The Colonate in Justinian's Reign Author(s): A. J. B. Sirks Source: The Journal of Roman Studies, Vol. 98 (2008), pp. 120-143 Published by: Society for the Promotion of Roman Studies Stable URL: http://www.jstor.org/stable/20430668 . Accessed: 23/07/2013 07:31

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This content downloaded from 194.95.59.195 on Tue, 23 Jul 2013 07:31:08 AM All use subject to JSTOR Terms and Conditions The Colonate in Justinian'sReign

A. J. B. SIRKS

Every studyof the colonate of theLater is confrontedwith the legal sources inTheodosius' and Justinian'sCodes. Since theseconsist of fragmentsof imperial ,usually entered into the Code with addressee,date and issuingemperor, it is verytempting to consider them as fragmentsper se, as unrelatedhistorical facts which are oftenbut feebleimages of theoriginal. They have been put, it is true,into titleswhich are said to deal each with a particularsubject, but does thismake the individualfragments relateto each other? Such a view of theseCodes would be comparable to readinga sentencein a languagethe grammarof which one does not know: theremay be individualwords which one might understandbut coherence is lacking.And thereare certainlycollections of legal rules which do indeed lack coherence,which are nothingbut a disorderlymess. Yet even fora collectionas early as Hammurabi's Code ithas been argued that it is to some extent structuredand thatcaution is necessary.1That is certainlythe case with theRoman law codes. The orderof thepraetorian edict may have been a historicalgrowth only; itnever theless served for centuriesas a structurefor commentaries,and theGregorian and HermogenianCodes, aswell as thetwo above-mentioned Codes, inpart followedits struc ture.But with each code also an effortwas made to organize thematerial systematically. Moreover, twoother structureswere used in legalwritings: that of Sabinus' treatmentof thecivil law, and the institutionalsystem, of which ' gained greatpopularity. The commentarieson theedict and Sabinus' treatise,as well as the institutionalworks, are evidenceof thefact that Roman lawwas an intellectualsystem. And as in thecase of the sentencein a foreignlanguage the remedy presents itself (the grammar), so here it isbetter to take thecodification seriously and to consider it fromthe legalpoint of view, thatis, as Justinianhimself said for theDigest, 'sit una concordia una consequentia adversario nemineconstituto' (CJ I.I7.i.8), ratherthan discarding the codification as such.2

I JUSTINIAN'S CODE

Those twocodifications3 were builtaround a structure.For Justinian'sCode, thestructure ofTheodosius' Code4 firstserved as an example,but itwas completelyoverhauled for the second editionof A.D. 534. The compilersput the texts theyconsidered relevant at the place in thestructure they considered appropriate. This had importantconsequences.

1 See R. Westbrook, 'The nature and origin of the XII Tables', ZSS-rA 105 (1988), 74ff., who strongly argues that various sanctions in Hammurabi's Code must be read as theoretical discursions. But a lot of European medieval town 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 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 I use 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

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Firstof all, thefact that at a certainmoment in timeall data consideredparticular to a subjectare collected is alreadya statementabout what people at thatmoment considered relevantto thatsubject. These datamay vary inage, and theymay certainlyalso be judged upon theirvalue at theirdate of issue,but theyhave an independentand perhapsdifferent value forthe moment theywere collectedand selected.Within thatlatter context they may and shouldbe considered.It dependson thedesign of thecodification what valuemay be attached to thiscontext. Justinian was very explicit about his Code: all constitutions collected in theGregorian, and Theodosian Codes, and all constitutions issuedafter A.D. 438 (thePost-Theodosian Novels), should be collected in one code, but not simplyas theywere found.They had to be examined;what was superfluousshould be removed,as shouldwhatever was similaror contradictoryor had become obsolete, and likewisefor the introductions to theNovels. Texts could be combinedand shortened.The constitutionsshould be put underan appropriatetitle and thereshould be no doubt about theirgeneral validity.5 It followsfrom this that the texts of Justinian'sCode presentin the firstplace rulesof generalvalidity and that in any case within a titlerules on the same subject (indicatedby thetitle's rubric) have been gatheredtogether. This isnot to say that such a titlecontains all therules on thatsubject, because itcontains them only in so faras therehad been constitutionsissued about it.Many textsrefer to an actual case. It could happen thatwhen a case was put before theemperor to decide, he, or laterjurists, dis cernedin thedecision theapplication of a new generalrule or theadjustment of an existing one. In thatcase a (an edictor edictal letter)to thispurport was issued,or the text(e.g., a rescript)was interpretedin thisway. In view of thenature of Roman legisla tion,we may expect thatproblems were dealtwith in a generalway when theyarose and requireda general remedy,that perhaps somepotential problems were includedtoo, but not thatthe administration tried in a perfectionistway to thinkup all theoreticalproblems inadvance and deal with themin a generalway in theconstitution. Such approachesdate fromthe days of theNatural Law scholars.But it ispossible, and in theprivate law indeed veryoften thecase, thatother rulesare contained in thewritings of jurists,in thiscase collectedin Justinian's Digest. Furthermore,Justinian's Institutes also gained theforce of law.Thus to findthe law on a specificsubject as valid in theyears A.D. 530-534, one has to check all thesethree works, as Justinianhimself indicates (CJ I.I7.1.II, z.II).6 It is still possible that thereare some points which were governedby customary, unwrittenor unrecordedlaw, but normallywe may in thisway expect to findall the law 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 (thedogmatics of law) as prevalentat that time- after all, Justinian's entire codification had to serve legal education - or else words and conceptsmight bemisunderstood. Only thendoes one get a pictureof the law at thatparticular point or period in time.What theoriginal reason forissuing a constitu tionwas no longermattered in thecodification process: thetexts do not presentunrelated fragmentsof previouslyissued constitutions but have become (if theywere not already) pieces of a system.That picturecan and should of course be put into thecontext of 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 obsolete ones or not; see Sirks, op. cit. (n. 4), Nr. 44 ff. for a survey.

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I shall follow thisapproach in theensuing research into theagricolae censitivel coloni, partingfrom the textsin thecentral titleon theseand connectingthese wherever appro priatewith textsfrom other parts of theCode, and by this I hope to presenta concise surveyof thecolonate as a legal institutionunder Justinian. I shall restrictmyself to texts relevantfor thepresent argument,8 using theword 'colonate' forwhat in the sources is called thecondicio adscripticia (the adscripticiate with theadscripticii) and thecondicio of the coloni liberi (the 'free'colonate). I use theword colonus in itsoriginal meaning of cultor,cultivator or farmer.It will depend on thecontext whether this farmerwas the owner of his plot of land, a tenantor a farm labourer;also it depends on thecontext whetherhe was subjectedto a particular() condicio or not. Regarding thecolonate, I brieflysummarize the present discussion, without intendingto enterhere extensivelyinto thedebate on thecolonate as institution.In thecourse of the fourthcentury we see constitutionsissued with thepurpose of tyingagricultural workers (coloni) to the land in order to facilitatethe raisingof land and poll tax. Some authors assume thishappened in thecourse of a reformof the taxationsystem under . The statusof theseworkers graduallydeclined and under Justiniana categoryof coloni (theadscripticii) is even compared to slaves.Although itmust have been considerable, there is no informationabout theiractual number.There is certainlyevidence of free labour also in this time.The discussionon thecoloni has been dominatedby two views. One sees thecolonate, within thecontext of agriculturalexploitation, as thesuccessor to thetenancy of theLate Republic (whencolonus was used fora tenant)and as theprecursor of the tiedserf of theMiddle Ages. In thisview itproves theMarxist's theoryof a transi tionfrom slave societyto feudalsociety. In theother view thecolonate isbut one illustra tionof thedecline of theRoman Empire by itssocial petrificationand bureaucracy.Some authors also discern in thecontext of this the emergenceof thegreat domains 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 certainservices of public interest(CJ ii.z-I8), titleson theorganization of thethree main citiesof theEmpire (CJ ii.i9-z8), and titleson theorganization of towns (CJ II.29-47), CJ II.48-53 are about agricolae censitivel 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 (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 in Cambridge 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.

