COLONA´TUS
COLONA´TUS,
COLO´NI.
Colonus originally denoted the free lessee of land under a contract of
locatio conductio, whence it acquired the
derivative signification of an agricultural class under the empire,
analogous to villeins in England, of which we first definitely hear about
the time of Constantine, A.D. 321. These coloni (also called
rustici, inquilini, agricolae) were settled on the
estates of the larger landowners, a portion of which each of them cultivated
as tenant at a fixed rent (
annua functio), paid
usually in kind (Cod. 11, 47, 5; ib. 20, 2), the amount of which was settled
by custom and tradition: this the landlord could not raise, and the only
case, apart from crime, in which the colonus could bring an action against
him was where he attempted to do so. Occasionally, however, the rent was
fixed by agreement. They were inseparably attached to the soil (
glebae adscripti) which they tilled (Cod. 11, 47,
11, 7; 11, 51, 1); they could not leave it of their own accord (Cod. 11, 47,
21), nor could the lord or patronus eject them or sell them away from it;
but he could alienate them with the land (Cod. 11, 47, 2), and transfer
superabundant coloni from one to another of his own estates. Thus in many
respects they were like slaves, and it is said in the Code (11, 51),
“licet conditione videantur ingenui, servi tamen terrae ipsius,
cui nati sunt, existimentur.” The analogy, indeed, may be carried
further. The colonus is said (Cod. 11, 47, 21) to be in the
potestas of his dominus; the latter had the right of
inflicting corporal chastisement on him (Cod. ib. 24): if he ran away, he
could pursue him in the same way as a
servus
fuqitivus (Cod. Theod. 5, 9, 1, 2); and if he sold him away from the
estate, he could recover him by a vindicatio or real action (Cod. 11, 47,
7). That the colonus could as a rule bring no action against the patronus
(Cod. 11, 49, 2) has been observed already. In the eye of the law, however,
the coloni were free (Cod. 11, 51); they could contract a marriage which the
law recognised (Cod. 11, 47, 24), and could acquire property, which was
called their
peculium (Cod. Theod. 5, 10, 1);
but if this were land, they could not alienate it (Cod. Theod. 5, 11, 1);
and it is probable that they could not alienate even personal property
without the consent of the patronus. It seems, too, not unlikely that they
could make a will, in default of which their property went to their next of
kin: for if a bishop, presbyter, deacon,
[p. 1.472]&c., died intestate and without kin, his property went to the
church or religious house to which he belonged, except such as he had as a
colonus, which went to his patronus, who with respect to his ownership of
the land is called
dominus possessionis (Cod.
Theod. 5, 3).
Upon every colonus a poll-tax was levied (whence they are sometimes called
censiti, tributarii): this was paid
immediately by the dominus, who was left to recover the amount from the
colonus himself (Cod. Theod. 11, 1; Cod. 14, 26). The burden of recruiting
the army was also thrown on the great landowners, who regularly enrolled
their coloni for this purpose (Vegetius, 1.7), the rule against their being
separated from the soil being to this extent suspended; a colonus by
becoming a soldier was released absolutely from the quasi-servile condition
(
Nov. Valent. 6).
The status of colonatus originated most frequently in birth. When both the
parents were coloni, the children were coloni as well (and here they were
specifically called
originarii). If the parents
had different domini, it was finally settled that they should divide the
children between them; and if there was an odd one, it should go to the
dominus of the mother.
If the mother were a slave or a colona, the rule
partus
sequitur ventrem was followed [
CIVITAS]; but if the father was a colonus and the
mother free, the children (except for a brief suspension of the rule by
Justinian) became coloni as well. By
Nov. 22, 17, Justinian
declared the marriage of a colonus and a free woman void. The status could
also originate in Prescription, a free man who lived for thirty years under
a dominus as colonus becoming colonus in fact, though he retained his
property free from the ordinary restrictions (Cod. 18, 23; 11, 47, 1); and
similarly a dominus who possessed for thirty years a man who belonged to
another, could defend himself against the claim of the latter by
Praescriptio longi temporis. Again, a free man could
voluntarily become a colonus by agreement, provided it were judicially
ratified, or his name were registered in the poll-tax inventory of the
estate (Cod. 11, 47, 22, pr.), and he married a colona (
Nov.
