The Colonate in the Theodosian Code

and its Interpretation

in the Breviary of Alaric*

ALEKSANDR KOPTEV

The word ‘colonate’ represents the legal position of a colonus tied to his
domicile as seen from the point of view of the Eastern or Western imperial
chancellery. Traditional concepts consider the ‘Roman colonate’ a social or legal
institution of late Antiquity, but even if widely discussed, its origins are not clear
yet. It seems obvious that as an institution of public law, the colonate was
formed in late Antiquity, while coloni as agricultural labourers were known long
before that time.1 Under the early Empire, coloni had no special social or legal
status, and legally they were considered tenant farmers (CIust. 5.62.8 [225]:
“coloni, id est conductores praediorum”) whose relationships with the
landowner were regulated by a private-law contract (locatio-conductio). The real
position of the coloni, especially in the provinces, however, differed from the
favourable legal position of a conductor, because most of them had neither Roman
nor Latin civil status, nor a contract with the landowner, but were long-term
leaseholders whose relationships with their landowners were determined by local
customs (consuetudines) or rules shaped by the Roman administration.2 The

* I gratefully acknowledge the help of Prof. Jean-Jacques Aubert in preparing this paper for
publication, and I thank Ms Megumi Ohsumi for improving my English. I alone bear responsibility for all
remaining imperfections.
1 Johne 1986, 21-27 shows the essential difference between the concepts of colonus and ‘colonate’.
2 Some definitions show that the word colonus had a more common meaning than ‘farmer-tenant’ in
legal texts. Cf. August., De civ. D. 10.1 (CCSL 47.272): “Dicimur enim colere etiam homines, quos
honorifica vel recordatione vel praesentia frequentamus. Nec solum ea, quibus nos religiosa humanitate
subicimus, sed quaedam etiam, quae subiecta sunt nobis, perhibentur coli. Nam ex hoc verbo et agricolae
et coloni et incolae vocantur, et ipsos deos non ob aliud appellant caelicolas, nisi quod caelum colant, non
utique venerando, sed inhabitando, tamquam caeli quosdam colonos; non sicut appellantur coloni, qui
condicionem debent genitali solo, propter agriculturam sub dominio possessorum, sed sicut ait quidam
Latini eloquii magnus auctor: Urbs antiqua fuit, Tyrii tenuere coloni (Verg. Aen. 1.12). Ab incolendo enim
colonos vocavit, non agricultura. Hinc et civitates a maioribus civitatibus velut populorum examinibus
conditae coloniae nuncupantur;” Isid., Etym. 9.4: “Coloni sunt cultores advenae, dicti a cultura agri; sunt
enim aliunde venientes atque alienum agrum locatum tenentes ac debentes conditionem genitali solo
propter agriculturam sub dominio possessoris pro eo quod locatus est fundus.” NIust. 162.2 (539): “(...)
tales homines velle incolas praediorum cultores agrorum manere, utpote ibi genitos: hoc enim sibi vult
262 A. KOPTEV

Constitutio Antoniniana of 212 seems to provide the legal background unifying the
different statuses inside the Roman citizenship. The relationships of landowners
with their coloni were conditioned by the new legal situation, although we do not
know exactly which legal consequences it had.3 The maintenance of the locatio-
conductio in the late antique farming and its role in the formation of the colonate
has continued to engage scholars in discussions.4 Of course, the legal status of
coloni and their real position affected each other, but the changes were made via
the entire legal system rather than directly. The peculiarity of the ‘colonate’ is
that the notion is mainly known from the late imperial legislation collected in the
Theodosian and Justinianic Codes and the new laws (novellae) issued after them.
Actually, the imperial constitutions tell us not of ‘colonate’ but of ius colonatus.5 It
seems to be one of the reasons why Jean-Michel Carrié has recently tried to
define the notion more precisely, while questioning the adequacy of the
traditional concept of the ‘colonate of the Later Roman Empire’.6 Rather than
enslavement of agricultural labourers supported by legal and administrative
tools, the ius colonatus was a conventional notion indicating a new legal reality
developing already during the third century but concretizing in post-classical law
after Diocletian’s reforms of the Roman Empire. A practical background for this
ius, which had long been more like an administrative rule than a real law, was the
new fiscal system, while the legal consequences of its use became apparent not
earlier than the second half of the fourth century or even later.
The late antique codifications of Theodosius II and Justinian had great
importance when new legal phenomena were fixed and new rules of law were
produced. Therefore, during the period of late Antiquity, the legal scholars’ view

