STUDIES IN LEGAL AND AGRARIAN HISTORY I: THE INSCRIPTION FROM HENCHIR-METTICH AND THE LEX MANCIANA*
The last quarter of the twentieth century has witnessed a dramatic change in the type of evidence most frequently used in the study of rural North Africa during the Roman period. Until around the mid-1970s nearly all attempts to reconstruct the agricultural history of this region relied heavily on literary and epigraphic sources. Since then the field has come to be dominated by field surveys, pottery studies and excavations1. Although archaeological research has shed new light both on the way in which individual farmsteads were operated and on the evolution of pat- terns of settlement, however, it is less useful when it comes to unravel- ling social and legal relationships. For this reason alone the written sources will always remain important, even if some of them have been discussed ad nauseam. One of the most extensively studied of the surviving documents from Roman North Africa is an epigraphic set of regulations concerning the cultivation of one category or several categories of land on an imperial estate in the Bagradas (mod. Medjerda) valley in Tunisia2. From the opening lines of the inscription it appears that these regulations were issued ad exemplum legis Mancianae by two imperial procuratores in 116 or 117 AD, and that they were addressed to a group of coloni who had farmsteads within the estate of the Villa Magna Variana. In a num- ber of publications that appeared between 1978 and 1988 Dieter Flach
* Abbreviations: D. FLACH, Inschriftenuntersuchungen: Inschriftenuntersuchungen zum römischen Kolo- nat in Nordafrika, Chiron 8 (1978), p. 441-492. D. FLACH, Pachtbedingungen: Die Pachtbedingungen der Kolonen und die Verwaltung der kaiserlichen Güter in Nordafrika, in ANRW II 10.2, Berlin–New York 1982, p. 427-473. D. KEHOE, Lease Regulations: Lease Regulations for Roman Imperial Estates in North Africa, pt. I: ZPE 56 (1984), p. 193-219, pt. II: ZPE 59 (1985), p. 151-172. D. KEHOE, Economics: The Economics of Agriculture on Roman Imperial Estates in North Africa, Göttingen 1988. 1 See D.J. MATTINGLY – R.B. HITCHNER, Roman Africa: an Archaeological Survey, JRS 85 (1995), p. 165-213, esp. 189-198. 2 CIL VIII 25902, to be consulted with D. FLACH, Inschriftenuntersuchungen, and D. KEHOE, Lease Regulations I and II. 220 L. DE LIGT and Dennis Kehoe argued persuasively that the lex Manciana that the procuratores took as their ‘model’ (whatever that may mean) must have been a private lex locationis; that is, a private lease arrangement defin- ing the rights and obligations of a group of tenants vis-à-vis the owner of a rural estate3. This implies that the application of this lex to the coloni of imperial estates was a secondary development. The most likely explanation is that somebody called Mancia, perhaps the T. Curtilius Mancia who was suffect consul in 55 AD and legate of Upper Germany in 56-584, formulated a lex locationis for his African estates and that one of these estates (or another private estate whose owner had copied the lex Manciana) was bequeathed to the imperial fiscus or confiscated by it5. Modern scholarship may have reached a consensus as to the origin and legal nature of the lex Manciana, but it remains divided on some other important issues. To begin with, those who have studied the inscription from Henchir-Mettich in recent years continue to hold widely diverging views concerning the relationship between the inscribed text and the lex Manciana. Thus, Flach has suggested that the epistula (or lex)6 procuratorum may have been issued shortly after the Villa Magna Variana had accrued to the emperor, and that the letter may actually have introduced the lex Manciana on what had formerly been a private estate7. Against this it has been argued by Kehoe that the epistula procu- ratorum was issued in response to an application, and that its provisions should be seen as modifying the rights and obligations of a group of imperial coloni who had been cultivating their holdings in accordance with the lex Manciana for many years8. A closely related question is to
3 See D. FLACH, Inschriftenuntersuchungen, and Pachtbedingungen, p. 444-446; D. KEHOE, Lease Regulations I, p. 202-203, and Economics, p. 48-50. This view goes back to J. TOUTAIN, L’inscription de Henchir Mettich. Un nouveau document sur la propriété agricole dans l’Afrique romaine, Nouvelle Revue Historique de Droit Français et Étranger 21 (1897), p. 383-387. Cf. also O. HIRSCHFELD, Die kaiserlichen Verwaltungs- beamten bis auf Diokletian, Berlin 19052, p. 123-124, and H. GUMMERUS, Die Fronden der Kolonen, Helsingfors 1906-1907, p. 10-19. 4 PIR2 C 1605. 5 Kehoe’s reconstruction of the way in which the estate was acquired by the fiscus (Economics, p. 51-54) is just one among many possible scenarios. Cf. below, note 16. 6 Although epistula would be the correct technical term, the inscription uses the word lex. See D. FLACH, Inschriftenuntersuchungen, p. 442-443. 7 D. FLACH, Inschriftenuntersuchungen, p. 443; cf. ID., Pachtbedingungen, p. 456; and ID., Die Verwaltung und Verpachtung kaiserlicher Ländereien in Nordafrika (review of D. KEHOE, Economics), JRA 2 (1989), p. 264. 