Tribal states vs feudal states in 10-11th century

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

COLONAʹTUS, COLONI. The Coloni of the later Imperial period formed a class of agriculturists, whose condition has been the subject of elaborate investigation.

These Coloni were designated by the various names of Coloni, Rustici, Originarii, Adscriptitii, Inquilini, Tributarii, Censiti. A person might become a Colonus by birth, with reference to which the term Originarius was used. When both the parents were Coloni and belonged to the same master, the children were Coloni. If the father was a Colonus and the mother a slave, or conversely, the children followed the condition of the mother. If the father was free and the mother a Colona, the children were Coloni and belonged to the master of the mother. If the father was a Colonus and the mother free, the children before the time of Justinian followed the condition of the father: afterwards Justinian declared such children to be free, but finally he reduced them to the condition of Coloni. If both parents were Coloni and belonged to different masters, it was finally settled that the masters should divide the children between them, and if there was an odd one, it p312should go to the owner of the mother. If a man lived for thirty years as a Colonus, he became the Colonus of the owner of the land on which he lived; and though he was still free, he could not leave the land: and a man who had possessed for thirty years a colonus belonging to another, could defend himself against the claims of the former owner by the Praescriptio triginta annorum. A constitution of Valentinian III declared how free persons might become Coloni by agreement; and though there is neither this nor any similar recognition in the Code of Justinian, there is a passage which apparently recognizes that persons might become Coloni by such agreement (Cod. XI. tit. 47 s22).

The Coloni were not slaves, though their condition in certain respects was assimilated to that of slaves; a circumstance which will explain their being called servi terrae, and sometimes being contrasted with liberi. They had, however, connubium, which alone is a characteristic that distinguished them clearly from slaves (Cod. XI. tit. 47 s24). But, like slaves, they were liable to corporal punishment, and they had no right of action against their master, whose relation to them was expressed by the term Patronus (Cod. Theod. V. tit. 11). The colonus was attached to the soil, and he could not be permanently separated from it by his own act, or by that of his patronus or by the consent of the two. The patronus could sell the estate with the coloni, but neither of them without the other (Cod. XI. tit. 47 s2. 7). He could, however, transfer superabundant coloni from one to another of his own estates. When an estate held in common was divided, married persons and relations were not to be separated. The ground of there being no legal power of separating the coloni and the estate was the opinion that such an arrangement was favourable to agriculture, and there were also financial reasons for this rule of law, as will presently appear. The only case in which the colonus could be separated from the land was that of his becoming a soldier, which must be considered to be done with the patron's consent, as the burden of recruiting the army was imposed on him, and in this instance the state dispensed with a general rule for reasons of public convenience.

The colonus paid a certain yearly rent for the land on which he lived: the amount was fixed by custom and could not be raised; but as the landowner might attempt to raise it, the colonus had in such case for his protection a right of action against him, which was an exception to the general rule above stated (Cod. XI. tit. 47 s5). There were, however, cases in which the rent was fixed by agreement.

A further analogy between the condition of Servi and Coloni appears from the fact of the property of Coloni being called their Peculium. It is however, distinctly stated that they could hold property (Cod. Theod. V. tit. 11); and the expressions which declare that they could have nothing "propria" (Cod. XI. tit. 49 s2) seem merely to declare that it was not propria in the sense of their having power to alienate it, at least without the consent of their patroni. It appears that a colonus could make a will, and that if he made none, his property went to his next of kin; for if a bishop, presbyter, deacon, &c., died intestate and without kin, his property went to the church or convent to which he belonged, except such as he had as a colonus, which went to his patronus, who with respect to his ownership of the land is called Dominus possessionis (Cod. Theod. V tit. 3). Some classes of Coloni had a power of alienating their property (Cod. XI. tit. 47 s23).

The land-tax due in respect of the land occupied by the colonus was paid by the dominus; but the coloni were liable to the payment of the poll-tax, though it was paid in the first instance by the dominus who recovered it from the colonus. The liability of the colonus to a poll-tax explains why this class of persons was so important to the state, and why their condition could not be changed without the consent of the state. It was only when the colonus had lived as a free man for thirty years that he could maintain his freedom by a praescriptio, but Justinian abolished this praescriptio, and thus empowered the dominus to assert his right after any lapse of time (Cod. XI. tit. 47 s23). With respect to their liability to the poll-tax, the coloni were called tributarii, censiti or censibus obnoxii, adscriptitii, adscriptitiae conditionis, and censibus adscripti. This term adscriptio appears to have no reference to their being attached to the land, debate it refers to their liability to the poll-tax as being rated in the tax-books, and accordingly we find that the Greek term for Adscriptitius is Ἐναπόγραφος.