coloni appellatio.” Cf. Carrié 1983, 226-28; Johne 1988, 308-21; Cracco Ruggini 1990, 199-201; Giliberti
1999, 72-76.
3 See Panitschek 1990, 137-54.
4 See, for instance, Rosafio 1991, 237-81; Johne 1993, 64-99; Vera 1997, 185-224.
5 On the word ‘colonate’, see CTh. 12.1.33 (342): “privilegia rei privatae nostrae colonatus iure
sectantes;” CTh. 14.18.1 (= CIust. 11.26.1, 382): “eorum vero, quos natalium sola libertas prosequatur,
colonatu perpetuo fulciatur;” CTh. 5.6.3 (409): “ut omnes sciant susceptos non alio iure quam colonatus
apud se futuros nullique licere ex hoc genere colonorum ab eo, cui semel adtributi fuerint, vel fraude
aliquem abducere vel fugientem suscipere;” NVal. 31.1 (451): “is eum vindicet iure colonario serviturum,
penes quem a die primae fugae triginta annorum posteriora tempora concluduntur;” Vict. Vitensis,
Hist.Persecut. 3.20 (MGH AA 3.45); NIust. (app.) 9.4 (558); CTh. 10.20.10 (= CIust. 11.8.7, 380): “originaria
seu colonaria possessionis alienae (= iuri agrorum debitas personas); August., Ep. 24*.1.6 (CSEL 88.126-
127): “possessionis dominus, unde colonatus originem trahit;” NVal. 31.6 (451): “in eorum iure et
dominio, apud quos creati sunt vel creantur, colonario nomine perseverant; nexus, sicut dictum est,
colonarius teneat semper obnoxious;” interpretatio NVal. 35 (452): “mancipia originaria vel colonaria;”
NMai. 7 pr. (458): “colonarum se ancillarumque coniunctione polluerent;” Sidon.Apoll., Ep. 5.19.1-2: “(...)
cliens factus e tributario plebeam potius incipiat habere personam quam colonariam;” CIust. 8.51.3/1.4.24
(529): “nulla macula vel servitutis vel adscripticiae aut colonariae conditionis imbuti;” CIust. 11.48.23.1
(531): “cum autem Anastasiana lex homines qui per triginta annos colonaria detenti sunt condicione.” See
also Johne 1985, 97-100.
6 Carrié 1982, 351-70; 1997, 75-150.
 The Colonate in the Theodosian Code 263

about the colonate underwent most crucial changes and, consequently, the
public opinion regarding its place in the social system of the Empire was likely
to change from time to time. Consequently, the same can also be said of the
Barbarian codes, where the norms of Roman law suffered from editing – the
Breviarium Alaricianum, especially, a collection of Roman laws compiled by the
order of Alaric II, king of the Visigoths, in the year 506. Many texts in the
Breviary of Alaric are combined with, or even replaced by, interpretations.
According to the wide-spread understanding prevailing among nineteenth-
century scholars, it was King Alaric who ordered his lawyers to supply the texts
of the Theodosian Code with their own comments or interpretations.7 Current
Romanists like to think that the interpretations, although they are preserved in
the Breviary of Alaric, had been created before it was issued, in the second half of
the fifth century, i.e. between the issue of the Theodosian Code (438) and the lex
Romana Visigothorum (506).8 However, this specification, if it is true, does not
alter the situation – in any case the late-fifth/early-sixth century was a very
different epoch compared to the late-fourth/early-fifth century, before the
codification of 429-438.
The purpose of my paper is to show the discrepancy between the image of
the colonate presented in the constitutions of the Theodosian Code, and that of the
colonate described by the interpretations of the Breviary of Alaric.9 The purpose
of interpretationes was to elucidate ancient Roman enactments. Imperial
constitutions were frequently written in abstract and florid language; the
interpreter aimed at rephrasing the text more clearly while explaining every
ambiguity. Another purpose was to adapt the text for practical use and to clarify
it not only for lawyers, but also for ordinary citizens. Consequently modern
readers tend to follow the interpretation rather than the original text. If the
meaning of a law is unclear or if a discrepancy between the original text and its
interpretation remains, the latter is often more readily accepted. Modern readers
sometimes assume that the lawyer of 506 was more familiar with the legal
situation of the time for the simple reason that he lived much closer in time.
Looking back at late Antiquity, we often perceive it as a single, uniform period,
as if there was not much change from the time of Constantine the Great to the
epoch of Theodosius II. They were actually very different historical periods,
with drastic shifts in public institutions and legal systems. The same can be said
of the time of the Breviary of Alaric and its interpretationes (ca. 506). As W. Kunkel