This content downloaded from 194.95.59.195 on Tue, 23 Jul 2013 07:31:08 AM All use subject to JSTOR Terms and Conditions THE COLONATE IN JUSTINIAN'S REIGN I23 of particularprovinces. After thatfollow CJ II.54-57 on rusticaniand theirvillages, CJ ii.58-9 on correctionof thetaxation rate and distributionof desertedlands (peraequatio, impositioagrorum desertorum), CJ ii.6o-i on border-and pasture-lands,CJ ii.6z-5 on patrimonialand other lands,Cf ii.66 on landsof theres privata, Cf ii.67-8 on landsof theres dominica, and Cf ii.69 on landsof thetreasury. In theselast four titles there is also mentionof coloni on theselands.'0 Book ii finisheswith some titleson the leaseof public and imperiallands (CJ II.70-4) and some titleson particularsubjects (CJ II.75-8). This surveyalready makes clear that,notwithstanding that theremay have been a connectionwith taxes,for theJustinianic compilers the main featureof thecolonate was servicesto be rendered,within thecontext of agriculturalexploitation. If thecompilers had considereda connectionwith taxesas themain characteristic,they would presumably have placed thosetitles in Book iO,where inCf IO.I-30 the taxesare dealtwith. Regarding theagricolae censiti- the rubricimplies that thereare normal agricolae (farmers)as well and thatwe are dealinghere with a particulargroup of farmers,called coloni,who have been censused- thesequence of thetitles is systematic.It startswith a general title(CJ II.48), thenCJ II.49 with a singleconstitution on theabolition of the capitatiohumana forthe urban plebs in theEast, Cf II.50 with thesubject of litigationby coloni censitiagainst theirmasters (this is theconsequence of the rulesas collected inCf II.48), and finallythree titles each with a singleconstitution, on thecoloni inPalestine, Thrace, and Illyricum(which concern the agricolae censitiof certainprovinces). The placementof CJ II.49 in themiddle of theconstitutions on coloni is a sign thatthis tax was relevantto thegroup of agricolae censiti,a connectionconfirmed by CJ II.48.I0 in which the ratesof the capitatio 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).11There were also coloni censitiwho were considered 'free'and differentfrom the coloni adscripticii(c. I9). We shall use, in accordancewith the title'srubric, the term colonus forboth kindsof coloni censiti. Apart fromthese titles, there are a numberof other textsin theCode orNovels inwhich coloni or adscripticii(?vcutypawpoi) are mentioned.'2 In some cases thisconcerns coloni in thesense of independenttenants. They figurein Cf 4.44.65 and otherplaces and ifand in as faras coloni adscripticiior liberiwere tenants,those texts also apply to these.13In 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 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).

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cases theadscripticiate has been interpolated,which shows how textswere adapted for contemporaryuse.14 Furthermore we meet tapotKot,meaning accordingto Zepos coloni, tied to land;but it ispossible thatwe are dealinghere with inquilinior casarii (who could also be tied to an estate).15

III THE TEXTS ON THE COLONATE

Within C II.48 four textsdate fromthe years A.D. 529-534, all issuedby Justinian:Cj II.48.20-4. Consequentlywe may assume thatthey are coherentand accuratelyrepresent thesituation of A.D. 534 incontemporary idiom. They deal with thefollowing questions: when can the owner of an estate (dominus terrae)claim somebody as his colonus or adscripticius?And connectedto this:when is somebodyconsidered a colonus or adscript icius?What can an estateowner claim fromhis colonus or adscripticius?Does thestatus of colonus or adscripticiuspass on tooffspring? And thereare collateralproblems imagin able. Ifcoloni are attached to an estate,what ifthe estate isdivided? If somebody has two estates,may he transfercoloni fromone to theother? What ifa colonus runsaway and entersthe adscripticiate with anotherestate owner, or works as an independenttenant or day-labourer?Or runsto a town,or seeks immunityin theimperial services or theChurch? What about thepayment of thetax incase of flight?What ifa colonus or colona (we have to thinkof thedaughter of a colonus)marries thecolona or colonus of another?Can coloni litigateagainst theirestate owners? I take thesefour texts as thepoint of departure,but will referto other textsof theCode and Justinian'sNovels where appropriate in order to consolidate theexamination, and thendeal with theremaining texts on coloni.The other textsin CJ II.48 relatingto coloni were all issuedbefore Justinian. Theoretically it ispossible thattheir original meaning and settingdiffered from theirmeaning and settingin Justinian'stimes. Because Justinian orderedhis compilersto leaveout theobsolete and allowed themto change and interpolate thetexts, we may, as faras theirapplication inA.D. 534 iSconcerned, leave any potentially differentoriginal meaning aside and interpretthem in accordancewith what we know fromCf II.48.20-4 and otherJustinianic texts.

IV THE CONDICIO ADSCRIPTICIA AND THE ORIGO

An estate owner could claim somebodywas his colonus adscripticius,scil. with the intentionthat this person would renderhim services(see below, Section ix), ifhe provided proofof the latter'sstatus, namely by 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. CJ 1.2.24, Nov. 7 pr., Nov. See P. J. Zepos, '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, in which 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.

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census adscriptio,the enrolment into thepublic tax registerof the land,17evidently the enrolmentof himselfor his fatheror furtherascendant, or a document towhich a later, voluntarily-madeacknowledgement of his statusby thecolonus was added (as in thecase of an adscripticiusby birth); just a contract,for example, was not enough."8The census will have been theestate owner's census,scil. thatof theestate towhich theadscripticius was said to be attached,cf. CfJJ.7*7.19 How preciselythe adscripticius was registeredwe do not know; perhaps itwas done afterthe example of the slaves on an estate,under a special titulus,since thecoloni arementioned afterthese in theexposition of thecensus declaration (Dig. 50.I4.4.5 and 8) and theirflight from the estate iscompared to theflight of slaves (CJ II.48.23 pr.; see also below, Section x).20These requirementsshould prevent freepersons frombeing groundlessly drawn into theadscripticiate (CJ II.48.22 pr.-z). If during such a claim procedure a settlementwas reached, it could not be annulled (CJ 2.4.43). The referenceto a contractimplies that by Justinian'stime the status of adscript iciuswas not derived fromone's fatherin everycase, but that it could stillhave been enteredex novo. It also impliesthat the adscripticiate was not the logicalconsequence of a mere labouror other contract.The originof all cases of theadscripticiate21 (and thus oftenof the 'free'colonate, see below, Sectionv) must consequentlyhave been a separate agreementwhose conditionscould not be changed lateron (CJ II.48.z3.3). There is one papyruswith referenceto such an agreement(it at leastsuggests it; see n. I7). Childrenof coloni scil.adscripticii could be claimedas well. If theyraised the exception of limitationof thirtyor fortyyears against the claim, itwould be of no avail (CJ II.48.zZ.3-5). This general limitationof prescriptionapplied both inprivate and public law (e.g.,CJ 7.39.4I), with theexception inpublic law regardingthe summons of people forpublic dutieson basis of theirbirth status.22 As forthe children of an adscripticius,the basis of thesummons was not a contract,but theirorigo (on thebasis of theirbirth; see below). Theymight have been away fromthe estate fora long timeand could have pur suedoccupations other thanfarming, as CJ II.48.22.3 says.Their obligationswould have been thoseconnected to thecondicio adscripticia(or, as it is said in thepapyri, the -n5X'9 &vacutypawpi;see Section Ix).We see indeedin thepapyri adscripticii with variousoccupa tions;when theyare named ?vaioypcupoiycopyo, itmerely denotes theirstatus, while 7rop670;does not necessarilymean theyare farmers.23Likewise we 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 (), 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 . 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 ; 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(? 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 ? which see Section xn a striking example of this is P.Oxy. LXX.4794, 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.