8 D. KEHOE, Lease Regulations I, p. 195 and 213; ID., Economics, p. 37-38. STUDIES IN LEGAL AND AGRARIAN HISTORY 221 what category or categories of land the lex Manciana applied. According to Flach, the lex Manciana contained two sets of provisions, one con- cerning the rights of those who had grown crops on formerly unculti- vated parts (subseciva)9 of the estate, and the other stipulating a wide range of rights and obligations that applied to all the coloni, including those belonging to the first group10. By contrast, Kehoe sees the original lex Manciana as laying down rules to govern the exploitation of land already brought under cultivation and hence as not containing any regu- lations regarding the cultivation of subseciva at all11. A third problem, which Flach and Kehoe chose to ignore, is the relationship, if any, between the lex Manciana and CJ XI 63,1, an imperial constitution issued by the emperor Constantine. This text has been interpreted as evi- dence that the aim of the lex Manciana was to promote the cultivation of olives and vines on subseciva. This would mean that those who planted formerly uncultivated parts of a private or imperial estate with either of these crops would have enjoyed more extensive rights than those who preferred to sow grain. Since my attempt to contribute to the solution of these problems will involve reinterpreting a number of passages from the first and fourth columns of the Henchir Mettich inscription, I shall begin by reproducing Kehoe’s version of those parts of the text that will occupy us in the remainder of this article. col. I [Pro sal]ute [A]ug(usti) n(ostri) im[p(eratoris)] Caes(aris) Traiani prin[c(ipis)] totiusqu[e] domus divin(a)e 4 [op]timi Germanici Pa[r]thici data a Licinio [Ma]ximo et Feliciore Aug(usti) lib(erto) proc(uratoribus) ad exemplu[m] [leg]is Man[c]ian(a)e. qui eorum [i]ntra fund
9 For this meaning of subseciva see J. KOLENDO, Sur la législation relative aux grands domaines de l’Afrique romaine, REA 65 (1963), p. 85-87; and ID., Le colonat en Afrique sous le Haut-Empire, Paris 19912, p. 37. For uncultivated land being attached to private fundi, see C. MOATTI, Étude sur l’occupation des terres publiques à la fin de la Répu- blique romaine, Cahiers du Centre G. Glotz 3 (1992), p. 67; cf. also D. XXXIII 7,8,1: si fundus saltus pastionesque habet. Pace P. ØRSTED, From Henchir Mettich to the Alber- tini Tablets, in J. CARLSEN – P. ØRSTED – J.E. SKYDSGAARD (eds.), Landuse in the Roman Empire, Rome 1994, p. 115-125, the subseciva referred to in the Henchir Mettich inscrip- tion do not seem to have been public property. 10 D. FLACH, Inschriftenuntersuchungen, p. 446; cf. ID., Pachtbedingungen, p. 449. 11 D. KEHOE, Lease Regulations I, p. 207 and 212-214; cf. ID., Economics, p. 38. 222 L. DE LIGT
8 [c]esiva sunt excolere permittitur lege Manciana vvv ita, ut e
12 M.I. ROSTOVTZEFF, Studien zur Geschichte des römischen Kolonats, Leipzig–Berlin 1910, p. 322. STUDIES IN LEGAL AND AGRARIAN HISTORY 223 coloni of individual estates could apply to these officials for the right to cultivate subseciva on the basis of this arrangement13. According to this theory, the epistula procuratorum should be seen as having been prompted by a request submitted by the coloni of the estate of the Villa Magna Variana and as instituting a slightly adapted form of the lex Man- ciana on this estate. Although this interpretation was endorsed by an East German scholar in 198314, the majority view is now that it must be rejected on two grounds. Firstly, following Flach’s re-examination of the epigraphic evi- dence it can no longer be maintained that the lex Manciana emanated from the central Roman authorities rather than from a private landowner (cf. above). Secondly, the inscription from Henchir-Mettich provides clear evidence that the epistula procuratorum was issued not with the aim of instituting the lex Manciana on the Villa Magna Variana, but in order to confirm and modify the rights and obligations of the tenants of an estate on which the lex Manciana had been introduced long before 116/117 AD. Kehoe has drawn attention to a passage in the first column of the inscription (I, 23-24) in which it is laid down that the coloni are to pay their rent «in accordance with the custom of the law of Mancia» (my italics)15. Perhaps this is not decisive, since the custom in question could be that of a neighbouring private or imperial estate on which Mancia’s regulations had already been instituted. Any lingering doubts are, however, dispelled by the use of the perfect tense in the fourth col- umn, where we read about cultivations (superficies) that «have been or will be given by right of pledge or security in accordance with the law of Mancia» (IV, 7-8). The only possible conclusion is that the coloni of the Villa Magna Variana had been cultivating at least some of their hold- ings on the basis of the lex Manciana before Trajan’s procuratores issued their epistula. Kehoe, then, was fundamentally right in asserting that the lex Man- ciana had existed as a regulation on the estate of the Villa Magna Vari- ana long before the publication of the inscription. Furthermore, I would accept his suggestion that the regulations of 116/117 AD were issued in
13 M.I. ROSTOVTZEFF, op. cit., p. 343-344. 14 V. WEBER, Die Kolonen in Italien und den westlichen Provinzen des römischen Reiches nach den Inschriften, in K.-P. JOHNE – J. KÖHN – V. WEBER, Die Kolonen in Ita- lien und den westlichen Provinzen des römischen Reiches, Berlin 1983, p. 320. Cf. also C.R. WHITTAKER, Land and Labour in North Africa, Klio 60 (1978), p. 360. 15 D. KEHOE, Economics, p. 38. 224 L. DE LIGT response to a petition submitted by the coloni. As noted above, Flach has suggested that the procuratores may have had to supply the coloni with a new lease arrangement because the estate had recently fallen into imperial hands. This suggestion makes sense to the extent that if the emperor had received the estate as a legacy, the fiscus would not have been bound by such private regulations as had been instituted by the for- mer owner16. However, if the setting up of the inscription from Henchir- Mettich had been connected with a recent change of ownership, one would have expected a more or less comprehensive set of lease regula- tions. A glance at the text of the first column is enough to show that the provisions recorded therein are not comprehensive. A clear example is the regulations concerning the procedure for estimating the amounts of produce that the coloni will be required to pay as rent (I, 13-20). The only crops referred to in this context are those that are crushed on the threshing floor, in other words cereal crops. Cereals, however, were only some of the many crops cultivated on the estate. This suggests to me that the provisions concerning the amounts of cereals due as rent were laid down by the procuratores because disputes had arisen as to the proce- dure to be