledges in case of defaulting.
49
The Novels 32-34 (a.d. 535) forbid this and order the return of the seized lands in the provinces of Thrace,
Illyricum and Mysia secunda.
 THE COLONATE IN JUSTINIAN S REIGN I3I

VI SALE OF THE ESTATE AND REALLOCATION OF COLONI

Regarding the tie to theestate, itwas forbidden,ifan estatewas transferred,to separate

thecoloni attachedto itand tiethemtoanotherestate,even ifthebuyeragreed to this(Cj
II.48.2). Likewise coloni could not be alienated separatelyfromtheirestate.An evident
tricktocircumventthis,namelyby sellingonly a verysmallpart of theestatewhile trans
ferringwith itall coloni on theestate,was suppressedby theprescriptionthatincase of a
divisionof theestate, thecoloni should be distributedproportionallyover theparts (Cj
II.48.7 pr.-z). The trickpresumablyconsistedof registering at themomentof divisionall
thecoloni in thecensusof thesmallpart,whichwas thensold and transferred with them
attached to it. If itnevertheless
happened, theownerof theremainingestatenow devoid
of coloni could reclaimthem,while thenew possessor could not raise limitationof pre
scriptionagainsthim (CJ II.48.7.3). The questionariseswhethertheownerof twoestates,
each ofwhich had coloni attachedto it,could transfer somecoloni fromone estate to the
other if thishad a shortageof labour.This is indeedalso dealtwith in the texts.It is
allowed, but if the two estatespass intodifferent hands, theowner of theestate from
which coloni were taken could claim the offspringof the transferred coloni (CJ
II.48.13.I). This tallieswith theconceptbehindCJ II.48.2.I, which says thatwhoever
thinksthatcoloni are usefulon a parcelof land shouldkeep themthere,and it is inaccord
ancewith theprincipleof theorigo.

VII TAXES

The registration in thecensushad as consequence,or as condition,thattheestateowners

had to acknowledge,eitherby themselvesinperson or throughtheirstewards(procura
tores;whichwill oftenhave been thecase withmagnates), the liabilityfor the tax their
colonioriginales,once havingbeen censiti,had topay (CJ II.48.4 pr.).According toDig.
50.I4.4.8, theestateownerwould be liablefortheirtaxeseven ifhe had notdone so.50This
taxwas thecapitatiohumana, as followsfrom(a) thetariff forthisinCJ II.48.I0, (b) the
positioningofCJ II.49.I with theexemptionof theurbanplebs in theEast and someprov
incesinAsiaMinor in themiddle of thetitleson coloni, and (c)CJ II.52-3.51The papyri
also indicatethis(seebelow, Section IXat n. 65 and SectionXII aftern. 85). But ifsuch a

50
Itwould mean, vide CJ 11.48.4 pr., that he would be liable anyway and that he could not recover the tax from
them. The phrase must have been interpolated. P. Rosafio, 'Dalla locazione al colonato', Annali Dipartimento di
Studi del Mondo classice del Mediterr?neo antico 13 (1991), 264 thinks it concerns tenants and the tributum soli,
since it would be absurd to pay the capitatio for an unregistered colonus. Yet that is precisely the point: not
registered means that the estate owner profited from them, but that he would avoid the tax. It is a situation also
counteracted by CJ 11.48.8 pr.
51
The abolition of the capitatio humana in Thrace in A.D. 386 would release the coloni tributariae sortis of their
bonds. This must refer to the adscripticii, and itdemonstrates that the designation tributarii must also refer to these
coloni. It confirms that itwas the guarantee of their estate owners for the capitatio humana which made them
subjected to him and, parallel to the pledge of a creditor, which ends when the debt is paid or cancelled, their bond
must have ended as well (I think the parallel is fullywarranted in view of the language of the constitution: it assumed
without reserve that the abolition of the tax (a debt to the state) generally ends all cases of the adscripticiate,

regardless of the individual agreements). In order to prevent a massive migration, these coloni (it does not say that
it concerned all coloni of Thrace) are made into coloni liberi. They are retained originario iure, which shows that
this designation comprises the two kinds of coloni (CJ 11.52.1). The same was done in Illyricum in A.D. 371 (CJ
11.53.1, with reference to the tributarius nexus), and in Palestine, where the text underlines the faculty of the estate
owner to recall them (CJ 11.51.1). Although the text suggests that this colonate was introduced for all coloni, the
phrasing suggests that it concerned those adscripticii who were released: reference ismade to estate they once took
upon them to till and 'nullus omnino colonorum suo iure velut vagus ac liber exsultet': it cannot be that every farmer
rejoiced, but only those who were released. These three constitutions functioned in their Justinianic version as the
legal basis for recalling these coloni. Those who admit fugitives are, as we saw before in CJ 11.48, fined (CJ
11.52.1.2, 53.1.2). Since adscripticii were liable for the taxes on their own plots of land, they could own land.
132 A. J. B. SIRKS

colonus owned landhimself,ithad to be registeredinhis own name in thecensusand his

estateownerwas not liable forthepaymentof thetaxon thatland (the tributum, due by
theowner of land): thecolonus had to acknowledge thisdutyhimself(Cj II.48.4.I).52
Nov.Just. 128.14ofA.D. 545 repeatsthis,adding thatit isdifferentifhis estateownerhas
obligedhimself(as surety)forthatplot of landof his colonus.CJ II.48.4 pr.makes itclear
thattheestateowner's liabilityforthepoll taxof his adscripticius
was based on an accept
ance of thison his part (recepta),bywhich he would become theonly liabledebtor as
regardedthecollectors(but theadscripticiusremainedthepersonuponwhom thisliability
and itsamountwas based). Conversely,seeCJ I.3.i6, theadscripticius would have to ack
nowledge again thecapitatiowhen releasedfromtheadscripticiate.The consequenceof
thiswas (a) thattheadscripticiusdid not have toworryabout statetaxcollectors,but (b)
that if theestateowner had paid, theadscripticiusnow owed him thisamount and the
estate owner could recoverthis.53 This is confirmedby CJ II.48.zo.3a and by P.Oxy.
XXVII.z478 and LXIII.4398, where the vcvanoypcpot promise to renderthe tax to their
estateowner.
The fact that theestateowner functionedas guarantorfor the taxesof his registered
coloni explains thedispositionofCj II.48.8 pr., thatanyharbourerof fugitives who uses
themas iftheywere his own coloniwithout paying thema loan,must pay the taxesdue
by them:therationaleevidently was thatwhoever profitsfromthemalso must carrythe
burden.The question,of course, iswhether thefirstestateownerhad neverthelesstopay
the tax in case of flight.We have to infer that as soon as the coloni had fled, he had no
longertodo so. This makes sense.The poll taxwas leviedon persons: iftheywere gone,
there was no longera subjectto levythetax fromand bydefaultof theprimaryobligation
thatof thesurety would fallaway.54
It also followsfromCJ II.48.4 pr. thatcensitusrefersto theregistrationin thecensus,
thusthata colonus censitusis thesame as a colonus originaliswho has been enrolled. It
would be thesameprocedureaswith public obligationssuch as themunera,where liable
persons are summonedand thenhave to acknowledgetheirduties formally. As such the
word originalis(ororiginarius) may refer,inJustinian'stimes,toboth categoriesof coloni
(in thattheyare obligedon thegroundsof theirorigo,which oftenwill have been thecase)
but here theadscripticiiaremeant because theothercategoryof coloni had always topay
thetaxes themselves.Immunities, especiallygivenwith regardto thecapitatioand iugatio
(whichcould also profitcoloni),were unacceptable iftheyhad beenmade without proof
(i.e.,most likely,throughbribery;CJ II.48.9). Their tie to theestateensuredthecoloni at
leastof one advantage,namelythatthey were not liablefortheunpaid fiscaldebtsofother
people (CJ II.48.I5, repeatedinNov.Just. I08.I4 of A.D. 545).Normally thosewith the
same origowould be subjected to thissecondaryliability,inherentin the fiscalsystem.
They, however,had as theirorigo only theestate (CJ II.50.I). Their estateownerwas
liable forthisestateand fortheotheradscripticii(thisarguesagainst theideaof theestate
owner as public taxcollector;see below, Sectionxiii).