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This birthstatus, the origo, derived from the timethat the Mediterranean world was a patchworkof independentand autonomouscities, which could summontheir citizens for public tasks.According to rulesof internationalprivate law (iusgentium), it determined one's home town (patria) and consequentlyone's public and private law system.It was retainedin theRoman Empire, not so much forcitizenship as such (almosteverybody beingafter A.D. ziz also a Roman citizen),but forthe public tasksnow calledmunera and honores.The origopassed on in thesame way as ithad done previously:in legitimatemar riages fromfather onto his children(CJ 8.47.7), otherwisefrom mother onto her child ren.25Likewise freedmentook theirmanumitter's origo (cf.CJ 7.I4.I).26 A wife kept her own origo or else the applicationof theSC Claudianum (see below) would have been unnecessary.27 The situationis, however, more complicated.The origowas establishedon thebasis of one's descent.Theoretically every citizen of a towncould be summonedfor all public obli gationsconnected with theorigo, but inpractice thiswas not thecase. For example,with decurionsonly thosewho had a decurionas fatheror sometimesgrandfather were eligible, and inaddition theyhad todispose of a certainamount of wealth inorder toperform their duties.Only ifnot enough new candidateswere found in thisway were homines novi chosen (whoseexistimatio, reputation, had to be good also). This eligibilitymight further entail restrictionsas regards,for example, other functions.It is thisensemble of origo, lia bility,eligibility, duties and restrictionswhich definedthe condicio curialis.28It might seem as if thecondicio was 'inherited'but that is not thecase. Birthwas thecriterion for the origo and theorigo was one of thecriteria for the impositionof thecondicio (in thiscase by thehome town). Itwas an importantcriterion since itdefined the townwhich might claim and as such itwas fundamentalto the system,but itdid not have to be theonly criterion.Condicio may point to the liabilityas such,but also to thestatus in its totality. It is the samewith thecondicio adscripticia.Here also thedescent defined the origo, which again is theessential criterion for impositionof thecondicio. Further requirements were apparentlynot set,but duties and restrictionswere present.29Yet was theorigo a town?In view of itbeing thedominus terraesummoning the adscripticius, and inview of thefact, as we saw above, thatthe adscripticiate was to be provedby theadscriptio census 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 became communis patria, which was own implies that it the patria next to one's 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. 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.

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an estate (terra,possessio). Thus theestate owner could summona colonus toperform his duties in thesame way as a towncould summonits citizens and curials to performpublic duties (e.g.,CJ IO.3z.z, 5);what duties theorigo of thecoloni adscripticiiand othercoloni impliedwe shalldiscuss below inSection ix.Moreover, theuse of thecensus as origomade itpossible forthe person of theestate owner tochange, e.g. by sale,with thecolonus being obliged to thenew owner. If theadscripticiate was enteredby agreement,its formalization by theadscriptio released it fromthe constraints of thelaw of obligationswhich would not recognizea change ina contractualrelationship. Thus itcould be said thatthe coloni were alienable togetherwith theestate (CJ II.48.2 pr., zi.i) and in thissense theyresembled slaveswho were attachedas instrumentumto a plot of land. A townas origomust be distinguishedfrom a townas centrepointin the taxationsys tem.On thebasis of thecensus declarations the expenses of thestate were proportionally apportionedto provinces, again to towns,and, in theend, to the individuallandholdings, and subsequentlylevied accordingly.30 If somebodyowned land inmore thanone town's territory,he would have to declare each estate in the townwhere it lay (Dig. 50.I5.4.2), and pay thetax likewisein more thanone place; his origohad nothingto do with this.31It is thereforewrong to assume thatthe enrolment in a censusdeclaration of an estatemade a colonus originariusresponsible for the taxes imposedon this land: theowner was res ponsible and did not become originariusby this.32 Therewas neverthelessa difference:an estatedid not equal a town,notwithstanding the use of origo forboth. Normally we would expect thatin thecase of a marriagebetween a man, subjected to the adscripticiate,and a woman, not subjected to this or another condicio but citizenof a town, thechildren would follow theorigo of the father.(Such unsubjectedpersons are usuallycalled ingenui,i.e., freeof obligations; likewisein the law of persons ingenuiwere not subjectedto obligations as were libertiregarding their manu missors.) But we know that theSC Claudianum was applied to theseunions when the husbandwas an adscripticiusand thewoman was not.Originally thesenatusconsultum made thechildren born out of a union betweena slave and a freewoman slave insteadof theirbeing freeborn.By thisit reversedthe above-mentioned ius gentium rule on thecivil status.Here theapplication made childrenof such a marriage follow the statusof their fatherinstead of thatof theirmother and theybecame adscripticiiresp. adscripticiae (the latterhave been attested).3This means that theorigines of fatherand mother were 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 sua lo legava la 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 in A, 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.

This content downloaded from 194.95.59.195 on Tue, 23 Jul 2013 07:31:08 AM All use subject to JSTOR Terms and Conditions iz8 A. J. B. SIRKS consideredequal, i.e., theorigo of an adscripticius,the estate, was not equal to thatof a town because the application of the senatusconsultumimplied thatwithout it the ius gentiumwould have applied: thechildren would not have been subjectedto the statusof theirfather. That would mean a loss for theestate owner, and thatmust thereforehave been the reason that theSC Claudianum was applied analogously.34It was for thissame reason thatJustinian, when he abolished theSC Claudianum inA.D. 53I-534 (CJ7.24.I; Nov. 22.I7), at once introducedthe rule that theestate owner of theadscripticius could forciblytake his 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 childrenborn out of amarriage between an adscripticiusand a woman freefrom the colonate would be 'free'coloni (see below, Section v), so that theywould have to stayon theestate of 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 timeto work elsewhere,he could go, live thereand have his origo there(Nov. i6z.2).36For an adscripticiasuch a measurewas, of course,unnecessary. But thenature of theorigo posed no problemwith marriages between coloni37of different estates: theywere so to speakon thesame leveland here thepaternal origo and in thisway thiscondicio was decisive for theoffspring (CJ II.48.I3 pr.).38 This application of the origo meant that, as stated above, the designationcolonus (adscripticius)no longernecessarily meant thatthis person was a farmerand we do indeed finda varietyof occupations- steward,scribe, guard in the legal texts;functions in the imperialservice; in theChurch.39 His duties,however, could involvework on an estate,but it isnot impossiblethat an adscripticiuswith fundscould have contractedsomebody else toperform this duty forhim (cf.CJ I.3.I6). The applicationof thesenatusconsultum Claudianum meant no change in thepersonal law statusof theadscripticii, but remarkablyenough themeasure takenafter its abolition inA.D. 53I/534did. It implieda potentialmarriage restriction,which was remediedin A.D. 539 by Justinian'sNovel (Nov. i6z.z). That Novel restoredthe personal 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 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 same the 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 : 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.