followed with regard to the payment of the third shares of this particular type of produce. It may be speculated that there were fewer problems with the payment of the third shares of wine and olive oil because grapes and olives were normally processed at the ‘home farm’ of the conductores, perhaps because the coloni did not have presses of their own. However that may be, it is much easier to understand the pro- visions concerning the assessment of the third shares of cereal crops if the aim of the procurators was not to issue a comprehensive set of lease regulations, but to resolve a number of difficulties arising from the application of an existing set of regulations that retained its validity. The idea that the procurators had been asked to clarify the scope and meaning of an existing set of regulations is also supported by the emphatic reference to «those who have or will have farmsteads within the estate of Villa Magna Variana» in the first column (I, 20-21; cf. I, 6- 7). In my view, the background to this descriptive phrase could well be that the procurators had been asked to clarify which group or groups of coloni had the right to plant crops on formerly uncultivated land and the right to pay the relatively low rents laid down in the lex Manciana. Fur-
16 Cf. note 18. If the estate had accrued to the emperor as part of an inheritance or if it had been confiscated, this problem would not have arisen, because the fiscus would then have succeeded to all the rights and obligations of the former owner. STUDIES IN LEGAL AND AGRARIAN HISTORY 225 thermore, it is striking that the epistula procuratorum provides that any estate-based colonus who sows crops on a piece of formerly uncultivated land shall have the usus proprius of that land, but takes the general meaning of this legal notion for granted. On the basis of parallel evi- dence (mainly the Aïn-el-Djemala and Aïn-Wassel inscriptions17), it has been plausibly suggested that these two words refer to a hereditary ius colendi18 that could be used as a pledge or sold19. Although some of the constituent elements of this right are alluded to in the fourth column, it also appears that the procuratores were more concerned to resolve diffi- culties than to define the notion of usus proprius as such. One illustration of this is the provisions concerning the right of the coloni to bequeath any piece of land brought under cultivation by them to their legitimate children (IV, 2-9). As Flach observed, the aim of this passage is not so much to spell out the cultivator’s right to bequeath such land to his heirs as to narrow down the category of potential recip- ients and to clarify what should happen if the deceased has pledged a cultivation (superficies) to a creditor after bequeathing it in his will20.
17 CIL VIII 25943 and 26416, to be consulted with D. FLACH, Inschriftenunter- suchungen, p. 461-470. 18 Cf. D. FLACH, Inschriftenuntersuchungen, p. 445-446. The hereditary ius colendi referred to in the Henchir Mettich inscription (col. IV, 13) must be the same thing as the ius possidendi ac fruendi heredique suo relinquendi granted by Hadrian to those who brought under cultivation vacant land or formerly cultivated land that had not been used for farming for ten consecutive years (CIL VIII 26416, col. II, lines 7-13). Note that Man- cian cultivators on imperial estates were in a somewhat stronger position than those on private ones, not only because Mancian coloni of the second variety were detentores rather than possessores (cf. M. KASER, Das römische Privatrecht, I: Das altrömische, das vorklassische und klassische Recht, München 1971, p. 389-390), but also because their ius colendi could not be enforced against a new owner who had acquired the estate by purchase or by means of a legacy. 19 From the Albertini Tablets we know that Mancian cultivations could be sold in late Antiquity. According to A. Pezzana, Intorno alla «lex Manciana», in Studi in onore di Emilio Betti III, Milano 1962, p. 655-657, Mancian cultivators had not been permitted to dispose of their rights in this way during the second and third centuries AD. This is, how- ever, clearly wrong; cf. M. KASER, Das römische Privatrecht I, p. 465 and 470-471, for the fact that the right to use a thing as a pledge normally implied that the thing in question could be sold. On the other hand, it is perfectly possible that the cultivators were not per- mitted to pledge or sell their cultivations without the prior permission of the owner of the estate (cf. CJ IV 66,3). This would help to explain why nearly all the buyers referred to in the Albertini Tablets are relatives of the owner of the estate. Cf. J. LAMBERT, Les «Tablettes Albertini», RAf 97 (1953), p. 199; D.J. MATTINGLY, Olive Cultivation and the Albertini Tablets, in L’Africa Romana, Atti del VI convegno di studio, Sassari 1989, p. 405. 20 Pace D. KEHOE, Economics, p. 39, the second half of this passage cannot possibly mean that the «heirs were assured of the right to use the land and improvements as secu- rity for loans». 226 L. DE LIGT
Flach must be given full credit for drawing attention to the following passage from the Sententiae Pauli (compiled towards the end of the third century AD): Rem legatam testator si postea pignori vel fiduciae dederit, ex eo vo- luntatem mutasse non videtur. The legal question lying behind this legal opinion is whether the pledg- ing of an object that has been bequeathed to a legatarius amounts to a revocation of the legacy (ademptio legati)21. Unfortunately, Flach went on to spoil his discovery by arguing that the parallel passage from the Henchir-Mettich inscription defines the legal position of the heir in respect of an object that a testator has pledged after drawing up his will. According to this theory, the point made in the fourth column would be that the right to reclaim the pledge from the creditor after paying the underlying debt is transferred to the debtor’s heirs, so that the creditor is not entitled to sell the object in question for as long as the deceased’s legal successors continue to meet his obligations22. The principal weak- ness of this interpretation (which underlies Flach’s and Kehoe’s restora- tions of the passage) is that it is difficult to see why the procurators would have thought it worthwhile to make this particular point, because according to Roman law the heir always succeeds to the totality of the rights and obligations of the deceased23. The truth must be that Flach held the solution in his hand, but then threw it away. What I mean by this is that the fourth column of the Henchir-Mettich inscription must have dealt with the same problem as the passage from the Sententiae Pauli and should be restored as follows: [… qui in f(undo) Vill(a)e Magn(a)e Varia]- n(a){v}e siv