52
Grey, op. cit. (n. 8), 172 n. 94 reads this text as if the coloni (for him: tenants) became responsible for the estate's
taxes by their registration as originales. It is different: the registration as originales makes their estate owner liable
?
for the taxes of the coloni. But if the coloni possessed land themselves, they were responsible as owners, not as
tenants or land labourers ? for the taxes on that land regardless of their being originales. He cites me on p. 172 n.
98 for his assertion that 'registration though a landowner's tax declaration on a particular origo made tenants
visible in the municipal or imperial tax rolls, so that they could be held responsible for the mu?era of that land' but
see n. 32. It does not seem to me that tenants would become liable in this way (Sirks, op. cit. (n. 25, 1993), 165). The
text he cites in n. 98, CJ 11.48.11, does not say anything on this point.
53
See P.Oxy. XXVII.2479 (6th century) with Pieous, who laments that he could not pay his estate owner and that
the owner's procuratores came and seized all his goods.
54
See CJ 11.48.8 pr.-i as interpreted below, Section x, for both statements.
 THE COLONATE IN JUSTINIAN S REIGN I33

VIII EXPLOITATION OF ESTATE LAND, COLONI-TENANTS, OTHER TENANTS

AND FARM LABOURERS

If litigation
were initiatedabout the identity of theestateowner, thecoloni of theestate
shouldnot be able to use thisopportunityto escape theirduty to pay theirdues, and so
Justinianregulatedthis(CJ II.48.20 pr.-5). He did thisnot somuch out of concernover
what was due to theestateowner as over thepaymentof thetaxes (publicaefunctiones).
Regarding thefirst,iftherevenues(reditus)were paid ingold, thecoloni had toprovide
suretyfortherevenuesor else thegovernorwould claim theseand deposit thesumsat a
suitabledepository.If therevenueswere paid inkind, thegovernorwould sell themand
likewisedeposit theresultingsum forafterthetrial.
As to the taxes,Justinianagain distinguishedtwo situations.Either thecoloni used to
pay thesethemselves, or itwas custom thattheyturnedover a lumpsum (totasumma) to
theestateowner,who thentook thesumdue fortaxesout of thisand paid it to the tax
collector,while he kept the restas income (sui reditus).In the firstcase, even if the tax
shouldhave been paid throughtheestateowner, theexistingpracticeshouldcontinuetill
theend of the law suit. In theothercase, however,ifthecoloni had alreadyappointeda
suretyforwhat theyowed to theestateowner, thesame suretyalso had topay theowner
thesum (scil.when itwas time)due as tax,and thelatterhad to turnthisover to thetax
collector.If thecoloni did not give surety,theentirerevenues were setaside, or sold and
set aside, and thegovernorwould takeout the sum due as taxes and give theowner a
receiptforthis(CJ II.48.23.3-4).
What were thesetaxes?They are called publicae or tributariaefunctiones.55 Itwill in
any case have concernedthecapitatiobumana, thepoll tax,of thecoloni, since it is this
taxwhich is dealtwith inother texts. With adscripticiithiswas regularly paid by their
estateownersbut it remainedtheirtax (see above, SectionVII). The firstsituationmen
tionedabovewould thenconcern'free'coloni (ofwhom itis said thattheypay taxesthem
selves,i.e.,aswe seehere,in theirown person sincethey were registeredindependently for
We do not see any specialmentionof theland tax.Since thelitigation
this). was about the
questionofwhetherthepurportedestateownerwas indeedtherightful estateowner,who
was liable for the land tax, itmust also have been a question as towhether the land tax
would be paid. Thereforethetextmust have dealtwith thisas well. In thesecondabove
mentionedsituationitwas usual thatthecoloni, i.e.,adscripticii,turnedover a lumpsum
out of therevenuesof the land they worked on, inmoney or inkind.Although thiscould
concernshare-cropping, it isnot likelyaswe shall see (seebelow,SectionXII). Itcertainly
was not a regulartenancy. The formof exploitationthroughcoloni (ofbothkinds)Justin
ian dealtwith heremust apparentlyhave been one inwhich theestateownerput land in
thechargeof people forthepurposeof cultivationand expected inprinciplea lumpsum
tobe turnedover tohim, in thecase of adscripticiicomprisinginanycase of thetaxhe had
topay forthem.Itpresumablyalso includedtheamountof the land taxdue fortheplot,
but thisof coursedid notmake thefarmersresponsiblefortheland tax. Ifthisexploitation
mode concerned'free'coloni, thesepeoplewould certainlyhave likedtodeduct theirpoll
tax fromthe lumpsum. In thecase of adscripticiitheestateownerwould pay theirpoll
tax.We do not knowwhetherhe also leftthecoloni a part of therevenuesas recompense
but it ispossible. Itmay also be thathe creditedtheiraccounts inhis book-keeping.
Nothing is said inCJ II.48 about tenantsand agricultural workersnot tiedto an estate,
but thatisnotwhat thetitleisabout and thusnot tobe expected.They figureinCJ 4.44.65

55
A definitive answer to this question awaits a new treatment of taxes and taxation in Late Antiquity.
 134 A. J. B. SIRKS

Ifcoloniadscripticiior liberiwere tenants(weknow of one case,P.Oxy.

and other texts.56
LXVII.46I5), those textswould also apply to them,becausewe do not see inCJ II.48.20
thatforadscripticiiand 'free'coloni a particularregimeregardingthecontractof tenancy
(locatioconductio)existed.This constitutiononlyprovideda specialarrangementforthe
paymentof therentin a specialcase.