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V CHANGE OF STATUS AND THE FREE COLONATE

Although thereis no texton the subject,release fromthe adscripticiate must have been possible by a unilateralact of the estate owner, because if an adscripticiuswanted to become a priestor monk, his estateowner had to approve of this (CJ I.3.36.pr.).Hence the latter'sconsent was requiredand apparentlysufficient. But ifthis did not happen,his statemight be mitigated, be it only in the long term.CJ II.48.z3.I says that if an adscripticiushas performedhis duties forthirty years, he will be 'free'(the meaning of this we will discuss below), but cannotmigrate fromthe estate. CJ II.48.23.1 attributesthis statuschange to a constitutionof (A.D.49I-518), reproducedin Cf 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.41 Zepos and later Mirkovic and Carrie interpretthis textdifferently: they assume that free,unindebted coloni who had spent thirtyyears on an estatewere made liberiadscripticii, viz. on account of CJ II.48.I9.42Mirkovic uses theword adscripticiusfor both kinds of coloni and shemeans thatsuch coloni became 'free'coloni. The otherkind of coloni (forwhom we reservedthe name of adscripticii)came intoexistence either because theyfell into rental arrearsor because they,as originarii,were born on theestate and had inheriteddebt and dependence.43In thisview all farmersbecame coloni censitiof one or anotherkind and the colonatewould have been a universalphenomenon. But objectionscan be raisedagainst it. In Justinian'slaw thereis no questionof rentalarrears as a cause of thecolonate. And why did farmersnot migrate after,for example, twenty-fiveyears to escape thisconse quence? It is clear thatunder Justinian adscripticiate and tenancywere not twocommuta tiveconcepts. To describe adscripticiias 'registeredtenants' is consequentlywrong for Justinian'sreign.44 CJ II.48.23.i does not speak of freetenants on an estate,but ofmen 'heldin thecondicio coloniaria forthirty years' ('hominesqui per trigintaannos coloniaria detentisunt condicione'). Since Anastasius and Justinianwanted to give thema better condiciocoloniaria, itcould only concerna transitionfrom the adscripticiate to the 'free' colonate and so it isunderstood in the text ('sancimus liberoscolonorum esse quidem in perpetuumsecundum praefatam legem liberos et nulla deteriorecondicione praegravari'). The legalquestion dealt with in the text iswhether such 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

This content downloaded from 194.95.59.195 on Tue, 23 Jul 2013 07:31:08 AM All use subject to JSTOR Terms and Conditions 130 A. J. B. SIRKS question ifit had notmeant betterconditions. This point isnot seenby theaforementioned authors,nor byCarrie, who uses CJ I1.48.19 to interpretthe termcondicio coloniaria in CJ I I 48.23 .I .45 Perhaps thereason forthis benefice was tomake flightless attractive, because a fugitive would permanentlylive under thethreat of being recalledas adscripticius,whereas now he could be sure thatafter thirty years he would quit thecontrol and authority(potestas) of theestate owner, and his childrenwould be freeof thisalso. Ifhis childrenwere away for thirtyyears, theywould not benefitfrom a limitationin itself,but if theirfather became 'free'in thisway theywould followhis new status as well (CJ II.48.z3.I). We must be realistic:not many will have profitedfrom this unless theywere enrolledor summonedat an earlyage. Thirtyyears was a long timein antiquity. Apart fromthis source of what we shall call, in accordancewith the texts,the 'free' colonate,which must have caused a distributionof 'free'coloni over thoseprovinces where theadscripticiate existed, therewere some provinces inwhich the 'free'colonate had been imposedgenerally on adscripticii:Palestine, Thrace, and Illyricum(CJ ii.5i, 52 and 53).46These threeconstitutions functioned in theirJustinianic context as the legal basis forrecalling these coloni, ifthey had fled,from their harbourers and definedthe con ditionsof the 'free'colonate foreach region.Those who admit fugitivesare, 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 Justinianforbade money-lenders to take the land from theirfarmer-debtors,48 it could concern independentfarmers, but also thesecoloni, now 'free',or adscripticiiwith theirown land.49 A third source of the 'free' colonate was afterA.D. 539 themarriages between adscripticiiand ingenuae,which we discussedabove, inSection iv. Nothing is said about the requirementsfor theclaiming of a 'free'colonus. This was possible (CJ II.48.23.5). Presumablyit happened in thesame way as with 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 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 secunda.

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VI SALE OF THE ESTATE AND REALLOCATION OF COLONI

Regarding the tie to theestate, itwas forbidden,if an estatewas transferred,to separate thecoloni attached to itand tie themto anotherestate, even ifthe buyer agreed to this(Cj II.48.2). Likewise coloni could not be alienated separatelyfrom their estate. An evident trickto circumventthis, namely by sellingonly a verysmall part of theestate while trans ferringwith itall coloni on theestate, was suppressedby theprescription that in case of a divisionof theestate, thecoloni should be distributedproportionally over theparts (Cj II.48.7 pr.-z). The trickpresumably consisted of registeringat themoment of divisionall thecoloni in thecensus of thesmall part, which was thensold and transferredwith them attached to it. If itnevertheless happened, theowner of theremaining estate now devoid of coloni could reclaimthem, while thenew possessor could not raise limitationof pre scriptionagainst him (CJ II.48.7.3). The questionarises whether the owner of twoestates, each ofwhich had coloni attachedto it,could transfersome coloni 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 the estate from which coloni were taken could claim the offspringof the transferredcoloni (CJ II.48.13.I). This tallieswith theconcept behind CJ II.48.2.I, which says thatwhoever thinksthat coloni are usefulon a parcel of land shouldkeep themthere, and it is inaccord ancewith theprinciple of theorigo.

VII TAXES

The registrationin thecensus had as consequence,or as condition,that the estate owners had to acknowledge,either by themselvesin person or throughtheir stewards (procura tores;which will oftenhave been thecase withmagnates), the liabilityfor the tax their coloni originales,once havingbeen censiti,had to pay (CJ II.48.4 pr.).According toDig. 50.I4.4.8, theestate owner would be liablefor their taxes even ifhe had not done so.50This taxwas thecapitatio humana, as followsfrom (a) the tarifffor this in CJ II.48.I0, (b) the positioningof CJ II.49.I with theexemption of theurban plebs in theEast and someprov inces inAsia Minor in themiddle of thetitles on coloni, and (c)CJ II.52-3.51The papyri also indicatethis (see below, Section IXat n. 65 and SectionXII aftern. 85). But ifsuch a

50 It would 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 it demonstrates that the designation tributarii must also refer to these coloni. It confirms that it was 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.

This content downloaded from 194.95.59.195 on Tue, 23 Jul 2013 07:31:08 AM All use subject to JSTOR Terms and Conditions 132 A. J. B. SIRKS colonus owned landhimself, it had to be registeredin his own name in thecensus and his estateowner was not liable forthe payment of the taxon thatland (the tributum,due by theowner of land): thecolonus had to acknowledge thisduty himself(Cj II.48.4.I).52 Nov.Just. 128.14 of A.D. 545 repeatsthis, adding thatit isdifferent if his estateowner has obligedhimself (as surety)for that plot of landof his colonus.CJ II.48.4 pr.makes itclear thatthe estate owner's liabilityfor the poll taxof his adscripticiuswas based on an accept ance of thison his part (recepta),by which he would become theonly liable debtor as regardedthe collectors (but theadscripticius remained the person upon whom thisliability and itsamount was based). Conversely,see CJ I.3.i6, theadscripticius would have to ack nowledge again thecapitatio when released fromthe adscripticiate. The consequenceof thiswas (a) thatthe adscripticius did not have toworry about state tax collectors,but (b) that if theestate owner had paid, theadscripticius now owed him thisamount and the estate owner could recover this.53This is confirmedby CJ II.48.zo.3a and by P.Oxy. XXVII.z478 and LXIII.4398, where the vcvanoypcpotpromise to renderthe tax to their estateowner. The fact that theestate owner functionedas guarantorfor the taxesof his registered coloni explains thedisposition of Cj II.48.8 pr., thatany harbourer of fugitiveswho uses themas if theywere his own coloniwithout paying thema loan,must pay the taxesdue by them:the rationale evidently was thatwhoever profitsfrom them also must carrythe burden.The question,of course, iswhether thefirst estate owner had neverthelessto pay the tax in case of flight.We have to infer that as soon as the coloni had fled, he had no longerto do so. This makes sense.The poll taxwas leviedon persons: ifthey were gone, therewas no longera subjectto levythe tax fromand bydefault of theprimary obligation thatof thesurety would fallaway.54 It also followsfrom CJ II.48.4 pr. thatcensitus refers to theregistration in thecensus, thusthat a colonus censitus is thesame as a colonus originaliswho has been enrolled. It would be thesame procedureas with public obligationssuch as themunera, where liable persons are summonedand thenhave to acknowledge theirduties formally.As such the word originalis(or originarius) may refer,in Justinian's times, to both categoriesof coloni (in thatthey are obligedon thegrounds of theirorigo, which oftenwill have been thecase) but here theadscripticii are meant because theother category of coloni had always topay the taxes themselves.Immunities, especially given with regardto thecapitatio and iugatio (whichcould also profitcoloni), were unacceptable if theyhad beenmade without proof (i.e.,most likely,through bribery; CJ II.48.9). Their tie to theestate ensured the coloni at leastof one advantage,namely that they were not liable forthe unpaid fiscaldebts of other people (CJ II.48.I5, repeatedin Nov.Just. I08.I4 of A.D. 545).Normally thosewith the same origowould be subjected to thissecondary liability, inherent in the fiscalsystem. They, however,had as theirorigo only theestate (CJ II.50.I). Their estate ownerwas liable forthis estate and forthe other adscripticii (this argues against the idea of theestate owner as public tax collector;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.