7 For previous literature, cf. Wenger 1953, 557, n. 273.

8 Cf. Wieacker 1935, 259-356; 2006, 216, 243, 247-48; Kunkel 2001, 194, 205-7; Kaser 1975, 41-42
and 45. For previous literature, cf. Wenger 1953, 557, n. 274.
9 A comparison of CTh. 5.17.1 (332) with its interpretation in the Breviarium Alaricianum and of CTh.
2.25.1 (325) with CIust. 3.38.11 demonstrates how the interpreted text could be removed from the original
one.
264 A. KOPTEV

emphasized, these interpretations display a vulgarized way of thinking that was

consistent to a small degree only with the spirit of Roman law.10
To illustrate my point, I have chosen to examine an excerpt from the fifth
book of the Theodosian Code concerning coloni and to focus on constitutions dated
to 332, 365 and 419, and on their interpretations in the Breviary of Alaric. Each
constitution is part of a different title within the Theodosian Code. Actually a title,
rather than a constitution, had the role of a law in the Code. The constitution of
332 is part of CTh. 5.17, De fugitivis colonis, inquilinis et servis, dealing with
‘domicile’ and ‘fiscal residence’. The constitution of 419 belongs to CTh. 5.18,
De inquilinis et colonis, which states the landowners’ rights when coloni were
removed, or decided to move, from one estate to another (in analogy with
citizens and incolae of cities). The constitution of 365 forms the title CTh. 5.19,
Ne colonus inscio domino suum alienet peculium vel litem inferat ei civilem (“A colonus shall
not alienate his peculium or institute a civil suit without the knowledge of his
master”).11 Here the status of the colonus’ property was defined.
Constitutions were often joined with a title, not in a complete form, but
fragmentarily, because the Theodosian lawyers only chose from the original text
the fragments useful to illustrate any idea or legal status. Therefore, the original
sense of the fragment of 332 or 365 could essentially be quite different than
what was given in a title constructed during the codification in 429-438.
Sometimes this discrepancy creates some difficulty when translating a Latin or
Greek text into modern languages, because each translation in itself is always a
kind of interpretation.

I. CTh. 5.17.1 (= Brev. 5.9.1) (30 October 332)

The first of the three texts discussed here was addressed by Constantine to
provincials:
Apud quemcumque colonus iuris alieni fuerit inventus, is non solum eundem origini suae restituat, verum super eodem
capitationem temporis agnoscat. 1. Ipsos etiam colonos, qui fugam meditantur, in servilem condicionem ferro ligari
conveniet, ut officia, quae liberis congruunt, merito servilis condemnationis compellantur implere.
Any person in whose possession a colonus that belongs to another is found not only shall restore the
aforesaid colonus to his birth status but also shall assume the capitation tax for this man for the time
that he was with him. 1. Coloni also who meditate flight must be bound with chains and reduced to a
servile condition, so that by virtue of their condemnation to slavery, they shall be compelled to fulfill
the duties that befit freemen.
The preserved fragment consists of several statements: 1) an alien colonus
who is found on the estate must be sent back to his original estate (“eundem