Valentin. III. 100.30). Sometimes, again, persons were reduced
to this condition as a punishment: e. g. able-bodied beggars would be
adjudged coloni to any dominus who informed against them (Cod. 11, 25, 1);
and finally a dominus could convert a slave into a colonus at pleasure by
enrolling him in the poll-tax inventory of the estate (Cod. 11, 47, 7).
As to the modes in which a man could cease to be a colonus, it has been
already observed that he could not cast off this condition at pleasure, the
reason being that the institution was founded in the interests of
agriculture and as a convenient resource for taxation. Before Justinian a
colonus could become absolutely free by living thirty years, a colona by
living twenty years in another condition--in other words, complete freedom
could be acquired by prescription; but this rule was repealed by Justinian
(Cod. 11, 47, 23), who enabled the dominus to assert his right after any
lapse of time. Nor could the dominus release his coloni, as he could his
slaves, at his own discretion: in fact, in the time of Justinian the only
modes in which escape from colonatus was possible seem to have been
enrolment in the army under the lord's sanction (see above), a direct act of
the state, and attainment of a bishopric (Cod. 1, 3, 1.1, 16, 37).
As to the historical origin of colonatus, it has been observed above that our
first definite information on the subject commences with Constantine. There
are, however, two passages in the Digest (
30,
112, p., Marcianus; and 50, 15, 4, Ulpian) which,
notwithstanding Savigny's attempt to understand them of ordinary lessees or
farmers, seem clearly to indicate that colonatus existed for some time
before that emperor. The most generally accepted view of the mode in which
it originated is that which ascribes it to the settlement of Germans and
other barbarians by the Roman emperors on waste lands within the limits of
the empire. The condition of these foreign settlers being once established,
it is supposed that poor Roman citizens were allowed to assume it, partly
being induced to do so by the advantage of getting land, and partly under
compulsion, though how this compulsion could be exercised is not clear. A
constitution of Theodosius II. (Cod. Theod. 5, 4, 3, ed. Wenck) contains
some valuable information on the settlement or colonisation of the
barbarians, and declares them to belong to the condition denoted by the term
colonatus. It is possible to reconcile this
view of the origin of colonatus with the passages of Ulpian and Marcianus
referred to, by supposing that there was a tendency in the third century for
free lessees to become attached by law to the soil, and that their condition
was the model of that of the barbarians who were settled in the Roman
empire; the latter, however, acquiring a more dependent status than the
former, and being treated more like slaves: till eventually the condition of
the barbarian coloni became that of all. (A. W. Zumpt,
Ueber die
Entstehung des Colonats, 1843; Huschke,
Ueber den Census
der Kaiserzeit, 1847; Savigny,
Vermischte
Schriften, ii. p. 54
sq., translated in the
Philological Museum, vol. ii.)
Puchta, however (
Institutionen, vol. ii. p. 98.214) is of
opinion that colonatus originated in the common distinction between slaves
used for domestic service in the house (
familia
urbana) and those employed in agricultural labour (
familia rustica). The latter, according to him,
enjoyed a larger degree of actual freedom, and in many ways were better off
than the former; they and their children came more and more to be regarded
by sensible landowners as accessions of the soil, inseparable from it except
under the pressure of necessity. Their actual condition very closely
resembled that which the coloni possessed in law; and Puchta supposes that
the transition from personal to praedial servitude, with the payment of rent
and the other incidents of the status described above, was effected by and
in the interests of the domini themselves, who procured an enactment
enabling them to manumit their slaves on the condition of their being
inseparably attached to the land which they cultivated.
[
J.B.M]