21 The same problem is dealt with in Inst. Iust. II 20.12: Si rem suam legaverit testa- tor posteaque eam alienaverit, Celsus existimat, si non adimendi animo vendidit, nihilo minus deberi, idque Severus et Antoninus rescripserunt. Iidem rescripserunt eum, qui post testamentum factum praedia quae legata erant pignori dedit, ademisse legatum non videri et ideo legatarium cum herede agere posse, ut praedia a creditore luantur. 22 D. FLACH, Pachtbedingungen, p. 439-440. 23 In a later article Flach tried to get around this problem by suggesting that the pas- sage might have widened the class of potential heirs to include those children who had not been born of a legitimate marriage: see Verwaltung (n. 7), p. 263. This, however, is com- pletely untenable. STUDIES IN LEGAL AND AGRARIAN HISTORY 227
24 I.e. after the drawing up of a will in which a newly sown superficies has been left as a legacy. 25 For this formulation, cf. above, note 18. 26 D. KEHOE, Lease Regulations II, p. 156-157 and n. 61, argues convincingly against the prevailing view (shared by D. FLACH, Inschriftenuntersuchungen, p. 456) that only fields planted with figs, olives or vines could be bequeathed and used as security. 27 The exclusion of spurii may reflect the low status and limited rights of illegitimate children in indigenous African society. Cf. A. PEZZANA, art. cit. (n. 19), p. 646 n. 35, for the suggestion that the term fiducia in col. IV, line 8, refers to a non-Roman legal insti- tution. 28 Cf. e.g. Pap., D. XXXI 77,7, and see M. Kaser, Das römische Privatrecht I, p. 744 and 748, on the legatum per praeceptionem and praelegatum of classical Roman law. 29 Col. II, 24-30. 30 D. KEHOE, Economics, p. 42 n.18. 228 L. DE LIGT planted on subseciva31. It could well be the case, however, that the inscription does not refer to the cultivation of vines on this latter cate- gory of land because the coloni were happy with the way in which the cultivation of vines on subseciva was regulated by the lex Manciana and had not petitioned the procurators to change or supplement the existing regulations. This methodological observation is important because it does considerable damage to Kehoe’s claim that the fiscus was «con- cerned to dictate what crops the coloni might cultivate on the imperial estates»32. Although the foregoing discussion has revealed some weaknesses in Kehoe’s interpretation of the inscription from Henchir-Mettich, the main finding that emerges is that his theory that the epistula procuratorum concerns an estate on which the lex Manciana was already in force is to be preferred to Flach’s suggestion that the epistula may well be the docu- ment that instituted the lex Manciana on the estate of the Villa Magna Variana. Flach and Kehoe are, however, also divided over a more import- ant issue to which we must now turn. As we have seen in the introduc- tory paragraphs of this article, these two scholars have put forward dif- ferent views not only concerning the circumstances in which the epigraphic epistula was published, but also regarding the type of land to which the lex Manciana applied. If I understand Flach’s position cor- rectly, he thought that the lex Manciana started by granting the right of usus proprius to those who sowed or planted crops on subseciva, but went on to lay down a long series of regulations applying to the estate as a whole. This theory underlies his interpretation of the epistula procura- torum, which he saw as being closely modelled on the original lex Man- ciana. Thus the provisions concerning the proportion of the crops due to the conductores of the estate (I, 13-29) were seen by Flach as regulating the future obligations of all tenants, regardless of whether they sowed their crops on land within the cultivated nucleus of the estate or on hold- ings carved out on the subseciva after the epistula procuratorum had come into force33. Against this Kehoe has argued that the regulations set out in the first part of the inscription (col. I,1 — II,13), including those concerning the share rents, refer specifically to the cultivation of subse- civa. At first sight, this reading of the text would seem to be at odds with
31 Col. III, 2-10. 32 Cf. the analogous criticisms of R. DUNCAN-JONES, Agricultural Economics (review of D. KEHOE, Economics), CR 40.1 (1990), p. 117. 33 D. FLACH, Pachtbedingungen, p. 449. STUDIES IN LEGAL AND AGRARIAN HISTORY 229
Kehoe’s view that the epistula procuratorum refers to an estate on which the lex Manciana had been introduced some considerable time before 116/117 AD (cf. above). According to Kehoe, however, this difficulty can be resolved by assuming that the original lex Manciana had nothing to do with the cultivation of subseciva, but regulated the rights and obligations of coloni who worked land already under cultivation34. This alternative interpretation of the lex Manciana, which goes back to an article by Kolendo35, implies that the epistula procuratorum should be seen as extending the scope of the lex Manciana by applying it to the occupation and cultivation of the unused parts of the Villa Magna Vari- ana. Since Kehoe sees the first part of the inscription as applying an existing set of regulations to a new category of land, he also rejects Flach’s theory that the right of usus proprius was a novelty that applied solely to the cultivation of subseciva. In Kehoe’s view, it is much