IX OBLIGATIONS IN THE ADSCRIPTICIATE

What were theobligationsof an adscripticius? He had to performtaskson theestate

(ruraliaobsequia, CJ I.3.i6), till the land,or performthework of a colonus, he had to
remainon theestate (CJ II.48.I5), he disposedof assetscalled peculium57and he, and his
children,stood under thepotestasof theestateowner (CJ II.48.-2.I); hewas prohibited
fromlitigating againsthis estateowner (CJ II.50.2.4, see below fortheexceptionto this
rule).Such a prohibitionindicatesa subordinatesocialposition as betweenfreedmanand
manumissor.58Ifan adscripticiusbecame a priestinhis own hamlet (vicus) (forwhich his
estateowner had to releasehim fromtheadscripticiate,see Section v), his estateowner
could requirethathe acknowledgedthe liabilityfor thecapitatio, releasingby thathis
estateowner fromthisobligation,and thathewould have his estatedutiesperformelby
a substituteof his own choice (CJ I.3.i6). A 'free'colonus had as his onlyobligation to
remainon theestateand tilltheland (CJ II.48.I5 and 23.1),whichmust have impliedthat
he had tocontinueto tillitas tenantor as farmlabourerand thathe had topay his taxes,
i.e. thecapitatiobumana.From thisitfollows,as stated,thatan adscripticiusdid not have
topay thistaxdirectly, which again impliesthathis estateownerdid so (seeabove,Section
vii). If thepersonwho harboured theadscripticiushad theuse of his labour, thisperson
was liable forthesetaxes.59
Some evidenceregardingtheduties is further providedby thepapyri. In a numberof
papyrimention ismade of evcur6ypctpoi ycwpyoi,i.e. coloni adscripticii.Fikhman has
thoroughly analysed them.60 These papyricover theperiod fromA.D. 44I (or, inany case,
469) tillA.D. 6i6,61thusroughlytheperiod coveredbyJustinian'scodificationand legisla
tion.Fikhman indeedmakes comparisonswith lawsof Justinian'sreign.He observes that
v?vanr6pU(pos is foundnot onlywith farmers(y0cop76q), but alsowith otherprofessionsor

56
Some texts: CJ 4.10.3, 11; 4.21.19 pr.; 4.65.5, 9, 27, 35 pr (here the conductores have taken it upon them to find
farmers to till the rented lands, which may concern free tenants, but perhaps also or just coloni adscripticii or liberi);
CJ 5.62.8 (where coloni is explained by the interpolation 'id est conductores'; otherwise confusion might be created
with CJ 5.34.13 where the coloni patrimoniales enjoy immunity from the guardianship); CJ 7.30.1 (where 'colono
vel' may be interpolated); CJ 9.24.1.5 (assistance with counterfeiting); CJ 11.58.3 (the owner resists a fiscal
re-evaluation of his lands by retracting his procurator or by dismissing his colonus: itwould not help to dismiss an
adscripticius, so itmust concern a tenant; further, if it concerned tied farmers, the text would more likely have read
colonos); CJ 11.61.3.1 (it concerns tenants (conductores) of provincial and rei privatae meadows, since meadows are
not cultivated); CJ 11.62.5 (it concerns a reassignment of lands, deserted by previous coloni or emphyteuticarii:
because coloni adscripticii and liberi may have owned lands, but not from the crown, itmust refer to free tenants
(conductores)).
57 for the adscripticii,
CJ 11.48.23.3: 'agros col?re, aliquid colonarii operis celebrare, agriculturam peragere'
'terrain col?re' for the 'free' coloni; adscripticii have peculium (CJ 11.48.23.5), 'free' coloni do not (CJ 11.48.19);
both groups have a duty to remain on the land and consequently can be recalled (CJ 11.48.22 and 23).
58
Who was restricted in his capacity to sue his enfranchiser: CJ 7.6.3. See further on this below, Section xn.
59
CJ 11.48.23.5: 'functiones sive terrenae sive animales'.
60 ?
I. F. Fikhman, 'Coloni adscripticii 8va7i?ypa(poi yecopyo? in den Papyri', in I. F. Fikhman, Wirtschaft und
Gesellschaft im sp?tantiken ?gypten. Kleine Schriften (2006), 190?250. This article was originally published in 1984
inRussian, but is now accessible inGerman in this volume. The article is not only important because of Fikhman's
observations, but also for the Russian articles he refers to and discusses, which enable the reader who is not capable
of reading Russian to form an opinion of Russian scholarship. Further Sarris, op. cit. (n. 8), 60-6; B. Palme, Form
und Funktion der byzantinischen Gestellungsb?rgschaften (forthcoming).
61
Fikhman, op. cit. (n. 60), 194-5.
 THE COLONATE IN JUSTINIAN S REIGN I35

occupations likeguard and gardener.62This tallieswith our observationthata colonus

might be tied throughhis origo and not be a farmer.A numberof papyri are about
guaranteesgiven fora fugitive vacouypa(poq,usually imprisoned;othersare receiptsfor
receivedparts forirrigation
machines.63The surety must guaranteethatthegvanoypa(po;
will answer for all thatpertains to his person or ratherhis status as &vwoypacuo;:
acrOKplVOgF1VOVgig aLavTa Ta optivTU TO a 2t pO[ojontov lTOttip TOV ?avoypapou
64 thatt as isremiasonfouin e
TUXlV,, that is, formulated extensively P.Oxy. L.I35, that he will remain continu
ously on the estate (ll6ajdi aclUTOVKaTakCJJWaLTO a6TO KT1fLa pts1jTrjV gEO[[E]]icvcTaOalt
gig;K-cpovTunov)with his childrenandwife,cattleand utensils,thathewill be answerable
forall thatpertainsto hispersonor his statusas 9vcu6ypc~po;,and thathewill not go to
anotherplace; oftenalso, thathe will pay the tax ((popop)on himself(itmust have been
thecapitatio;not a rent:why shoulda tenantfleeifhe could terminatethecontract within
a year?);65thatin thecase of a second flightthesuretywill deliverhim;or else thesurety
What pertains to his statusmust have been the
will pay a fineor will do his duties.66
serviceswhich his estateownercould requireinconnectionwith agriculture:toguard the
land (&ypo(ptXaR), to be fruitgroweron the estate orchard (cotcuapitr7, K1pLoUpo().67
Perhaps seasonal jobs such as harvesting were required,butwe do not know; thereare
otherpossibilities.In thepapyriconcerningthe irrigation machines it isusually said that
a certain irrigation work is 'in the charge' of the adscripticius.68In the same way
adscripticiicould have been chargedwith farming byputtinga plot of land in theircharge,
while in returnthey would have to rendersomeor all revenues(withwhich thetax forthe
land could be paid also); theymay also have been paid by credits in the estate book
keeping.69 Such transfersinto 'thechargeof' an adscripticiuswho thenhad to exploit it
would agreewithCJ II.48.20,which dealswith thedues of coloni.There isa group in this
textwhich turnsover all revenuesto theestateowner (seeabove, Sectionvii). Could itbe
in thecase of theirrigationworks thattheestateownerused theadscripticiateto charge