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VIII EXPLOITATION OF ESTATE LAND, COLONI-TENANTS, OTHER TENANTS AND FARM LABOURERS

If litigationwere initiatedabout the identityof theestate owner, thecoloni of theestate shouldnot be able to use thisopportunity to escape theirduty to pay theirdues, and so Justinianregulated this (CJ II.48.20 pr.-5). He did thisnot somuch out of concernover what was due to theestate owner as over thepayment of the taxes (publicae functiones). Regarding the first,if the revenues(reditus) were paid ingold, thecoloni had to provide suretyfor the revenuesor else thegovernor would claim theseand deposit the sumsat a suitabledepository. If the revenueswere paid inkind, thegovernor would sell themand likewisedeposit theresulting sum forafter the trial. As to the taxes,Justinian again distinguishedtwo situations.Either thecoloni used to pay thesethemselves, or itwas custom thatthey turned over a lumpsum (totasumma) to theestate owner, who thentook the sum due for taxesout 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 throughthe estate owner, theexisting practice should continue till theend of the law suit. In theother case, however, if thecoloni had alreadyappointed a suretyfor what theyowed to theestate owner, thesame suretyalso had topay theowner thesum (scil.when itwas time)due as tax,and the latterhad to turnthis over to the tax collector.If thecoloni did not give surety,the entire revenues were setaside, or sold and set aside, and thegovernor would takeout the sum due as taxes and give theowner a receiptfor this (CJ II.48.23.3-4). What were these taxes?They are called publicae or tributariaefunctiones.55 Itwill in any case have concernedthe capitatio bumana, thepoll tax,of thecoloni, since it is this taxwhich is dealtwith in other texts.With adscripticiithis was regularlypaid by their estateowners but it remainedtheir tax (see above, SectionVII). The firstsituation men tionedabove would thenconcern 'free'coloni (ofwhom it is said thatthey pay taxes them selves,i.e., as we see here, in theirown person since theywere registeredindependently for this).We do not see any specialmention of the land tax.Since the litigationwas about the questionof whether the purported estate owner was indeedthe rightful estate owner, who was liable for the land tax, itmust also have been a question as towhether the land tax would be paid. Thereforethe textmust have dealtwith thisas well. In thesecond above mentionedsituation it was usual thatthe coloni, i.e.,adscripticii, turned over a lumpsum out of therevenues of the land theyworked on, inmoney or inkind. Although thiscould concernshare-cropping, it isnot likelyas we shall see (see below, SectionXII). It certainly was not a regulartenancy. The formof exploitationthrough coloni (ofboth kinds) ian dealtwith heremust apparentlyhave been one inwhich theestate owner put land in thecharge of people forthe purpose of cultivationand expected inprinciple a lumpsum tobe turnedover tohim, in thecase of adscripticiicomprising in any case of thetax he had to pay forthem. It presumablyalso includedthe amount of the land taxdue forthe plot, but thisof coursedid notmake thefarmers responsible for the land tax. Ifthis exploitation mode concerned 'free'coloni, thesepeople would certainlyhave likedto deduct theirpoll tax fromthe lumpsum. In thecase of adscripticiithe estate owner would pay theirpoll tax.We do not knowwhether he also leftthe coloni a part of therevenues as recompense but it ispossible. Itmay also be thathe creditedtheir accounts inhis book-keeping. Nothing is said inCJ II.48 about tenantsand agriculturalworkers not tiedto an estate, but thatis not what thetitle is about and thusnot tobe expected.They figurein CJ 4.44.65

55 A definitive answer to this question awaits a new treatment of taxes and taxation in .

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and other texts.56If coloni adscripticiior liberiwere tenants(we know of one case,P.Oxy. LXVII.46I5), thosetexts would also apply to them,because we do not see inCJ II.48.20 thatfor adscripticii and 'free'coloni a particularregime regarding the contract of tenancy (locatio conductio)existed. This constitutiononly provided a special arrangementfor the paymentof therent in a special case.

IX OBLIGATIONS IN THE ADSCRIPTICIATE

What were theobligations of an adscripticius?He had to performtasks on the estate (ruraliaobsequia, CJ I.3.i6), till the land,or performthe work of a colonus, he had to remainon theestate (CJ II.48.I5), he disposed of assetscalled peculium57and he, and his children,stood under thepotestas of theestate owner (CJ II.48.-2.I); hewas prohibited fromlitigating against his estateowner (CJ II.50.2.4, see below for theexception to this rule).Such a prohibitionindicates a subordinatesocial position as between freedmanand manumissor.58If an adscripticiusbecame a priest inhis own hamlet (vicus) (forwhich his estateowner had to releasehim fromthe adscripticiate, see Section v), his estateowner could require thathe acknowledged the liabilityfor thecapitatio, releasingby thathis estateowner fromthis obligation, and thathe would have his estateduties performel by a substituteof his own choice (CJ I.3.i6). A 'free'colonus had as his only obligation to remainon theestate and tillthe land (CJ II.48.I5 and 23.1),which must have impliedthat he had to continueto till itas tenantor as farmlabourer and thathe had topay his taxes, i.e. thecapitatio bumana. From thisit follows,as stated,that an adscripticiusdid not have topay thistax directly, which again impliesthat his estateowner did so (seeabove, Section vii). If theperson who harboured theadscripticius had theuse of his labour, thisperson was liable for thesetaxes.59 Some evidence regardingthe duties is furtherprovided by thepapyri. In a numberof papyrimention ismade of evcur6ypctpoiycwpyoi, i.e. coloni adscripticii.Fikhman has thoroughlyanalysed them.60These papyricover theperiod fromA.D. 44I (or, in any case, 469) tillA.D. 6i6,61thus roughly the period coveredby Justinian'scodification and legisla tion.Fikhman indeedmakes comparisonswith of Justinian'sreign. He observes that v?vanr6pU(posis found not onlywith farmers(y0cop76q), but alsowith otherprofessions or

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 CJ 11.48.23.3: 'agros col?re, aliquid colonarii operis celebrare, agriculturam peragere' for the adscripticii, '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 in Russian, 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.