better to assume that this right had already been included in the terms of tenure established by the lex Manciana. In other words, prior to the publication of the epistula procuratorum the cultivated nucleus of the Villa Magna Variana must have been worked by tenants who had been given both the right to pay Mancian shares of produce and the privilege of usus pro- prius36. In what follows, I shall try to demonstrate that although both Kehoe’s and Flach’s interpretations contain an element of truth, neither of them has provided a satisfactory reconstruction of the contents and scope of the lex Manciana. My attempt to make good this claim starts with a dis- cussion of CJ XI 63,1, a constitution of the emperor Constantine that was posted up in Carthage in 319 AD37. It appears from the text that the emperor had been asked to express an opinion concerning a complaint lodged by a group of long-lease tenants (emphyteuticarii) against the coloni of one of their estates:
34 Cf. above, note 8. 35 J. KOLENDO, art. cit. (n. 9), esp. p. 94-99; cf. ID., Le colonat (n. 9), p. 49-54 and 128-129. 36 D. KEHOE, Economics, p. 39. 37 For recent discussions of this text, see H. PAVIS D’ESCURAC, Irrigation et vie paysanne dans l’Afrique du Nord antique, Ktema 5 (1980), p. 186-188, and above all D. VERA, Terra e lavoro nell’ Africa romana, Studi storici 4 (1988), p. 967-992. There can be little doubt that the constitution refers to Africa. See e.g. J. GAUDEMET, Constitutions constantiniennes destinées à l’Afrique, in Institutions, société et vie politique dans l’empire romain au IVe siècle ap. J.-C., Rome 1992, p. 338. 230 L. DE LIGT
Emphyteuticarios gravant coloni agros praeter consuetudinem usurpantes quos nullis culturis erudierunt, cum sollemnitas id eos attractare permittat, quod eorum labore vel olivetis est obsitum vel vinetis. Sed et inriguas fontium aquas usurpare conantur, quarum fruc- tus solis emphyteuticaris debentur. Ideoque placuit ut deinceps aquarum ius potestatesque penes emphyteuticarios permaneant, tan- tumque ex eis colonis impertiatur, quantum culturis eorum agrorum sufficere manifestum est, quos ipsi colunt. Pro modo autem superfluae inrigationis, quam ultra culturas suas usurpaverint, emphyteuticariis possessoribus pensiones accessionesque praebeant. The first part of the constitution reveals that the coloni of the estate had committed two offences: not only had they contravened the «cus- tom of the estate» by taking possession of land that they had not brought under cultivation, but they had also tried to take control of the perennial springs that were used for the purpose of irrigation. During the past fifty years, the first offence has been interpreted in various ways. According to one theory, which was developed by Raymond Monier in the 1950s, the coloni must have tried to establish quasi-private pastures on the unused parts of the estate38. Against this Domenico Vera has recently argued that it would be much easier to understand why the emphyteuti- carii took the matter to court if the coloni had occupied part of the land that was exploited directly from the central villa of the estate39. It seems, however, much more likely that the offenders had taken possession of land that had been brought under cultivation by other coloni, whose rights had fallen into abeyance, for example because the fields in ques- tion had been abandoned or because the legal successors of the original occupants had died without heirs. In any case, it seems clear that the offenders had occupied holdings that were planted with crops. This read- ing of the text implies that the two offences committed by the coloni were interconnected, since the water that they had illegally appropriated would have been used to irrigate the vacant holdings that they had occu- pied. In line with this, I would interpret the emperor’s decision as signi- fying that the coloni would be allowed to hold on to the cultivated plots of which they had taken possession40, but only on the condition that their
38 R. MONIER, Le sens et la portée de la constitution de 319 (C.J. XI, 63, const. 1), in Aequitas und Bonitas. Festgabe zum 70. Geburtstag von August Simonius, Basel 1955, p. 260. 39 D. VERA, art. cit. (n. 37), p. 971 and 992 n. 122. 40 I take the emphatic phrase quos ipsi colunt as denoting the culturae suae of the coloni. STUDIES IN LEGAL AND AGRARIAN HISTORY 231 rents and secondary obligations41 would be raised in proportion to the amount of water needed to irrigate their new holdings42. However interesting all this may be, it will be obvious that the reason why I have introduced this legal passage in the context of this article has to do with the first complaint of the emphyteutic leaseholders. As we have just seen, the emphyteuticarii accused the coloni of illegally occu- pying unused parts of the estate on which they had not sown any crops. Interestingly, however, the plaintiffs supported this accusation by point- ing out that the consuetudo praedii did not permit the coloni to occupy any category of land other than formerly uncultivated land on which they had planted olives or vines. As Saumagne observed, the fact that the coloni would have been allowed to take possession of any olive groves and vineyards established by them on the unused parts of the estate strongly suggests that the consuetudo praedii in question was a variant of the lex Manciana43. The existence of any connection between CJ XI 63,1 and the lex Manciana has recently been rejected by Kehoe on the ground that the passage from the Codex does not contain any explicit reference to that lex44. It would appear, however, that this cur- sory dismissal of Saumagne’s discovery was prompted by the fact that this passage sat uncomfortably with Kehoe’s preconceived view that the lex Manciana had nothing to do with the cultivation of subseciva. In short, instead of relegating CJ XI 63,1 to a footnote because it did not fit his interpretation of the inscription from Henchir-Mettich, Kehoe should have attempted to reinterpret the epigraphic evidence in the light of this legal text.