As the Coloni were not servi, and as the class of Latini and peregrini hardly existed in the later ages of the Empire, we must consider the Coloni to have had the Civitas, such as it then was; and it is a consequence of this that the they had connubium generally. A constitution of Justinian, however (Nov. 22 c17), declared the marriage of a colonus, who belonged to another person, and a free woman to be void. The Constitution does not seem to mean any thing else than that in this case the Emperor took away the Connubium, whether for the reasons stated by Savigny, or for other reasons, is immaterial. This special exception, however, proves the general rule as to Connubium.

The origin of these Coloni is uncertain. They appear to be referred to in one passage of the Digest (Dig. 30 s112), under the name of Inquilinus, a term which certainly was sometimes applied to the whole class of Coloni. The passage states, that if a man bequeaths, as a legacy, the inquilini without the praedia to which they adhere (sine praediis quibus adhaerent), it is a void legacy. Savigny conceives that this passage may be explained without considering it to refer to the Coloni of whom we are speaking; but the explanation that he suggests, seems a very forced one, and the same remark applies to his explanation of another passage in the Digest (Dig. 50 tit. 15 s4). The condition of the old Clients seems to bear some relation to that of the Coloni, but all historical traces of one class growing out of the other are entirely wanting.

Savigny observes that he does not perceive any historical connection between the villeins (villani) of modern Europe and the Coloni, though there is a strong resemblance between their respective conditions. There were, however, many important distinctions; for instance, the villein services due to the lord had nothing corresponding to them in the case of the Coloni, so far as we know. Some modern writers would hastily infer an historical connection of institutions which happen to have p313resemblances. Littleton's Tenures, section 172, &c., and Bracton (fol. 6. 24), may be consulted as to the incidents of Villeinage.

This view of the condition of the Coloni is from Savigny's Essay on the subject, which is translated in the Philological Museum, vol. II.

The question of the origin of these Coloni is examined at great length by A. W. Zumpt, Ueber die Entstehung und historische Entwickelung des Colonats (Rheinisches Museum für Philologie, Neue Folge, 1845). The author is of opinion that the origin of the institution is to be traced to the settlement of Germanic people by the Roman emperors within the limits of the empire. The earliest mention of Coloni, in the sense in which his essay treats of them, is, as he states, a constitution of Constantine A.D. 321 (Cod. Theod. 9. tit. 21 s1, 2) which, however, gives no information about their condition. But a later constitution of Constantine, A.D. 332 (Cod. Theod. 5. tit. 9, de fugitivis colonis) does give some information. The condition of these foreign settlers being once established, the author supposes that poor Roman citizens might enter into this condition, partly induced by the advantage of getting land, and partly, as he states, though it is not clearly explained, by legal compulsion. A constitution of Theodosius the Younger (Cod. Theod. 5 tit. 4, de bonis militum, s3, ed. Wenck), contains some valuable information on the colonization or settlement of the barbarians, and declares them to belong to the condition expressed by the term Colonatus. The term colonus often occurs in the writers who are excerpted in the Digest (41 tit. 2 s30 §5; 19 tit. 2 s3, 9 §3; 19 tit. 1 s13 §30, and elsewhere); but these Coloni are supposed to be merely a kind of tenants. The passage in the Digest (30 s112) which cites a constitution of Marcus Aurelius and Commodus, is supposed, by Zumpt, to mean ordinary tenants (miether, pächter); but it must be admitted, that it is rather difficult to accept this explanation, as already observed. The word Colonatus, it is stated, does not occur in the Digest; but that negative fact proves little. The most probable solution of the question is, that the condition of the Coloni mentioned in the Digest was the model of the condition of the barbarians who were settled in the Roman empire; and it is no objection to this, that the condition of the barbarians might be made more burdensome and less free than that of the Coloni, who already existed. Nor is it against this supposition, if the condition of the barbarian Coloni gradually became the condition of all the Coloni. The reasons for fixing the barbarian settlers to the soil are obvious enough. The policy of the emperors was to people the country, and to disperse many of the tribes whose union would have been dangerous. If the results of Zumpt's inquiry cannot be admitted to their full extent, it must be allowed, that he has thrown great light on the subject, and probably approached as near as possible to the solution of the difficulty, with the exception of his hypothesis, that the colonatus originated entirely in the settlement of these barbarians. It seems much more probable that the Romans modelled the barbarian settlements upon some institution that already existed, though this existing institution might not be precisely the same as that subsequent institution to which the term Colonatus was peculiarly applied.