This content downloaded from 194.95.59.195 on Tue, 23 Jul 2013 07:31:08 AM All use subject to JSTOR Terms and Conditions THE COLONATE IN JUSTINIAN S REIGN I35 occupations likeguard and gardener.62This tallieswith our observation thata colonus might be tied throughhis origo and not be a farmer.A numberof papyri are about guaranteesgiven fora fugitive vacouypa(poq,usually imprisoned;others are receiptsfor receivedparts forirrigation machines.63 The suretymust guaranteethat the gvanoypa(po; will answer for all that pertains to his person or ratherhis status as &vwoypacuo;: acrOKplVOgF1VOVgig aLavTa Ta optivTU TO a 2t pO[ojontov lTOttip TOV ?avoypapou 64 thatt isremiasonfou e TUXlV,, that is, as formulated extensively in P.Oxy. L.I35, that he will remain continu ously on the estate (ll6ajdi aclUTOVKaTakCJJWaL TO a6TO KT1fLa pts1jTrjV gEO[[E]]icvcTaOalt gig;K-cpov Tunov) with his childrenand wife, cattle and utensils,that he will be answerable forall thatpertains to his personor his statusas 9vcu6ypc~po;, and thathe will not go to anotherplace; oftenalso, thathe will pay the tax ((popop)on himself(it must have been thecapitatio; not a rent:why shoulda tenantflee if he could terminatethe contract within a year?);65that in thecase of a second flightthe surety will deliverhim; or else thesurety will pay a fineor will do his duties.66What pertains to his statusmust have been the serviceswhich his estateowner could requirein connection with agriculture:to guard the land (&ypo(ptXaR),to be fruitgrower on the estate orchard (cotcuapitr7,K1pLoUpo().67 Perhaps seasonal jobs such as harvestingwere required,but we do not know; thereare otherpossibilities. In thepapyri concerning the irrigationmachines it is usually said that a certain irrigationwork is 'in the charge' of the adscripticius.68In the same way adscripticiicould have been chargedwith farmingby putting a plot of land in theircharge, while in returnthey would have to rendersome or all revenues(with which thetax forthe land could be paid also); theymay also have been paid by credits in the estate book keeping.69Such transfersinto 'thecharge of' an adscripticiuswho thenhad to exploit it would agreewith CJ II.48.20, which dealswith thedues of coloni.There is a group in this textwhich turnsover all revenuesto theestate owner (see above, Sectionvii). Could itbe in thecase of the irrigationworks that theestate owner used theadscripticiate to charge

62 Fikhman, op. cit. (n. 60), 194: P.Lond. III.778 (aypoqr?taxC, guard), P.Oxy. XXVII.2478 (7t?)fiapixr|?, fruit grower). 63 J.-M. Carri?, 'Figures du "colonat" dans les papyrus d'Egypte: lexique, contextes', in XVII Congr. intern, di 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 ? ? in interpreting ?r|nocjia in PSI 1.62 as taxes and not as rent, but itmay well be see CJ 11.48.20 that Petrus was expected 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. 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

This content downloaded from 194.95.59.195 on Tue, 23 Jul 2013 07:31:08 AM All use subject to JSTOR Terms and Conditions 136 A. J. B. SIRKS capable individualswith themanagement of thisimportant agricultural machinery? Since twomanagers arewomen, it isnot likelythat theywould do heavywork, but theycould have been good managers.The advantage for theestate owner would be that thesesub ordinatescould neverquit theirjob andwould thusbe more underhis control,as would be theirassets, like the freedmenof theearly . Cj ii.68.z orders the recallof imperialcoloni who are fitto manage (ratiociniagerere) or to farm.Apparently there was concernto use the talentsof coloni. Itwas thehabit of theApiones to requiresureties with all kindsof contracts.70Fikhman is rightin observing that the surety reflects the duties of theadscripticius, but thequestion is: are thesethe duties of an adscripticiuswho entereda contractand thecensus, or of one who was of that status on the grounds of his origo?Many suretieswe have are for adscripticiiwho are inprison because theyfled. We see that in thesecases theenumerated duties reflectthe legaldescription of thestatus: to do what pertainsto theirstatus, which includedwork on the landor toperform other agricultural services (CJ II.48.2z.3: 'neque agrumcoluit neque aliquid colonarii operis celebravit').Thus it seemsbetter to assume thatthe surety reflects the previous or simultaneousacknowledgement (confessio, compar ablewith theagnoscere inadministrative law ofmunera) by theadscripticius of his public obligations.Furthermore, the obligation tokeep his goods on theestate fittedthe prohibi tion against alienatingfrom his peculiumwithout the consentof the estate owner (Cj II.50.2.3; seeSection XII).71 At themoment of enteringthe adscripticiate, it may have been different.The agreementbetween estate owner and prospectiveadscripticius must have consistedof severalelements. For thefarmer these would have been to provide labour, to remainon theestate with all and everything(which resembles the paramone agreementor clause),72to pay thepoll tax to theestate owner- perhaps thesewere simplycomprised in thephrase: theduties of an adscripticius.For theestate owner thesewould have been to pay thepoll tax of thefarmer (and his family).There may 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 harvestingif thatcould also be done at a more opportunemoment, and CJ II.48.5 remindsthe estate owners that theymay not demandmoney payments fromthe farmers but must acceptpayments in kind, unless thisis thecustom of theestate (thiscould happen if a new owner took over). CJ II.50.1 prescribesthe procedure by which colonimay contestincreased claims, as does CJ II.50.z.4 foradscripticii.

X FLIGHT

The obligationto remainon theestate, which layon everycolonus who had acknowledged his status,implied that any unauthorized absence amounted to a flight.It comes as no sur prise, therefore,that flight was a permanentconcern for the estate owners and . Coloni, particularlyadscripticii, would seem, consideringthe legal textsand papyri, to have been prone to flight,presumably because of theharsh conditions of thefarming life. This is to be distinguishedfrom absence as such,which, as longas a person liable for the colonate by origo had not been formallysummoned by his estate owner to performhis duties,was possible. If a colonus had fled,his estate owner could coerce him to return, with the assistanceof theprovincial administration (CJ II.48.6, on adscripticii).More over, itwas forbiddento harbour fugitivecoloni (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.

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thecolonus (to be) had availed himselfof a positionwhich provided immunityfrom obli gations,based on theorigo (likecurial duties). The imperialservices, the Church and the monasteriesoffered such positions,and in order not to harm theestate owners, itwas forbiddento accept coloniwithout theirestate owner's consent(CJ II.48.18, I.3.36 pr., z) or at all (CJ I2.43.I, I2.54.3).When itnevertheless happened, the immunitywas ineffec tive (CJ II.48.II, mentioningoriginarii, i.e., persons subjected on accountof theirorigo). This indicatesagain thepublic law sideof thecolonate. But as we saw previously,at thebasis of all theseregulations lay theconcern and need forsufficient labour on the land.There were always estateowners inneed of hands.Thus itappears thatcoloni who had fledwere working on the land of otherpeople. It could be thatestate owners knew theydealt with coloni and used themto theirprofit. They would accomplishthis by having themtill land and turnover itsproducts to them,or by having themperform other labourand not payingthem any wages. The textimplies that they used theirknowledge to blackmail themwith theirfugitive status. In thatcase theyhad topay the taxeswhich were otherwiselost (CJ II.48.8 pr.). However, itcould also be that the estate owners did not know of the flightand that the coloni deceivinglyoffered their servicesas men, freeof thecolonate bond (ingenuiis the termin thesources for those free fromsuch public obligations),as farmlabourers or as tenantsor share-croppers.In that case the taxes should be claimed directlyfrom the coloni themselvessince, as the texts state, itconcerns a contractusprivatus. And so, as theconstitution says, all fugitiveswill be recalledtogether with theiremolumenta tributaria ('fiscal benefits', 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 theserules concern 'free'coloni, CJ II.48.8.I would state theobvious, since thesepeople were alreadydirectly responsible for theirpoll tax; but theobvious is indeedsometimes stated.Yet the referenceto a contractusprivatus implies that the text refersto the adscripticii.It followsthat in case of flightthe obligation of theestate owner topay forhis adscripticiistopped (as regardsfuture taxes). Thus ifadscripticii fled and were used by anotherestate owner who did not pay thema loan,neither from the original estate owner nor fromthe adscripticii (or coloni) themselvescould thepoll taxbe reclaimed.Hence the impositionof the liabilityfor this on themala fideestate owner. In thecase of the 'private contract'there was no reasonwhy itshould not be claimed fromthe fugitives themselves. It is obvious that thesemeasures did notmake theharbouring and use of coloniwho had fledless attractive,74 while itburdened the deprived estate owners with thesearch and reclamation.Flight was evidentlya problem,as thenumber of suretiesproves (seeSection Ix). A fineof iz pounds for the fiscand theobligation to rendernot only theclaimed colonusbut also anotherfarmer and hisprice (probablythe additional value of landby the appendageof an adscripticius,such as of a slave as instrumentum,towork on it),should have deterredpotential harbourers (CJ II.48.I.z2). A colonamight fleeto a townor anotherplace andmarry an ingenuus(i.e., someone not subjectedto thecondicio adscripticia). If she was found,she could be recalledwith her offspring(CJ II.48.I6). That heroffspring could be claimed as well was due to inequality as regardsthe origo of townand estate (seeabove, atCJ II.48.24). Otherwise thechildren would have followedthe origo of theirfather and not have been subjectedto thecondicio coloniaria.The case of an adscripticiusmarrying an ingenuawas alreadydealt with above. If an estateowner possessed ingood faithcoloni who were claimed by somebodyelse (as in thecase before),and thecoloni fledto avoid theoutcome of the litigation,it was the

73 By this ismeant the system we know from the Heroninos 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.

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estateowner who could claim themback and not theother person; having returned to him, 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'condicio had to remainon theestate or 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 the conditionsoriginally set for theirancestors (CJ II.48.23.3). Since theywere obliged towardstheir estate owner to performthe serviceof agriculture,they were in thisrespect subjected to his 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.). Under what 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 theirestate owner could release them.