41 For this meaning of accessiones, cf. Col., RR I 7,2, and the comments of W. SCHEI- DEL, Grundpacht und Lohnarbeit in der Landwirtschaft des römischen Italien, Frankfurt am Main 1994, p. 55-56. 42 Pace D. VERA, art. cit. (n. 37), p. 991-992, the second part of the constitution does not imply that any holdings held in conformity with the consuetudo praedii could be irri- gated without charge, whereas those who had illegally occupied vacant holdings were charged a fee for the water needed to irrigate the land but not for the use of the land itself. In my view, both groups had to pay a rent that was proportional to the amount of water allotted to them, while this amount itself was directly related to the number of trees on their land (and hence roughly to the size of their holdings). Cf. B.D. SHAW, Lamasba: an Ancient Irrigation Community, AntAfr 18 (1982), p. 82-86 (demonstrating that the water allotment scheme of the African town of Lamasba was based on the number of trees that were cultivated on the irrigated plots). 43 C. SAUMAGNE, Essai sur une législation agraire. La ‘lex manciana’ et le ‘jus man- cianum’ (orig. 1952), repr. in Les cahiers de Tunisie 10 (1962), p. 64-67. 44 D. KEHOE, Lease Regulations I, p. 197 n. 16; cf. ID., Economics, p. 48 n. 31. 232 L. DE LIGT
This digression on CJ XI 63,1 has prepared the way for a re-exami- nation of the first two provisions of the epistula procuratorum (col. I, 6- 12). Since the interpretation one chooses to place upon these clauses more or less determines the meaning of the epistula as a whole, I shall begin by repeating the Latin text as it has been reconstructed by Flach and Kehoe: … qui eorum [i]ntra fund
45 D. FLACH, Inschriftenuntersuchungen, p. 446. Cf. also ID., Pachtbedingungen, p. 432, and Verwaltung (n. 7), p. 264. 46 D. KEHOE, Lease Regulations I, p. 206. STUDIES IN LEGAL AND AGRARIAN HISTORY 233 to subseciva at the transition from line 7 to line 8. This reading of the passage implies that all the regulations set out in the first column and in the first part of the second are to be taken as referring to the cultivation of formerly unused land. It should, however, be remembered that several indications in the text led Kehoe to infer (correctly, in my view) that the epistula procuratorum was addressed to the coloni of an estate on which the lex Manciana was already in force (cf. above). What, then, can the purpose of the epistula procuratorum have been? As we have seen, Kehoe’s answer was that the original lex Manciana contained no provi- sions concerning the cultivation of subseciva and that the epistula should be seen as extending the regulations that had governed the exploitation of the cultivated nucleus of the Villa Magna to the unused parts of the estate. This view implies that, contrary to Flach’s theory, the coloni of the Villa Magna had already been paying Mancian shares of produce, and must also have had the usus proprius of the holdings that they culti- vated within the nucleus of the estate. It should be said straight away that the traditional interpretation of eo loco adhered to by Kehoe is much more convincing than the theory that these words refer to the estate as a whole. Admittedly, Flach was right in pointing out that the use of the singular tells against the idea that eo loco refers back to the plural subseciva. This objection can, however, be countered with the argument that the demonstrative pronoun is is often used as an equivalent of talis or eiusmodi47. In other words, the expres- sion eo loco should be translated as «in such a place» and be taken as referring to any place brought under cultivation in conformity with the criteria laid down in the first provision of the epistula procuratorum. With this slight modification Kehoe’s reading of the passage can be accepted. It would, however, be wrong to conclude that we should also accept Kehoe’s theory that the original lex Manciana had nothing to do with the cultivation of subseciva. As noted above, the basic observation underly- ing this theory is that the epistula procuratorum seems to grant permis- sion to cultivate the unused parts of the Villa Magna Variana in accord-
47 See Oxford Latin Dictionary, s.v. is, 10. A well-known epigraphic example is CIL XIV 2112, col. I, line 12, where the phrase in it collegium coeant is the equivalent of in eiusmodi collegium coeant. Cf. J.-P. WALTZING, Étude historique sur les corporations professionelles chez les Romains, vol. I, Bruxelles 1895, p. 134 n. 2, and F.M. DE ROBER- TIS, Storia delle corporazioni e del regime associativo nel mondo romano, vol. I, Bari 1971, p. 279-286, esp. n. 20. 234 L. DE LIGT ance with a lex locationis that had been introduced on the estate long before 116/117 AD. Earlier in this article I pledged my adherence to the view that the lex Manciana must have been in force at the Villa Magna before the closing years of Trajan’s reign. Is it, however, also true that the epistula procuratorum granted permission to sow crops on the uncul- tivated parts of the estate? At this point, I would like to draw attention to a seemingly unproblematic premise that underlies both Flach’s and Kehoe’s interpretation and indeed the interpretations of all those who have occupied themselves with the inscription from Henchir-Mettich since its discovery in 1896. The premise I have in mind has to do with the meaning of permittitur in line 8. In the final analysis, Flach’s inter- pretation of the epistula procuratorum boils down to the assertion that this document should be seen as introducing a lex Manciana one clause of which gave the coloni the right of usus proprius in respect of any piece of unused land that they might bring under cultivation. By con- trast, Kehoe interpreted the epistula as permitting the unused parts of the estate to be cultivated in accordance with a lex Manciana that had pre- viously regulated the rights and obligations of coloni on the cultivated nucleus of the estate. For all their differences, the two scholars were, however, united in assuming that the epistula procuratorum granted per- mission to cultivate the subseciva of the estate lege Manciana and in interpreting the subseciva in question as those parts of the estate that had not been brought under cultivation before 116/117 AD. At first sight, these basic assumptions would seem to be dictated by the fact that permittitur is an indicativus of the present. I have, however, come to believe that it is precisely this seemingly natural reading of per- mittitur that has blocked the way to a convincing interpretation of the epistula procuratorum and the lex Manciana. Even a superficial investi- gation into the use of the verb permittere in the legal sources is enough to reveal that permittit and permittitur are often used to denote a stand- ing permission not given by the text