10
Kunkel 2001, 194.
11
The English translation of imperial constitutions from the Theodosian Code and their interpretations
are borrowed from Pharr 1952, 115-17. The title is from the Breviary of Alaric (5.11).
 The Colonate in the Theodosian Code 265

origine suae”); 2) the person who accepted the colonus must compensate his tax
debt (capitatio) for the period that he was with him; 3) the fugitive colonus must be
penalized in the same way as fugitive slaves (“ferro ligari”); 4) after his return,
the fugitive colonus must continue to fulfill his duties (“officia [...] inplere”); 5) the
duties (officia) of a colonus correspond to the duties of free people (“quae liberis
congruunt”).
The expression “origini suae” suggests that the constitution refers to coloni
originales, for whom the estate was considered an alternative of their civil origo. It
is not clear to whom the compensation of the colonus’ capitatio was to be paid, to
the landlord or the imperial treasury. Therefore, little can be said about the
circumstances surrounding the issuing of this constitution and about the
colonate. One point only is clear: coloni who had left an estate should be returned
and punished.12
The current consensus is that the law of 332 neither introduced the fiscal
obligation of coloni nor established their dependent status.13 Because the
constitution provides the earliest evidence of a tie between coloni originales and the
estate they lived on, many scholars – most recently J.-M. Carrié – see the reason
for this in the fiscal obligations of coloni resulting from Diocletian’s reform.14
Boudewijn Sirks thinks that it was an agreement between those coloni who were
forced to cultivate the land and their landlord who took upon himself to
guarantee the payment of taxes.15 Miroslava Mircovic, following Fustel de
Coulanges, depicts the coloni originales as debt-bound coloni, who were already
dependent under the Principate and therefore called iuris alieni.16 However,
Pasquale Rosafio convincingly argued that Mircovic’s view is inconsistent with
the evidence about coloni in the Late Empire.17 Scholars mostly agree that the
coloni in the constitution of 332 are free people, while only the interpretation
regards them as slaves.18 Therefore, in the Code, the phrase “colonus iuris alieni”
refers to a colonus who belongs to the estate of some other landowner, where he
would be colonus originalis, as the constitution orders to “restore him to his birth
status” (“origini suae restituat”).19 “Iuris alieni” indicates that another landowner

12 Goffart 1974, 71-72, assumes that the law of 332 had no aim to prevent coloni from leaving the
estate they were working on, but to compel them to perform their fiscal duties in the place they had been
registered on the tax rolls.
13 Jones 1974, 294; Goffart 1974, 70-75; Eibach 1977, 47-52.
14 Carrié 1983, 217-25; 1997, 96-118.
15 Sirks 1993, 331-69.
16 Mircovic 1986, 53-73; 1997, 47-64.
17 See Rosafio 2002, 129-35, 162-64.
18 See Munzinger 1998, 18.
19 “Origini suae restituat” shows that coloni were tied to their origo rather than to the plot of land they
cultivated, as Munzinger 1998, 28-30 writes. Therefore, in late Antiquity colonus means (see n. 2)
‘inhabitant, resident, dweller’ instead of ‘cultivator of land, peasant’.
266 A. KOPTEV

was responsible for the colonus’ taxes. Indeed, the colonus could be returned to the
estate he had left with no need to notify tax officials of his transfer.
The interpretation of the constitution 332 shows a different picture of a
colonus’ condition:
Interpretatio: Si quis alienum colonum sciens in domo sua retinuerit, ipsum prius domino restituat et tributa eius,
quam diu apud eum fuerit, cogatur exsolvere: ipse vero, qui noluit esse, quod natus est, in servitium redigatur.
Interpretation: If any person should knowingly detain in his own household a colonus that belongs to
another, he shall first restore the man himself to his owner, and he shall be compelled to pay his
tribute for as long a time as the man was with him. But the colonus himself who was unwilling to be
what he had been born shall be reduced to slavery.
The interpreter uses “alienus colonus” as an alternative for “colonus iuris
alieni.” The “alienus colonus” (someone else’s colonus, or the colonus of another
landowner) can be understood as the colonus from the estate of another
landowner or the colonus who belongs to (or is subject to) another landowner.
Which meaning should we choose? Speaking of the return of a fugitive colonus to
the estate, the Code generally uses phrases like “origini suae restituat.”20 It may
mean that the colonus would be returned to his birth place (“solum genitale”) and
to his place of registration (“origo sua”) where he was obliged to cultivate the
land (“ad agrorum cultus”).21 The Breviary uses other phrases like “prius domino
restituat or suum vindicet,” or “sibi … revocetur,” or “a domino revocentur”
which imply that the colonus should be returned to his master (dominus).22 The
landlord of coloni originales, their patronus in the fourth century, became their
master by the beginning of the sixth century.
Especially interesting is the discrepancy between the last statement of the
constitution of 332 and its interpretation. Clyde Pharr translated the text from
the Theodosian Code as follows:

20 CTh. 5.17.1 (332): “origini suae restituat;” CIust. 11.48.6 (366): “ad antiquos penates, ubi censiti
atque educati natique sunt;” CIust. 11.64.1 (386): “ad munera patriae vel ad agrorum cultus;” CIust. 11.63.4
(386): “hi qui eos colentes solum eorum verterant (...) ad avitas condiciones et propria iura revocentur;”
CIust. 11.52.1 (393): “(colonus) originario iure teneatur;” CIust. 11.48.13 (400): “(colonus) ad originem
pertinet vindicandum;” CTh. 4.23.1 (= CIust. 11.48.14) (400): “coloni, (…) necessitatem condicionis
propriae declinare tentaverint, interpretatio: de eorum origine audiatur;” CTh. 5.18.1 (419): “ad solum
genitale (…) repetitus est, loco, cui natus est, (…) restitui, agrorum iuri (…) revocari;” NVal. 35.3 (452):
“colonus fugitivus (...) vinculum debitae condicionis evadat; (...) 6. iugum natalium declinantes, (...) 18.
originis iure et titulo revocari (...) interpretatio: ad condicionem propriam revocetur - debitam
condicionem;” CIust. 1.12.6.5 (466): “ad locum statumque proprium.”
21 On the condicio genitali solo, see Carrié 1997, 88.
22 CTh. 5.18.1 (419): “interpretatio: a domino revocentur; illum, cuius colonus est, (…) mulieris
domino compensare praecipimus; ad eius dominium pertinebit;” CIust. 11.48.18 (426): “in dominorum
iuri;” August., De civ. D. 10.1.2 (CCSL 47.272): “appellantur coloni qui condicionem debent genitali solo,
propter agriculturam sub dominio possessorum;” NVal. 35.6 (452): “in eorum iure et dominio, apud quos
creati sunt vel creantur, colonario nomine;” NSev. 2 (465): “agnationum eorum ad eos dominos pertinere,
quorum inquilinus vel colonus fuisse constiterit;” CTh. 5.19.1 (365): “Interpretatio: dominis coloni in
omnibus tenentur obnoxii;” CIust. 11.48.21 (530): “in domini sui positus est potestate;” NIust. 80.2 (539):
“agricolae aliqui sub dominis constitui sunt;” NIust. 156.1 (?): “in potestate.”
 The Colonate in the Theodosian Code 267

Coloni also who meditate flight must be bound with chains and reduced to a servile condition, so that
by virtue of their condemnation to slavery, they shall be compelled to fulfill the duties that befit
freemen.
The translator was obviously influenced by the Breviary, where the statement
“in servitium redigatur” can be understood as a condemnation of the fugitive
colonus to “slavery” as punishment for running away from the estate.
Consequently the text “in servilem condicionem ferro ligari convenient” is
translated as “must be bound with chains and reduced to a servile condition,”
while it actually means “must be bound with chains as we do with fugitive
slaves.”
Indeed, the fourth-century law distinguished condicio servilis from colonatus
perpetuus in the same manner as the fifth-century law saw a discrepancy between
nexus colonarius and condicio servilis.23 The constitution of 409 prohibited the
possessors who were given the captured Scyrae as coloni from turning them into
slaves.24 In the new law of 458 issued by the Emperor Majorian, children born
from the marriage of a husband-curial and a wife-colona are naturalized in the
curia while children born by a woman-slave from her contubernium with a curial
become members of a board of artisans, “lest the noble class be shamed by the
pettiness of their maternal blood.”25 In other words, in the Western postclassical
law, coloni were not considered equal to slaves even in the second half of the fifth
century.
It means that the constitution of 332 in no way defined the colonus as a slave,
but it emphasized that coloni must be returned to carry out the “duties which
befit free people” (“officia, quae liberis congruent”). In other words, coloni would
be restored to their former, free condition. But they must previously be
punished with chains in the same manner as was done with runaway agricultural
slaves. Such words as servilis condicio and servilis condemnatio were ambiguous and
caused coloni to be regarded as slaves.
Actually, the early fourth-century legislator ordered officials “to chain in
iron” (“ferro ligari”) escaped coloni “as it was usually done with fugitive slaves”
(“in servilem condicionem”). The constitution calls it a punishment befitting
slaves (servilis condemnatio) and has nothing to to with a condemnation to slavery,
as the English translator thought. It seems obvious because in the next text we
read “they shall be compelled to fulfill the duties that befit freemen.”26 Of
course, it does not mean that fugitive coloni were condemned to cultivate the land
in chains and fetters. It meant that they would be chained while being returned
to their original residence. The constitution calls it “punishment befitting a
slave” and justified (merito) by the flight. Thereafter the colonus is expected to