62
Fikhman, op. cit. (n. 60), 194: P.Lond. III.778 (aypoqr?taxC, guard), P.Oxy. XXVII.2478 (7t?)fiapixr|?, fruit
grower).
63 inXVII Congr. intern, di
J.-M. Carri?, 'Figures du "colonat" dans les papyrus d'Egypte: lexique, contextes',
Papirologia (1984), 945, observes this remarkable restriction. As I shall explain, this might not be so remarkable.
64
Fikhman, op. cit. (n. 60), 195.
65
In P.Oxy. LXIII.4398: ?lern Kai xo? (popiKO? (?ou (p?pot) (see Section xn), in P.Oxy. I.133 (a loan) ix?x? Kai xo?
(popiKO? fijLicov(p?poi) (translated by the editor as 'tax payable by us'), in P.Oxy. XXVII.2478 (a deed of surety) x?v
?7t?p a?xo? (p?pov (translated by the editor as 'the tax due on it', seil, the land). But this tax cannot concern the
plot of land in his charge; itmust refer to the poll tax and be translated as 'with payment of my tax'. J. Banaji,
Agrarian Change in Late Antiquity. Gold, Labour and Aristocratic Dominance (2001), 97 considers that in P.Oxy.
XXVII.2478 this refers to the rent. That does not make sense. Why should a tenant flee, when he could simply
terminate the lease? See CJ 4.65.34, but the constitution says that this could be excluded in the contract, and that
indeed happened, see J. Beaucamp, 'Byzantine Egypt and imperial law', in R. S. Bagnall (ed.), Egypt and the
Byzantine World 300?700 (2007), 283. As in other texts, the orchard must have been put in his charge. Banaji is right
? see CJ 11.48.20 ?
in interpreting ?r|nocjia in PSI 1.62 as taxes and not as rent, but itmay well be that Petrus was
towork so hard as to be able to produce, in any case, the volume of tax levied on the plot of land. In P.Oxy.
expected
LV.3804 (a.d. 566, an account of an estate), there is explicit mention of the poll tax being received (xo? KOiv(o?)
x v y?C?p(Y(X)v) urc?p ai)VT??,(eia?)-K8<p(aA/n?)) but this does not conflict with the above. The adscripticius may
have been obliged to promise in a general way to perform all payments he had to make, whereas the steward had to
make a precise account of what he collected.
66
Fikhman, op. cit. (n. 60), 202-6. In P.Oxy. XVI.1979 (a.d. 614) the surety, an ?vaTtoypaipo? himself, even
guarantees that he himself will perform all that is required from the still imprisoned ?va7toypacpo?. Apparently the
duties were in this case not so burdensome that he could not take somebody else's upon him.
67
Fikhman, op. cit. (n. 60), 194. See also Sarris, op. cit. (n. 9), 63-5 for the variety of labour and the flexibility of
the Apion management of labour.
68
P.Oxy. LXVIII.4697, LXIX.4755, LXX.4781, 4782, 4784, 4788, 4793, 4797 (adscripticia), 4698, 4799, 4801
(adscripticia).
69
See now for this system, D. Rathbone, Economic Rationalism and Rural Society in Third-Century AD Egypt:
the Heroninos Archive and the Appianus Estate (1991); for the system in the 6th century, see P.Oxy. LXX.4788,
4797, 4800; cf. also CJ 11.48.8.2 and Sirks, op. cit. (n. 8), 362-4.
136 A. J. B. SIRKS

capable individuals with themanagementof thisimportantagricultural machinery?Since

twomanagers arewomen, it isnot likelythattheywould do heavywork, but theycould
have been good managers.The advantage for theestateownerwould be thatthesesub
ordinatescould neverquit theirjob andwould thusbemore underhis control,as would
be theirassets, like the freedmen of theearlyPrincipate.Cj ii.68.z orders the recallof
imperialcoloniwho are fittomanage (ratiociniagerere)or to farm. Apparentlytherewas
concernto use thetalentsof coloni.
Itwas thehabitof theApiones to requiresureties Fikhman
with all kindsof contracts.70
is rightinobservingthatthesuretyreflectsthedutiesof theadscripticius,but thequestion
is:are thesethedutiesof an adscripticiuswho entereda contractand thecensus,or of one
who was of that status on thegrounds of his origo?Many suretieswe have are for
adscripticiiwho are inprisonbecause theyfled. We see thatin thesecases theenumerated
duties reflectthe legaldescriptionof thestatus: todo what pertainsto theirstatus,which
included work on thelandor toperformotheragriculturalservices(CJ II.48.2z.3: 'neque
agrumcoluit neque aliquid colonariioperis celebravit').Thus it seemsbetterto assume
thatthesuretyreflects thepreviousor simultaneousacknowledgement(confessio,compar
ablewith theagnoscere inadministrative law ofmunera) by theadscripticiusof his public
obligations.Furthermore,theobligation tokeep his goods on theestatefittedtheprohibi
tion against alienatingfromhis peculiumwithout theconsentof theestate owner (Cj
II.50.2.3; seeSectionXII).71At themomentof enteringtheadscripticiate,itmay have been
different.The agreementbetweenestateowner and prospectiveadscripticiusmust have
consistedof severalelements.For thefarmerthesewould have been toprovide labour,to
remainon theestatewith all and everything (whichresemblestheparamoneagreementor
clause),72topay thepoll tax to theestateowner- perhaps thesewere simplycomprised
in thephrase: thedutiesof an adscripticius.For theestateowner thesewould have been to
pay thepoll taxof thefarmer(and his family).Theremay have been special clauses,or it
may have been leftto custom (cf.CJ II.48.5, II.50.I).
Furthermore, CJ II.48.I does not allow therequirement of extraordinaryperformances
when thecoloni are harvestingifthatcould also be done at a more opportunemoment,
and CJ II.48.5 remindstheestate owners that theymay not demandmoney payments
fromthefarmers butmust acceptpaymentsinkind,unless thisis thecustomof theestate
(thiscould happen if a new owner took over). CJ II.50.1 prescribestheprocedureby
which colonimay contestincreasedclaims,as does CJ II.50.z.4 foradscripticii.

X FLIGHT

The obligationto remainon theestate,which layon everycolonuswho had acknowledged

his status,impliedthatanyunauthorizedabsenceamountedto a flight.Itcomes as no sur
prise, therefore, was a permanentconcernfortheestateownersand emperors.
thatflight
would seem,consideringthe legal textsand papyri, to
Coloni, particularlyadscripticii,
have been prone to flight,presumablybecause of theharshconditionsof thefarminglife.
This is to be distinguishedfromabsence as such,which, as longas a person liable forthe
colonate by origo had not been formallysummonedby his estateowner to performhis
duties,was possible. If a colonus had fled,his estateowner could coerce him to return,
with theassistanceof theprovincialadministration(CJ II.48.6, on adscripticii). More
over, itwas forbiddentoharbour fugitive coloni (CJ II.48.z3.4-5). Itmight turnout that