in which they occur. For example, when the third-century jurist Ulpian tells his readers that it is permitted for a provincial governor (permittitur provinciae praesidi) to appoint a tutor for the inhabitants of his own province, he is obviously referring to a situation that has existed for a very long time and when his contem- porary Tryphoninus points out that it is permitted for a soldier to make a will for his son (permittitur filio facere testamentum) even when he has not made one for himself, it would be ridiculous to infer that sol- diers did not have this privilege before the last quarter of the second STUDIES IN LEGAL AND AGRARIAN HISTORY 235 century AD48. Similarly, the Roman jurists often say that the Law of the Twelve Tables ‘permits’ something49 or that something ‘is permitted’ in virtue of an old senatus consultum50. This meaning of permittitur and permittit opens the way for a new interpretation of the inscription from Henchir-Mettich. In my view, there can be little doubt that the first provision of the epistula procuratorum, laying down that all estate-based coloni of the Villa Magna shall be per- mitted (permittitur) to cultivate the subseciva in accordance with the lex Manciana, should be understood as both confirming and clarifying an existing regulation. Of course, this interpretation is not contradicted by the futurum exactum «excoluerit», which should be interpreted as look- ing forward from the moment at which the lex Manciana came into effect on the estate. In line with this, the word subseciva should be taken not as referring to those parts of the Villa Magna Variana that had not been brought under cultivation before 116/117 AD, but as denoting any part of the estate on which no crops had been sown before the introduc- tion of the lex Manciana, an event that should be placed some consider- able time before the date of the epistula procuratorum. If this interpretation of the first provision set out in the first column is correct, it follows that Kehoe was wrong in believing that the epistula procuratorum was prompted by a petition in which the coloni of the Villa Magna had asked to be given the right to cultivate the unused parts of the estate in accordance with the lex Manciana. Instead, the coloni must have asked the procuratores to resolve a number of difficulties arising from the application of a lex Manciana that had given all estate- based cultivators the right to sow crops on subseciva. The reason why this alternative reconstruction of the background to the inscription from Henchir-Mettich is so important is that it cuts the ground from under Kehoe’s theory that the original lex Manciana had nothing to do with the cultivation of subseciva. I would, indeed, go so far as to maintain that the lex Manciana was concerned exclusively with the rights and obliga- tions of those who brought under cultivation the unused parts of private or imperial estates51. It seems hardly necessary to point out that this view
48 See Ulp., D. XXVI 5,1,2 and Tryph., D. XXIX 1,41,5. 49 D. IX 2,4,1 (Gaius): lex duodecim tabularum permittit. Cf. D. XXV 3,1,1 (Ulp.): senatus consultum (Plancianum) permittit; D. XI 8,2 (Marcellus): negat lex regia. 50 Venul., D. XXIX 5,13 pr.: permittitur eodem senatus consulto. 51 From the mid-1960s onwards, the prevailing view has been that the lex Manciana must have regulated both the cultivation of subseciva and the rights and obligations of those holding land already under cultivation. See e.g. N. BROCKMEYER, Arbeitsorganisa- 236 L. DE LIGT is strongly supported by CJ XI 63,1, which establishes a link between a consuetudo praedii, the cultivation of formerly unused land and the right of occupation. According to the interpretation outlined here, the lex Manciana origin- ated as a lex locationis that regulated the rights and obligations of those who sowed crops on the uncultivated parts of a group of estates belong- ing to a private landowner. Earlier in this article, it has been noted that it remains unclear whether this lex was introduced at the Villa Magna Vari- ana before or after its acquisition by the fiscus52. What is clear, however, is that this set of regulations concerning the cultivation of unused land was introduced on the estate long before 116/117 AD. This means that, contrary to the belief of both Flach and Kehoe, the line that separated the unused parts of the estate from its cultivated nucleus in 116/117 AD is entirely without significance. To put it another way, as far as the applica- tion of the lex Manciana was concerned, the only dividing line that was relevant was the line that had run between the cultivated part of the estate and its subseciva when the lex was instituted on the estate at an unknown date in the first century AD. It follows that the cultivated nucleus of the estate as it existed in 116/117 AD must have comprised much land in respect of which the coloni had the right of usus proprius, since it had been brought under cultivation on the basis of the lex Manciana. It is even possible that such holdings made up most of the cultivated land belonging to the Villa Magna, since the lex Manciana may well have been introduced at a time when the cultivated nucleus of the estate com- prised little more than the land that was cultivated directly from the cen- tral villa53. In any case, my interpretation of the relationship between the inscription from Henchir-Mettich and the lex Manciana tallies perfectly with Mattingly’s suggestion that this lex would have been particularly useful to landowners seeking to develop an estate from scratch54. tion und ökonomisches Denken in der Gutswirtschaft des römischen Reiches, Bochum 1968, p. 218-221; F.T. HINRICHS, Die Geschichte der gromatischen Institutionen, Wies- baden 1974, p. 236; D. FLACH, Inschriftenuntersuchungen, p. 446; V. WEBER, art. cit. (n. 14), p. 320 and n. 4. 52 Above, at note 5. 53 Any colonus who sowed crops on a formerly unused piece of land and built a farm- stead within the confines of the estate after the introduction of the lex Manciana must have had the usus proprius of his new holding and the right to pay Mancian shares of pro- duce, since he fell within the category of those qui intra fundum villas habebunt. Cf. col. IV, 9-11: [qui su]perficiem ex inculto excoluit excoluer[it eive qui ibi] aedificium depo- suit posuerit. 54 D.J. MATTINGLY, art. cit. (n. 19), p. 413. STUDIES IN LEGAL AND AGRARIAN HISTORY 237