XII THE DIFFERENCE BETWEEN THE TWO CONDICIONES: THE PECULIUM

Cf 11.48.23.I proves thatthere were twokinds of colonate inA.D. 534, as does theplural in CJ 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 differencesevidently important for 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 JciKOUXWLtoi5 6crnrTrnv tV1K?in Cf II.48.I9 isnot clear.Two other textsstate thatthe 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 is made 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 ...'

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litigateagainst theirestate owners: CJ ii.50.2 pr. describesthe difference between the two categoriesof coloni in a veryelliptic way, but itcomes down to this.The coloni censibus dumtaxatadscripti ('merelyregistered in thecensus'), i.e. the 'free'coloni, are not sub jected to theirestate owners,whereas the other category,that of the adscripticii,are obliged (obnoxii)because of theyearly taxes and theobligations of theircondicio, which makes themsubjected as ifin a certainkind of slavery.For thatreason theirfaculty to sue theirestate owners is very limited:then such 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 the latter sense it isoften used in thecontext of public obligations(munera)," as here,but thenature of theseobligations could have had theeffect that the first meaning crept in.Furthermore, thetext rhetorically puts thequestion of how such a colonusmay alienateanything he has inhis peculiumwithout hismaster's knowledge,when the law did notwant him to have an independentfaculty to do so and allows himonly to acquire and possess forhis master (CJ II.50.2.3). This stronglyrecalls a slavewho had a peculiumbut without the libera administratioover it (whichwould have allowed him to alienatewithout prior permission of his owner, seeCJ 4.z6.io). The language is rhetorical,but it is beyonddoubt thatone ormore constitutionshad eitherrestricted the adscripticius' faculty as owneror confirmed a private law constructionwith a restrictionregarding alienation, and thatsubsequently thisrestriction together with thebond to the landhad led to the interpretationand con firmationof theposition of an adscripticiusas being in thepotestas of theestate owner. One has to realize that in private law an estate ownerwould always have been able to recoverdebts of his adscripticiiby seizingand selling theirprivate assets, afterhaving obtaineda judgementagainst them.If theseassets includedsuch a peculium,it assured him thatthe assets were there.But thequestion is,what was thepeculium, why was thissepar atemeasure introducedand what was itspurport? Did itextend to all possessionsof an adscripticiusas itwould seem?This questioncannot be solvedhere but severalarguments can be raisedwhich might make the institutionfit better with the law. We have seen thatadscripticii were given charge over irrigationworks (n. 68). It is possible thatthe same happened with plots of landwhich theyhad to cultivate.The estate ownerwould have retainedownership. In this situationthe adscripticiuswould act as actor (representative)for the estate owner: he tookcare of his plot and turnedover a lump sum. If he borrowedmoney, the creditorcould not recoverthis fromthe estate owner unless the latterhad givenan order (iussum),in which case he could proceed against the estateowner with theactio quod iussu.78 The question is reflectedin a case inwhich an adscripticiusis pledging his possessions. InP.Oxy. LXIII.4398 (A.D.553) the&vaco6ypapoq 7yopy70q giveshis possessions in surety(Ktv6UVv(q) cdov gtoi6zapX(O(6vov)) to his estate ownerDioscorus for a loan of wheat forsowing on theestate fieldsin his charge (Vi'?t?).He promisesto returnthe loan togetherwith thepayment of his tax (pac&Kaic TOO (POlKOt) gou Popou) inkind of thesame quality.With pOpoqthe tax on theadscripticius himself is meant; why shouldVictor be liable forsomebody else's land? Ifhis possessionswere peculium in thestrict sense (i.e., propertyof Dioscorus, incharge of Victor) he could not do this.Neither is it likelythat he could pledge a potentialclaim to theremainder of peculium in thewider senseas discussed above. It is the same 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 (1993), 32.5-32. 78 This would mean that he could recover the amount as comprised in the order. Normally we see the quod iussu was applied to slaves and sons in potestate, but ratification (ratishabitio) 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 ? of the iussum would make sense if this was done. See for the ratishabitio and iussum, A. Kacprzak, 'Ratihabitio' nel diritto romano classico (2002), 91-113.

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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 tofito).79Another case: in a deed of suretyZacharias guaranteesthat the adscripticius 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 ifhe were liablehimself for the taxes, but that he will pay (in any case) this amount to the estate owner, since he likeVictor cannothave been liable forthe taxesof anotherperson. The cases conformwith thepractice attested inCJ II.48.20 pr. thatcoloni turnover most or all revenues,out ofwhich the landownerpays all taxes.Here it seems that they 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 floatingwork capital, sometimesbut tressedwith a loan, towork as small entrepreneurson theirplot? If so, theestate owner 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 such financialpractices with a period ical settlementof accounts. Next to that thereare clearlyassets which do not fallunder thecontrol of theestate owner, or else a pledge would make little sense, and Elias is quite assertive in his assurance. This is certainlythe case for immoveablesand herewe must assume thatthe adscripticii were not under any lien;as followsfrom CJ II.48.4.I with its registrationof adscripticii in thecensus of the territory,where theirown plot of land lay.And indeed,nowhere do the textssay thatall theadscripticii had was peculium: theyonly say thatthe adscripticii cannot freelydispose of theirpeculium - which leaves open thepossibility that they owned other assets, not part of the peculium and that this was settled by law. With the 'free'coloni, theenrolment did not have thesame effects.Since theyhad topay theirpoll tax themselves,the need fora guarantee fromthe estate owner was 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 settledaccording to theusual private law ruleson loan.The yearlysettling of accountswould havemade themowner of theirsaldo. The situationrecalls remarkablythe classical figureof a person inman cipio.Mancipium was thepower (potestas)a pater familiasexercised over 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.81 They would remainfree persons and capable ofmarriage. The pater familiascould acquire throughthem property but not possession (Gai. z.90), thuswhat theyhad would be peculium.Under Justinianthese two sources of mancipium had disappeared and with them themancipium as personal law status,82 but if the adscripticiate had been created in the firsthalf of the third century, it is verypossible thatit was modelled afterthe mancipium, since thismust stillhave existedat

79 Both formulations are almost in perfect accordance with what Justinian in CJ 8.16.9 wrote as necessary to a et rerum me establish hypothec: 'fide periculo ad pertinentium'; cf. P.Oxy. LXX.4794 (a.D. 580), also a hypothec a of all belongings. Itmay look strange that in case of peculium there could be a debt of the adscripticius to his estate as a owner, but the peculium functioned 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.