70
Sarris, op. cit. (n. 9), 60-1.
71
CJ 11.50.2.3: '... ne quid de peculio sui cuiquam colonorum ignorante domino praedii vender? aut alio modo
alienare licet.'
72
See A. J. B. Sirks, 'Continuit? nel colonato?', in E. Lo Cascio (ed.), Terre, proprietari e contadini dell'impero
romano. Dall'affitto agrario al colonato tardoantico (1997), 183-4; Sarris, op. cit. (n. 9), 65.
 THE COLONATE IN JUSTINIAN S REIGN I37

thecolonus (to be) had availed himselfof a positionwhich provided immunity fromobli
gations,based on theorigo (likecurialduties).The imperialservices,theChurch and the
monasteriesofferedsuch positions,and in ordernot to harm theestateowners, itwas
forbiddentoacceptcoloniwithout theirestateowner'sconsent(CJ II.48.18, I.3.36 pr., z)
or at all (CJ I2.43.I, I2.54.3).When itneverthelesshappened, the immunity was ineffec
tive(CJ II.48.II, mentioningoriginarii,i.e.,personssubjectedon accountof theirorigo).
This indicatesagain thepublic law sideof thecolonate.
But aswe saw previously,at thebasis of all theseregulationslay theconcernand need
forsufficient labouron theland.Therewere alwaysestateowners inneed of hands.Thus
itappears thatcoloniwho had fledwereworkingon thelandof otherpeople. Itcould be
thatestateownersknew theydealtwith coloni and used themto theirprofit.Theywould
accomplishthisby having themtilllandand turnover itsproductsto them,or by having
themperformotherlabourand notpayingthemanywages. The textimpliesthattheyused
theirknowledgetoblackmail themwith theirfugitivestatus.In thatcase theyhad topay
the taxeswhichwere otherwiselost (CJ II.48.8 pr.).However, itcould also be thatthe
estate owners did not know of the flightand that the coloni deceivinglyofferedtheir
servicesasmen, freeof thecolonatebond (ingenuiis thetermin thesourcesforthosefree
fromsuchpublic obligations),as farmlabourersor as tenantsor share-croppers.In that
case the taxes should be claimed directlyfromthecoloni themselvessince,as the texts
state,itconcernsa contractusprivatus.And so, as theconstitutionsays,all fugitives will
be recalledtogether with theiremolumentatributaria('fiscalbenefits',i.e.,what theyhad
to pay as tax - the capitatio humana - and which was a benefit to the state; Cl
II.48.8.I). In all cases any debts should be settledbefore the return(C) II.48.8.z).73 If
theserulesconcern 'free'coloni,CJ II.48.8.I would state theobvious, since thesepeople
were alreadydirectlyresponsiblefortheirpoll tax; but theobvious is indeedsometimes
stated.Yet the referenceto a contractusprivatus implies that the text refersto the
adscripticii.It followsthatincase of flighttheobligationof theestateowner topay forhis
adscripticiistopped (as regardsfuturetaxes).Thus ifadscripticiifledand were used by
anotherestateownerwho did not pay thema loan,neitherfromtheoriginalestateowner
nor fromtheadscripticii(orcoloni) themselves could thepoll taxbe reclaimed.Hence the
impositionof theliabilityforthison themala fideestateowner. In thecase of the 'private
contract'there was no reasonwhy itshouldnot be claimed fromthefugitivesthemselves.
It is obvious that thesemeasures did notmake theharbouringand use of coloniwho
had fledlessattractive,74 while itburdenedthedeprivedestateownerswith thesearchand
reclamation. Flightwas evidentlya problem,as thenumberof suretiesproves (seeSection
Ix). A fineof iz pounds for the fiscand theobligation to rendernot only theclaimed
colonusbut also anotherfarmerand hisprice (probablytheadditionalvalue of landby the
appendageof an adscripticius,such as of a slave as instrumentum, towork on it),should
have deterredpotentialharbourers(CJ II.48.I.z2).
A colonamight fleeto a townor anotherplace andmarry an ingenuus(i.e., someone
not subjectedto thecondicioadscripticia).Ifshewas found,shecould be recalledwith her
offspring(CJ II.48.I6). That heroffspring could be claimedaswell was due to inequality
as regardstheorigoof townand estate (seeabove, atCJ II.48.24). Otherwise thechildren
would have followedtheorigoof theirfatherand not have been subjectedto thecondicio
coloniaria.The case of an adscripticiusmarryingan ingenua was alreadydealtwith above.
Ifan estateownerpossessed ingood faithcoloniwho were claimedby somebodyelse
(as in thecase before),and thecoloni fledtoavoid theoutcomeof thelitigation,itwas the

73
By this ismeant the system we know from theHeroninos Archive, that on an estate account books were kept in
which entries were made for things bought by the labourers from the estate and for salaries earned. See on this Sirks,
op. cit. (n. 8), 362-4. The settlement would have made clear the amount of the peculium of the coloni, see below.
74
The harbouring estate owner would upon discovery pay the taxes which he had not paid, but he would have
saved them otherwise; and in the second case he only had to pay their wages.
138 A. J. B. SIRKS

estateownerwho could claim themback and not theotherperson;havingreturnedtohim,

theactual procedurecould start (CJ 11.48.I4, in accordancewith theuse of possessory
interdictsin theprivate law).

XI DUTIES IN THE 'FREE COLONATE

Those subjectedto the 'free'condiciohad to remainon theestateor land theyhad as origo

(in thissense theywere originalesor originariias well) and had to tillthis(CJ II.48.23.I,
5I.I, 52.I.I, 53..I), according to theconditionsoriginallyset for theirancestors (CJ
II.48.23.3). Since theywere obliged towardstheirestateowner to performtheserviceof
agriculture,they were in thisrespectsubjectedtohis power (CJ ii.5z.i.i; unless thiswas
only valid inThrace). They could be recalled in case of absence (CJ II.48.z3.4-5, 5I.I,
52.I, 53.I). Itwas forbiddento reduce theirstatus, i.e., tomake themadscripticii(CJ
II.48.23.I). They had to pay the tax, and theycould dispose of theirpossessions (Cf
II.48.i9, 52 pr.). Underwhat condition theyheld the land is unknown (apart fromthe
special case ofNov.just. i6z.z), but CJ II.48.20 pr.-z would suggesta charge. It is not
knownwhether theirestateowner could release them.

XII THE DIFFERENCE BETWEEN THE TWO CONDICIONES: THE PECULIUM

Cf 11.48.23.I proves thattherewere twokindsof colonate inA.D. 534, as does theplural

inCJ II.48.z3.3. . Whereas adscripticius is used both as noun and as adjective to colonus,
there is no such word to distinguish the other coloni otherwise than the reference that they
are 'free', and we have to interpret colonus in its context to see to which category it
applies. Likewise we have to do this for originarii and originales, terms which express the
liability for a condicio by way of the origo. The question iswhat precisely the difference
was between these two condiciones, apart from the way of paying the poll tax, since in
both cases there is, basically, an obligation to be on a particular piece of land and render
agricultural services. Perhaps with the adscripticii the estate owner could ask other services
as well, whereas we see that for 'free' coloni the obligations must have been circumscribed
precisely and were not to be changed (CJ II.48.23.2).
CJ II.48.I9 defines the differencesevidentlyimportantfor theByzantines. In the
adscripticiate, the colonus held his peculium for the estate owner. In the 'free' colonate,
the colonus was 'free' and with him his assets (scil. what otherwise would have been a
peculium; ?6O?fpot gPVoVT-C t?&1bTo^v icpuyjiaTov owuv). The meaning of Ta tokTwv
toi5 6crnrTrnv tV1K?inCf II.48.I9 isnot clear.Two other textsstatethatthe
JciKOUXWL
adscripticii could not alienate anything in the peculium without the estate owner's
consent. These assets could be claimed after an adscripticius' death by the estate owner as
peculium.76 Mention of this peculium ismade in the context of the faculty of coloni to