A final problem that merits our attention is whether the regulations of the lex Manciana applied to any piece of formerly unused land that had been brought under cultivation or merely to those fields that had been planted with olives or vines. The theory that the favourable conditions granted by the lex Manciana applied exclusively to former subseciva on which the coloni had planted trees is associated with the name of Sau- magne55. His reconstruction of the scope of the lex Manciana was based on three pieces of evidence: the Aïn-el-Djemala inscription56, CJ XI 63,1, and the fifth-century Albertini tablets57. The first of these texts is an epigraphic dossier of the second century AD which contains, inter alia, a petition in which the coloni of an imperial estate applied for per- mission to set up olive groves and vineyards (oliveta et vineae) in marshlands and forested areas «in accordance with the lex Manciana»58. CJ XI 63,1 refers to an African estate whose consuetudo allowed the coloni to occupy any formerly uncultivated piece of land that they had planted with olives or vines (olivetis vel vinetis). Finally, the only culti- vations recorded on the Mancian holdings of the Albertini tablets are olives, almond trees, pistachios and vines59. From these facts Saumagne inferred that the lex Manciana must have regulated the cultivation of olives and vines in forested areas and other inhospitable locations60. Although initially Saumagne’s views found wide acceptance, they have now been generally abandoned61. A decisive factor in bringing this about was the appearance of an article by Kolendo in which the author called attention to the prominent place awarded to cereals in the inscription from Henchir-Mettich (see e.g. col. I, 13-14 and 25-27). Kolendo’s con- clusion, to which I subscribe, was that the lex Manciana was not con- cerned exclusively or even primarily with arboriculture62. The irresistible force of Kolendo’s arguments may explain why no one seems to have felt the need to account for the fact that some of our
55 C. SAUMAGNE, art. cit. (n. 43), esp. p. 54 and 66. 56 Cf. above, at note 17. 57 C. COURTOIS – L. LESCHI – C. PERRAT – C. SAUMAGNE, Tablettes Albertini. Actes privés de l’époque vandale (fin du Ve siècle), Paris 1952. 58 CIL VIII 25943, col. III, 5-7. 59 C. SAUMAGNE, art. cit. (n. 43), p. 20; D.J. MATTINGLY, art. cit. (n. 19), p. 406. 60 C. SAUMAGNE, art. cit., p. 54. 61 See D. FLACH, Inschriftenuntersuchungen, p. 449 (with references to earlier litera- ture). An exception should be made for H. PAVIS D’ESCURAC, art. cit. (n. 37), p. 187-188, who clings to the view that only fields planted with olives or vines could lawfully be occupied. 62 J. KOLENDO, art. cit. (n. 9); cf. ID., Le colonat (n. 9), p. 39. 238 L. DE LIGT sources do seem to refer to Mancian holdings planted with trees but not with grain. This is, however, a question that cannot be ignored. Part of the answer was provided by Kolendo himself, who suggested that the coloni of the estate at Aïn-el-Djemala may have applied specifically for the right to cultivate olives and vines because the conductores of the estate were unfavourably disposed towards any effort on the part of the coloni that did not yield an immediate profit63. What, though, of CJ XI 63,1 and the Albertini tablets? In my view, a satisfactory solution to this problem can be found by looking at the estates referred to in these texts from the angle of hydrology. As we saw in an earlier paragraph of this article, at least part of the estate referred to in CJ XI 63,1 was irrigated with water that flowed from perennial springs. The relevance of this fact is that in the arid parts of Tunisia the water from springs of this sort has nearly always been used to irrigate carefully built terraces that were planted with olives and other arboreal crops, even though wheat or bar- ley was sometimes grown as a secondary crop between the trees. The irrigation scheme at Lamasba, so brilliantly explained by Shaw, comes immediately to mind64. It is entirely understandable, then, that the right of usus proprius granted by the consuetudo praedii of this particular estate should have applied exclusively to those fields on which the coloni had planted olives or vines. The Mancian holdings recorded in the Albertini tablets are a slightly different case because the fields in ques- tion probably belonged to a wadi terrace system in which perennial irri- gation did not play any part65. The different hydrological regime of this estate does not affect my argument, however, because in wadi agricul- ture too the dominant crops have always been tree crops66. The legal and epigraphic evidence, then, confirms what one would expect on a priori grounds, namely that the lex Manciana should not be seen as a monolithic block of regulations that was applied blindly to estates of each and every kind. Instead, Mancia’s collection of provi- sions appears to have been used as a model that could flexibly be
63 J. KOLENDO, art. cit. (n. 9), p. 95; ID., Le colonat (n. 9), p. 40; cf. D. KEHOE, Eco- nomics, p. 141-142. 64 B.D. SHAW, art. cit. (n. 42), esp. p. 83-84. 65 D.J. MATTINGLY, art. cit. (n. 19), p. 408 (arguing against Shaw’s theory that the use of the expression flumen ascendens in one of the Albertini Tablets implies the existence of a system of perennial irrigation; cf. B.D. SHAW, art. cit. [n. 42], p. 81). 66 D.J. MATTINGLY, loc. cit.; cf. B.D. SHAW, Water and Society in the Ancient Maghrib: Technology, Property and Development, AntAfr 20 (1984), p. 149. Again cer- eals were often intercalated as secondary crops. STUDIES IN LEGAL AND AGRARIAN HISTORY 239 adapted to suit the peculiar conditions that existed on individual estates, for example by limiting the right of occupation to land used primarily for arboriculture. It should be noted that this conclusion is in line with Rostovtzeff’s suggestion that all consuetudines praediorum that were based on the lex Manciana were adapted versions of that lex67, although he was wrong in seeing the model arrangement as emanating from the central Roman authorities. The principal aim of this article has been to argue that the lex Man- ciana originated as a lex locationis that laid down regulations for the cultivation of the unused parts of privately owned estates in North Africa. Not long after its creation this lex began to be used on imperial estates. With regard to the inscription from Henchir-Mettich, however, it has been argued that this document should be seen not as instituting an adapted version of the lex Manciana on an imperial estate, but as clari- fying and supplementing the regulations of an estate on which the lex Manciana had been introduced at a much earlier date. A corollary of this new interpretation is that most of the land belonging to the Villa Magna Variana may have been held by Mancian cultivators and, more gener- ally, that a very important function of the lex Manciana was to enable members of the Roman upper class to set up estates on their vast prop- erties in the Bagradas valley and in other parts of Africa Proconsularis.
Universiteit Utrecht L. DE LIGT Instituut voor Rechtsgeschiedenis
67 M.I. ROSTOVTZEFF, op. cit. (n. 12), p. 330-331 and 336.