23 Cf. CTh. 14.18.1 (= CIust. 11.26.1) (382) and NVal. 31.6 (451).
24 CTh. 5.6.3 (409). Cf. Munzinger 1997, 18.
25 NMai. 7.2 (458): “ne materni sanguinis vilitate splendor ordinum polluatur.”
26 For another view, see Giliberti 1999, 84-85.
268 A. KOPTEV

fulfill the duties of free people, suggesting that in 332, the fugitive colonus was
considered a free person both before his flight and after his return to the estate.
His shackling sounds like an exceptional, temporary treatment. As J.-M. Carrié
rightly noted, the aim of the legislator was to force coloni to behave in accordance
with their free status, and if necessary, methods used to punish slaves were to be
applied.27 In the Breviary, the situation is understood differently – the fugitive
colonus should be enslaved. In comparison with the original text of 332, the
interpretation shows a striking discrepancy.
Scholars usually consider the constitution of 332 one of the constitutiones
generales. No wonder, therefore, that many see it as the beginning of a new
imperial policy concerning coloni, and a logical consequence of the new tax
system created by Diocletian’s reform.28 Although administrative authorities of
the Eastern provinces were familiar with such issues before, imperial enactments
were addressed to provincial governors and applied within a single province.29 It
is also possible that the constitution of 332 had a limited validity at first, and
acquired the status of constitutio generalis as a result of its inclusion within the
Theodosian Code. This might explain why the constitution of 332 was skipped in
the Justinianic Code: even though it was important for the development of the
colonate, we now have no more than one short fragment of it. What we have is
neither the law of 332 nor the imperial constitution but a fragment edited at least
two times, in the Theodosian Code of 438 and in the Breviary of 506.
The constitution is markedly different from other legislation of the first half
of the fourth century regarding coloni. No other constitution of Constantine
preserves such strict orders to return fugitive coloni. Furthermore, there is no law
before 357 tying coloni to their domicile or land or ordering their return in case of
flight. Only two constitutions of Constantine instruct coloni of imperial estates
not to avoid their agricultural tasks.30 Like most of Constantine’s constitutions
regarding coloni, they concerned farmers on imperial land.31 A common trend in

27Carrié 1983, 207 and 233.

28See Giliberti 1999, 89-98.
29 For instance, the Edict of Septimius Severus and Caracalla 199/200 (P.Oxy. XLVII 3364 =
Thomas 1975, 201-2, l. 1-23). Other texts in Mircovic 1986, 58-59 and 68-69.
30 CIust. 11.68.1 (325): “Nullus omnino originalis colonus rei privatae nostrae ad aliquos honores vel
quaelibet alia civitatis munera devocetur. Nec enim civitatum ordinibus et ceteris, ex quibus pro
multitudine fieri nominationes oportet, per omnia florentibus ad haec suprema praesidia iniuriosa
nominatione descendendum est;” CIust. 11.68.2 (319): “Colonos nostros, qui sunt privati vel ad ratiocinia
gerenda vel ad colendos agros idonei, retrahi iubemus ac tantum colendis nostris rebus addici, quin etiam
in posterum observari, ne quis eorum rem privatam cuiusquam gerendam aut aliquid ministrandum
suscipiat.”
31 CTh. 11.7.2 (319); CTh. 4.13.3 (321); CTh. 9.21.2 (321); CTh. 4.22.1 (326); CIust. 11.63.1 (319);
CIust. 9.24.1 (321); CIust. 11.68.11 (325); CIust. 3.38.11 (325); CIust. 11.50.1 (325); CIust. 8.5.1 (326); CIust.
11.48.1 (328); CIust. 11.68.2 (313/337); CIust. 3.26.7 (313/337).
 The Colonate in the Theodosian Code 269