75
Grey denies the existence of two condiciones coloniariae, but he does not analyse CJ 11.48.23.pr. and 1, he only
mentions CJ 11.48.19: Grey, op. cit. (n. 8), 173 and 173 n. 104. See, however, my refutation of this in n. 43. But
regarding CJ 11.48.4, Mirkovic, op. cit. (n. 42), 69, whom Grey criticizes, is correct in assuming it concerns
adscripticii. It is evident from these texts that Justinian considered two different statuses: one the adscripticiate, a
deterior condicio (and 'worse' implies that there is another, 'better' status), and another, the 'free' colonate, less or
not deterior.
76
CJ. 11.50.2.3: 'Cum enim saepissime decretum sit, ne quid de peculio suo cuiquam colonorum ignorante domino
praedii aut vender? aut alio modo alienare liceret, quemadmodum contra eius personam aequo poterit consistere
iure, quem nee propria quidem leges sui iuris habere voluerunt et adquirendi tantum, non etiam transferendi
potestate permissa, domino et adquirere et habere voluerunt?'; CJ 1.3.20.1 deals with the inheritances of clerics, left
to the monastery or church. If somebody has a claim, as the patron has a claim to a part of his freedman's estate, it
has to be honoured. In this context the estate of a censibus adscriptus ismentioned: '... bona seu peculia, quae aut
patrono legibus debentur aut domino possessionis, cui quis eorum fuerat adscriptus ...'
 THE COLONATE IN JUSTINIAN S REIGN 139

litigateagainsttheirestateowners:CJ ii.50.2 pr. describesthedifference betweenthetwo

categoriesof coloni in a veryellipticway, but itcomesdown to this.The coloni censibus
dumtaxatadscripti ('merelyregisteredin thecensus'), i.e. the 'free'coloni, are not sub
jected to theirestate owners,whereas theother category,thatof theadscripticii,are
obliged (obnoxii)because of theyearlytaxesand theobligationsof theircondicio,which
makes themsubjectedas ifina certainkindof slavery.For thatreason theirfacultyto sue
theirestateowners is very limited:thensuch a thingis unbearablewhere theirmasters
have thepower to alienate themtogether with theestate theyare on (CJ ii.5o.z.i). The
word obnoxius canmean 'subjectedto another'spower', 'liable'or 'obliged'. In thelatter
sense it isoftenused in thecontextofpublicobligations(munera),"as here,but thenature
of theseobligationscould have had theeffectthatthefirst meaning creptin.Furthermore,
thetextrhetorically puts thequestionof how sucha colonusmay alienateanything he has
inhis peculiumwithout hismaster's knowledge,when the law did notwant him tohave
an independent facultytodo so and allows himonly to acquire and possess forhismaster
(CJ II.50.2.3). This stronglyrecallsa slavewho had a peculiumbutwithout the libera
administratio over it (whichwould have allowed him to alienatewithoutpriorpermission
of his owner, seeCJ 4.z6.io). The languageis rhetorical, but it isbeyonddoubt thatone
ormore constitutions theadscripticius'facultyas owneror confirmed
had eitherrestricted
a private law construction with a restriction
regardingalienation,and thatsubsequently
thisrestriction together with thebond to the landhad led to the interpretation and con
firmation of thepositionof an adscripticiusas being in thepotestasof theestateowner.
One has to realize that inprivate law an estateownerwould always have been able to
recoverdebts of his adscripticiiby seizingand sellingtheirprivateassets, afterhaving
obtaineda judgement againstthem.If theseassets includedsucha peculium,itassuredhim
thattheassetswere there.But thequestion is,what was thepeculium,whywas thissepar
atemeasure introducedandwhat was itspurport?Did itextend to all possessionsof an
adscripticiusas itwould seem?This questioncannotbe solvedherebut severalarguments
can be raisedwhichmightmake theinstitution fitbetterwith thelaw.
We have seen thatadscripticiiwere given chargeover irrigation works (n. 68). It is
possible thatthesamehappenedwith plots of landwhich theyhad to cultivate.The estate
ownerwould have retainedownership.In thissituationtheadscripticiuswould act as
actor (representative) fortheestateowner:he tookcare of hisplot and turnedover a lump
sum. If he borrowedmoney, thecreditorcould not recoverthisfromtheestateowner
unless the latterhad givenan order (iussum),inwhich case he could proceed against the
estateownerwith theactio quod iussu.78
The question is reflectedin a case inwhich an adscripticiusispledginghis possessions.
InP.Oxy. LXIII.4398 (A.D.553) the&vaco6ypapoq7yopy70q Victor giveshis possessions in
surety(Ktv6UVv(q) cdovgtoi6zapX(O(6vov))to his estate ownerDioscorus for a loan of
wheat forsowingon theestatefieldsinhis charge (Vi'?t?).He promisesto returntheloan
togetherwith thepaymentofhis tax (pac&KaicTOO(POlKOt)gou Popou) inkindof thesame
quality.With pOpoqthe tax on theadscripticiushimselfismeant;why shouldVictor be
liable forsomebodyelse's land? Ifhis possessionswere peculium in thestrictsense (i.e.,
propertyofDioscorus, inchargeofVictor) he could not do this.Neither is it likelythathe
could pledge a potentialclaim to theremainder ofpeculiumin thewider senseas discussed
above. It is thesame inP.Oxy. LXVI.4s3s (A.D.6oo), where the ?xcucoypcpo;yeopny6

77
See Sirks, op. cit.
(n. 25,1993), 164; A. J. B. Sirks, 'Obnoxietas', inQuestions de responsabilit?, XLV?me Session
de la S1HDA 32.5-32.
(1993),
78
This would mean that he could recover the amount as comprised in the order. Normally we see the quod iussu
applied to slaves and sons in potestate, but ratification (ratishabitio) was possible anyway. By this the represented
dominus would become liable for the dealings of his procurator. This would work also for a colonus who
?
functioned as actor. The variation of action quod iussu which restricted the liability of the dominus to the range
? sense was
of the iussum would make if this done. See for the ratishabitio and iussum, A. Kacprzak, 'Ratihabitio'
nel diritto romano classico (2002), 91-113.
 I40 A. J. B. SIRKS