This content downloaded from 194.95.59.195 on Tue, 23 Jul 2013 07:31:08 AM All use subject to JSTOR Terms and Conditions THE COLONATE IN JUSTINIAN S REIGN I41 that time.83The mancipium could be imposedby a public officialand consequentlyby public law, so to assume that theact of inscriptioninto the (public)census registerdrew thecolonus into theadscripticiate is defensible since CJ II.50.2.3 refersto such a . Yet thereare more aspects to theadscripticiate. It isevident that it was connectedwith thepayment of thepoll tax.The estateowner tookupon him theduty topay thisand the adscripticiuswas bound because of thisyearly tax. Itmust have been a bond to his estate owner.84The colonate served(also) toguarantee the latter the counter-performance of the colonus. If thecolonus had been a tenant,the estate owner as lessorwould have had a tacit hypothecon theproperty of the tenant(CJ 8.I4.7), whichmeant thateven if the tenant sold his goods, his claims could stillbe satisfied.There would have been no need for the privileges the adscripticiategave the estate owner. This (again) is a strongargument against the idea of tenancyas being fundamentalto theadscripticiate. Adscripticii were thenoriginally either land labourersor farmerswho had a plot of landof theestate owner incharge (inprecario?). It is likelyin view of theirpresumably destitute situation that they would have been dependentfor the exploitation of thison theestate owner for loans and leniencyin timesof adversity;as theydid for thepoll tax. In thiscase theprivate law did not offerthe estate owner a formof security.Mancipium would have been a solution. Regarding thosewho could only offertheir labour, it securedthe authority of theestate owner to summonthem and to forcethem to work without theneed to go to court first. Regarding thosewho had some assets, it secured his claim by these being treatedas peculium.A furthersecurity would be built in by denying the adscripticiithe libera administratioover thepeculium, which meant thatthey could not alienate anythingin it without theestate owner's permission.85Protection of theestate owner's interestin having recoveryof the taxpaid by him as guarantormust have led to the legalisationof thisand consequentlythe peculium would have been an effectof theenrolment in thecensus as adscripticius.An exceptionexisted for thereal estate theypossessed in as faras theyhad to pay the tax for this (the tributum)themselves and had to registerin thecensus of the territorywhere the land lay (CJ II.48.4.I). Since theirestate owner apparentlydid not carryany liabilityhere, it is likelythat thepeculium constructiondid not apply to this land.Here thetax collectorcould seize the land incase of default. Ifsomebody was liable to theadscripticiate by origo, he would have unrestrictedowner ship of his assets until he was summonedand had acknowledgedthis obligation, in the sameway aswas donewith munera. His moveable assetsmust thushave become subjected to thepeculium. This is one way to explain thepeculiarities of theadscripticiate. The otherpossibility would be thatthe adscripticius would have transferredhis possessions in fiduciaryowner ship to his estateowner, inorder toprovide security. He would keep possessionor receive his propertyback in precario. The practice of transferringwas not uncommonwith sociallyvulnerable people, since as propertyof a powerfulperson their(few) assets could not easily be seized by the authorities.This practice of transferringassets 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 . 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 It was possible to grant the libera administratio to a slave: he could then alienate things out of itwithout the 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).

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condemned.86To call untechnicallysuch goods peculiumwould fitthe situation of social dependence.We would, however,have to assume thatit would have been recognizedlater on inpractice, which isunlikely. The firsthypothesis gives a betterexplanation, although thereremain questions, such as: howwould theregistration in thecensus have takenplace? Did it indeed automaticallyentail the restrictionsin litigation,imposed upon the adscripticius?87

XIII SOME CLOSING OBSERVATIONS

We have concentratedour investigationon Justinianiclegal and documentarytexts and seen that it ispossible to get a coherentview on thecoloni censiti. First, therewere two condiciones regardingcoloni censiti, thepersons registeredin somebody's census as coloni: the condicio coloniaria or adscripticia,and the condicio whichwe called the 'free'colonate. The condicioadscripticia was based on an origo estab lishedon an estate,itself based on descentfrom a fatheror unwedmother who had already been subjectedto thiscondicio, or on an enrolmentinto the census of theestate owner fol lowingan agreementto thiseffect. The othercondicio was also based on an origo estab lishedon an estate,and thisagain on thedescent from a fatheror unwedmother who had alreadybeen subjectedto thiscondicio, or on the impositionof it. The consequencesof each condiciodiffered considerably in private law. In thedomain of personal law, thecondicio adscripticialed inA.D. 53I/534-539 forthe adscripticius to restrictionon marriagewith a woman not subjected to thiscondicio. In thedomain of propertylaw, it implieda grave restrictionregarding his assets (hismoveables and prob ably formost of theadscripticii their only capital). Itwas called peculiumand considered as ifpeculium without liberaadministratio, which impliedthe prohibition against alien atinganything without thepermission of theestate owner, includingthe faculty to dispose by testamentof his peculium. If an adscripticiuspossessed real estate, thisproperty was not affectedby it.Regarding procedural law, in this condicio the possibility for the colonus to sue the estate ownerwas reduced to theposition of a freedmanagainst his manumissor, i.e. itwas almostnil. Itwas theserestrictions which made him consideredas ifin potestate and a subjectedperson, ifthis was not alreadya featureof his condicio.The othercondicio did not have theseconsequences and thosesubjected to itwere called,with justice,'free'. In public law, the consequencesof both condicioneswere originallythe same: both kindsof coloni could be summonedor, incase of absence,be recalled,together with their familyand peculium.Both could be ordered toperform services within theexploitation of theestate thatwas theirorigo. Regarding procedures, it was thesame: theycould sue their estateowners forunjust claims regardingtheir condicio. But theadscripticii had threepos sibilitiesto leave theircondicio. They could exit theircondicio if theestate owner con sentedto this.If theyfulfilled their obligations for thirty years, theircondicio changed into thatof the 'free'colonate, and thisapplied to theirchildren as well. This will not often have been thecase. FromA.D. 539 onwards, ifa male adscripticiusentered a marriage with a woman not subjectedto thecondicio adscripticia, the children of such a marriagewould be 'free'coloni and could even transfertheir origo to theirown estate ifthey acquired one largeenough forthem to be fullyoccupied with it. In both condiciones,the coloni were taxed forthe poll tax. If theypossessed land, they had tomake a professio in thecensus of the territorywhere it lay and 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.

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themselves.In thecase of thepoll tax (capitatiohumana), theestate owners of adscripticii paid thistax to thetax collectors, because theyhad takenon responsibilityfor it, while the adscripticiiin theirturn were topay it to theirestate owner. Itwould go too farto see in thisconstruction a role for theestate owner as public tax collector,as Gascou does.88It was rathera case of takingover as primaryco-debtor and thusbeing obliged to renderthe amountof the tax as revenue.The otherkind of coloniwas in thisrespect 'free' as well: suchpeople were primarilyresponsible for this tax and had to pay it themselves. Justinianunderlined the contractual origin of theadscripticiate and althoughwe do not know how oftenthis was thecase inhis time(many cases of theadscripticiate in his reign will have been based on origo by descent,as will have beenmost or almost all cases of the 'free'colonate), itmust have happenedor else his emphasiswould not havemade sense. And we know of a case of re-admittanceto theadscripticiate (see n. I7). This means that theadscripticiate was not a universalphenomenon which afflictedall farmlabourers. And on theother side, the implementationas a statusbased on origomeant thata colonus censituswas not necessarilya farmlabourer, but could pursueother occupations. In view of therestricted scope of thisarticle it is not possible to draw conclusionsfor theentire debate on thecolonate here.But somethingcan be said nevertheless.The many referencesto coloni censitibeing away fromthe estate and occupyingpositions which shieldedthem from being summoned,the emphasis of Justinianon thecontractual origin of theadscripticiate, the occupations of thoseadscripticii who were of thisstatus appar entlyonly on accountof theirorigo, indicatethat for Justinian's reign the characterization of societyas a sociallypetrified system does not hold well for this level.Neither is it possible to state that thepersonal position of thecolonus censitushad deterioratedinto serfdom.89This corroboratesthe caution as expressedby severalauthors. Perhaps society and thecolonate were indeedso, or to an extentso in theperiod up untilJustinian; but thenone has to surmisea considerablechange inboth at somemoment between Diocletian 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 As Demandt, see n. 9, without any reservations.

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