Elias acknowledges a debt to his estate owner, forwhich he gives a securityon his
property, mortgaged to this purpose (KtV6<6V>p TO)V?ioti 6.cpn6va vV]ZTOKM1tEvOV Ciq
Anothercase: ina deed of surety
tofito).79 Zacharias guaranteesthattheadscripticius
will
pay this and the tax of the estate orchard he has to work on ('Ocv 67Tp ciauTou (popov;
P.Oxy. XXVII.z478 of A.D. 595/596).
We shouldnot read thisas ifhewere liablehimself
for the taxes, but that he will pay (in any case) this amount to the estate owner, since he
likeVictor cannothave been liable forthetaxesof anotherperson.
The cases conformwith thepracticeattestedinCJ II.48.20 pr. thatcoloni turnover
most or all revenues,out ofwhich the landownerpays all taxes.Here it seems thatthey
could retainpart of the revenues.
Was thispart the reward for theirwork and conse
quently their property? Or was itworking capital provided to them in this way by the
estateowner?Did theydispose, in thisway, over a floating
work capital, sometimesbut
tressedwith a loan, towork as smallentrepreneurson theirplot? If so, theestateowner
could also recoup from it the taxes he paid for the colonus if the latter had not turned
enoughover.80 CJ 4.z6.I3.4 andCJ II.48.8.2 referto suchfinancialpracticeswith a period
of accounts.
ical settlement
Next to that thereare clearlyassetswhich do not fallunder thecontrolof theestate
owner, or else a pledge would make little sense, and Elias is quite assertive in his assurance.
This is certainlythecase forimmoveablesand herewe must assume thattheadscripticii
were not underany lien;as followsfromCJ II.48.4.I with itsregistration of adscripticii
in thecensusof the territory,
where theirown plot of land lay.And indeed,nowheredo
the textssay thatall theadscripticiihad was peculium: theyonly say thattheadscripticii
cannot freelydispose of theirpeculium- which leaves open thepossibilitythat they
owned other assets, not part of the peculium and that thiswas settled by law.
With the 'free'coloni, theenrolmentdid not have thesameeffects. Since theyhad topay
theirpoll tax themselves,theneed fora guaranteefromtheestateownerwas evidently
superfluous.Their obligationwas solelybased on a public obligationand not on a private
contract. If they exploited the land with capital from the estate owner, itmust have been
organizedand settledaccordingto theusual private law ruleson loan.The yearlysettling
of accountswould havemade themownerof theirsaldo.
The situationrecalls remarkablytheclassicalRoman law figureof a person inman
cipio.Mancipium was thepower (potestas)a pater familiasexercisedover a freeperson
other than his wife or children. Such a person could be the son of another who had been
mancipated to him in the course of an emancipation, or a debtor which had been
adjudicated tohim throughaddictio by themagistrate.81Theywould remainfreepersons
and capable ofmarriage.The pater familiascould acquire throughthempropertybut not
possession (Gai. z.90), thuswhat theyhadwould be peculium.Under Justinianthesetwo
sourcesofmancipium had disappeared and with themthemancipium as personal law
status,82 but if the adscripticiate had been created in the firsthalf of the third century, it is
verypossible thatitwas modelled afterthemancipium,sincethismust stillhave existedat

79
Both formulations are almost in perfect accordance with what Justinian in CJ 8.16.9 wrote as necessary to
establish a hypothec: 'fide et periculo rerum ad me pertinentium'; cf. P.Oxy. LXX.4794 (a.D. 580), also a hypothec
of all belongings. Itmay look strange that in a case of peculium there could be a debt of the adscripticius to his estate
owner, but the peculium functioned as a separate entity and was usually leftwith the dependent person after the
dependency ended, after a final settlement to establish its net value.
80
Not unlikely, since a harvest had to supply food for his family, seed for the next year, and pay the taxes. The
first two expenditures would have priority. In view of the loans for seed, attested harvests were not always sufficient.
81
For the first, see Kaser, op. cit. (n. 25), 302. For the latter, see M. Kaser and K. Hackl, Das r?mische
Zivilprozessrecht (1996), 387-8.
82
Justinian abolished the mancipatio because it had fallen into disuse by his time, emancipation being performed
now before the magistrate; and condemnation to pay a debt no longer led to addictio in the power of the creditor.
 THE COLONATE IN JUSTINIAN S REIGN I41

that time.83 The mancipium could be imposedby a public officialand consequentlyby

public law, so to assume thattheact of inscriptionintothe (public)census register drew
thecolonus into theadscripticiateisdefensiblesinceCJ II.50.2.3 refersto sucha statute.
Yet therearemore aspects to theadscripticiate.It isevidentthatitwas connectedwith
thepaymentof thepoll tax.The estateowner tookupon him theduty topay thisand the
adscripticiuswas bound because of thisyearlytax. Itmust have been a bond tohis estate
owner.84 The colonate served(also) toguaranteethelatterthecounter-performance of the
colonus. If thecolonushad been a tenant,theestateowneras lessorwould have had a tacit
hypothecon thepropertyof the tenant(CJ 8.I4.7), whichmeant thateven ifthe tenant
sold his goods, his claims could stillbe satisfied.
Therewould have been no need forthe
privilegesthe adscripticiategave the estate owner. This (again) is a strongargument
against the idea of tenancyas being fundamentalto theadscripticiate. Adscripticiiwere
thenoriginallyeitherland labourersor farmers who had a plot of landof theestateowner
incharge(inprecario?).It is likelyinviewof theirpresumablydestitutesituationthatthey
would have been dependentfortheexploitationof thison theestateowner forloansand
leniencyin timesof adversity;as theydid forthepoll tax. In thiscase theprivatelaw did
not offertheestateowner a formof security. Mancipium would have been a solution.
Regarding thosewho could only offertheirlabour, it securedtheauthorityof theestate
owner to summonthemand to forcethemtoworkwithout theneed to go to court first.
Regarding thosewho had some assets, it securedhis claim by thesebeing treatedas
peculium.A furthersecuritywould be built in by denying the adscripticiithe libera
administratioover thepeculium,whichmeant thattheycould not alienateanythingin it
without theestateowner'spermission.85 Protectionof theestateowner's interestinhaving
recovery of thetaxpaid byhim as guarantormust have led to thelegalisationof thisand
consequentlythepeculiumwould have been an effectof theenrolmentin thecensus as
adscripticius.An exceptionexistedfortherealestate theypossessed in as faras theyhad
to pay the tax forthis (the tributum)themselvesand had to registerin thecensusof the
territorywhere the land lay (CJ II.48.4.I). Since theirestateowner apparentlydid not
carryany liabilityhere, it is likelythat thepeculiumconstructiondid not apply to this
land.Here thetaxcollectorcould seize theland incase of default.
Ifsomebodywas liableto theadscripticiatebyorigo,hewould have unrestricted owner
shipof his assets untilhe was summonedand had acknowledgedthisobligation, in the
sameway aswas donewithmunera.His moveable assetsmust thushave become subjected
to thepeculium.
This is one way to explain thepeculiaritiesof theadscripticiate. The otherpossibility
would be thattheadscripticius would have transferred hispossessions infiduciaryowner
ship tohis estateowner, inorder toprovidesecurity. He would keep possessionor receive
his propertyback in precario. The practice of transferring was not uncommonwith
sociallyvulnerablepeople, sinceas propertyof a powerfulperson their(few)assetscould
not easily be seized by the authorities.This practice of transferring assets was

83
It is said that we do not have a constitution introducing the colonate or adscripticiate. This is true and itwould
indicate an introduction under Diocletian. If itwas done after A.D. 311, there would have been a general constitution
issued, which would have figured in the Theodosian Code and after that in Justinian's Code, and probably also in
the Breviary of Alaric. It does not. On the other hand, we possess from Diocletian's reign up till A.D. 295 only, or
almost only, rescripts, and such an introduction is not likely to have been done by way of this expedient. Yet it is
still possible, and a constitution of Diocletian for the period A.D. 285-305 is possible too.
84
Regarding the fisc, everybody would have been bound and itwould not have merited a separate mention.
85 was to a slave: he could then alienate things out of itwithout the
It possible to grant the libera administratio
prior permission of his owner, who was also the owner of the assets in the slave's peculium. Although in the Later
Roman Empire filii familias got a libera administratio, Justinian went back to the old system (M. K?ser, Das
r?mische Privatrecht II (1971), 215).
 142 A. J. B. SIRKS

condemned.86 To call untechnicallysuchgoods peculiumwould fitthesituationof social

dependence.We would, however,have to assume thatitwould have been recognizedlater
hypothesisgives a betterexplanation,although
on inpractice,which isunlikely.The first
thereremainquestions,suchas: howwould theregistration in thecensushave takenplace?
Did it indeed automaticallyentail the restrictionsin litigation,imposed upon the
adscripticius?87

XIII SOME CLOSING OBSERVATIONS

We have concentratedour investigation on Justinianiclegal and documentarytextsand

seen thatit ispossible to get a coherentview on thecoloni censiti.
First, therewere two condiciones regardingcoloni censiti,thepersons registeredin
somebody'scensus as coloni: the condicio coloniaria or adscripticia,and the condicio
whichwe called the 'free'colonate.The condicioadscripticiawas based on an origo estab
lishedon an estate,itselfbased on descentfroma fatheror unwedmotherwho had already
been subjectedto thiscondicio,or on an enrolmentintothecensusof theestateowner fol
lowingan agreementto thiseffect. The othercondiciowas also based on an origo estab
lishedon an estate,and thisagain on thedescentfroma fatheror unwedmotherwho had
alreadybeen subjectedto thiscondicio,or on theimpositionof it.
The consequencesof each condiciodifferedconsiderablyinprivate law. In thedomain
of personal law, thecondicio adscripticialed inA.D. 53I/534-539 fortheadscripticiusto
restriction on marriagewith a woman not subjected to thiscondicio. In thedomain of
propertylaw, it implieda grave restriction regardinghis assets (hismoveables and prob
ably formost of theadscripticiitheironlycapital). Itwas called peculiumand considered
as ifpeculiumwithout liberaadministratio, which impliedtheprohibitionagainstalien
atinganything without thepermissionof theestateowner, includingthefacultytodispose
by testamentof his peculium. If an adscripticiuspossessed real estate, thispropertywas
not affectedby it.Regarding procedural law, in this condicio the possibilityfor the
colonus to sue theestate ownerwas reduced to theposition of a freedmanagainst his
manumissor,i.e. itwas almostnil. Itwas theserestrictions whichmade himconsideredas
ifinpotestateand a subjectedperson, ifthiswas not alreadya featureof his condicio.The
othercondiciodid not have theseconsequencesand thosesubjectedto itwere called,with
justice,'free'.
In public law, theconsequencesof both condicioneswere originallythe same: both
kindsof coloni could be summonedor, incase of absence,be recalled,together with their
familyand peculium.Both could be ordered toperformservices within theexploitationof
theestate thatwas theirorigo.Regardingprocedures,itwas thesame: theycould sue their
estateownersforunjustclaims regardingtheircondicio.But theadscripticiihad threepos
sibilitiesto leave theircondicio.They could exit theircondicio if theestateowner con
sentedto this.If theyfulfilled theirobligationsforthirty years,theircondiciochanged into
thatof the 'free'colonate, and thisapplied to theirchildrenas well. This will not often
have been thecase. FromA.D. 539onwards, ifa male adscripticiusenteredamarriagewith
awoman not subjectedto thecondicioadscripticia,thechildrenof sucha marriagewould
be 'free'coloni and could even transfer theirorigo to theirown estate iftheyacquiredone
largeenough forthemto be fullyoccupiedwith it.
In both condiciones,thecoloniwere taxed forthepoll tax. If theypossessed land, they
had tomake a professio in thecensusof the territory where it layand pay the tax on it

86
See CJ 2.13-14 on this. Cf. further CTh 13.7.1, which describes this practice with ships, whose owners wanted
to escape the compulsory transportation; and CTh 12.1.6 fin. for a decuri?n.
87
I therefore offer this hypothesis with reservation. In view of the present state of information a good analysis of
the taxation system in the Later Roman Empire is indispensable for further research.
 THE COLONATE IN JUSTINIAN S REIGN 143

themselves.In thecase of thepoll tax (capitatiohumana), theestateownersof adscripticii

paid thistax to thetaxcollectors,because theyhad takenon responsibility forit,while the
adscripticiiin theirturnwere topay it to theirestateowner. Itwould go too farto see in
thisconstructiona role for theestateowner as public tax collector,as Gascou does.88It
was rathera case of takingover as primaryco-debtorand thusbeingobliged to renderthe
amountof the tax as revenue.The otherkind of coloniwas in thisrespect'free'as well:
suchpeoplewere primarilyresponsibleforthistax and had topay it themselves.
Justinianunderlinedthecontractualoriginof theadscripticiateand althoughwe do not
know how oftenthiswas thecase inhis time(manycases of theadscripticiateinhis reign
will have been based on origo bydescent,aswill have beenmost or almostall cases of the
'free'colonate), itmust have happenedor else his emphasiswould not havemade sense.
And we know of a case of re-admittance to theadscripticiate(seen. I7). This means that
theadscripticiate was not a universalphenomenonwhich afflicted all farmlabourers.And
on theother side, the implementation as a statusbased on origomeant thata colonus
censituswas not necessarilya farmlabourer,but could pursueotheroccupations.
In view of therestricted scope of thisarticleit isnot possible to draw conclusionsfor
theentiredebate on thecolonatehere.But somethingcan be said nevertheless. The many
referencesto coloni censitibeing away fromtheestate and occupyingpositionswhich
shieldedthemfrombeing summoned,theemphasisof Justinianon thecontractualorigin
of theadscripticiate,theoccupationsof thoseadscripticii who were of thisstatusappar
entlyonlyon accountof theirorigo, indicatethatforJustinian'sreignthecharacterization
of societyas a sociallypetrifiedsystemdoes not hold well for this level.Neither is it
possible to state that thepersonalpositionof thecolonus censitushad deterioratedinto
serfdom.89 This corroboratesthecaution as expressedby severalauthors.Perhaps society
and thecolonatewere indeedso, or to an extentso in theperiod up untilJustinian;but
thenone has to surmisea considerablechange inbothat somemomentbetweenDiocletian
and Justinian.

Oxford
boudewijn.sirks(law.ox. ac.uk

88
J. Gascou, Les grands domaines, la cit? et l'?tat en Egypte byzantine, Travaux et M?moires 9 (1985), 22-3.
Following Gascou: M. Kaplan, Les hommes et la terre ? Byzance du Vie au Xle si?cle (1992), 162. Challenged by,
e.g., Sarris, op. cit. (n. 9), 155-9. F?r a summary of the increased reservations, see B. Palme, 'The imperial presence:
government and army', in Bagnall, op. cit. (n. 65), 263-4. See also n. 31 and Section vu.
89 see n. 9, without any reservations.
As Demandt,