legislation to limit the activity of imperial coloni to agriculture started already at

the beginning of the third century when Callistratus wrote:32
Coloni quoque Caesaris a muneribus liberantur, ut idoniores praediis fiscalibus habeantur.
Coloni of the Imperial demesnes are exempt from municipal employments in order that they may be
better adapted to the cultivation of the land belonging to the Treasury.
The exemption of imperial coloni from municipal charges made their status so
attractive that many peasants and even decuriones tried to obtain it.33 The notion
of ius colonatus first appeared on imperial estates where labourers were free from
municipal duties (CTh. 12.1.33 [342]), and only later, in the second half of the
fourth century, the status of colonatus perpetuus was extended to private lands.34
This suggests that the constitution of 332 could also apply to imperial coloni.
Constantine’s addressees (provinciales) were possessors of imperial land who
attracted labourers (coloni and slaves35) from neighbouring estates. The
shortening and correcting of the constitution in the Theodosian Code (and possibly
in the Breviary) may have expanded its original meaning and significance. The
original text may have concerned a special group of imperial coloni, whose status
justified such measures as “ferro ligari.” It is known that not long before the
constitution was issued, Constantine had defeated a tribe of Goths who were
then settled on imperial land.36 Already back in the second century Marcus
Aurelius had resettled captured barbarians among possessors as coloni, and this
practice went on until the fifth century, as the constitution about the Scyrae
shows (CTh. 5.6.3 [409]). Unlike this largely preserved constitution, the much
shortened fragment of the constitution of 332 does not allow us to ascertain its
original content. The compilers of the Theodosian Code kept only those sentences
which support the widespread idea that the colonus was bound to the estate where
he lived and was forced to pay his taxes on time. The constitutions addressed to
the provinces of Illyricum, Palestine, Thracia, and Gallia by the emperors, from
Valentinian I to Arcadius and Honorius, show that the idea became established
only by the beginning of the fifth century.37 The removal, in the process of
codification, of most features specific to its original content suggests that the law
was quite different from what is now preserved.38

32 Callistratus (1 de cognit.) Dig. 50.6.6.11. On the text, see Rosafio 2002, 141 and n. 14.
33 Ulpian (2 opinionum) Dig. 50.5.1.2; CTh. 12.1.33 (342).
34 CTh. 14.18.1 (= CIust. 11.26.1) (382); CTh. 5.6.3 (409); NVal. 31.1 (451); Vict.Vitensis, Hist.
Persecut. 3.20 (MGH AA 3.45); NIust. app. 9.4 (558); Greg.Magn., Ep. 4.21 (594) (CCSL 140.239). Cf.
Johne 1985, 98-99; 1988, 318-20; Rosafio 2002, 137-57 and 205.
35 Cf. CTh. 2.25.1 (= CIust. 3.38.1) (325).
36 Brockmeier 1987, 79-100.
37 CIust. 11.53.1 (371); 11.52.1 (393); 11.51.1 (386); CTh. 11.1.26 (399).
38 The comparaison of CTh. 5.18.1 (419) with CIust. 11.48.16 (419) shows that a simple shortening of
the text can modify its meaning while eliminating important nuances.
270 A. KOPTEV

These considerations show that the preserved text can hardly be identified
with the law of 332. The title “Fugitive coloni, inquilini, and slaves” known from
the Breviary (5.9) contains, together with the constitution of 332, the fragment of
the constitution of 386.39 Only these two texts contain the expression “colonus
iuris alieni,” while the interpretations of them in the Breviary of Alaric and the
fragment of the third constitution in this title preserved in the Burgundian Code of
Gundobad (6.2) used a more neutral term, “colonus alienus.” Similarly the
constitution of 409 defines the coloni from the tribe of Scyrae as “alienis censibus
adscriptos vel non proprios colonos.” Likewise, the constitutions in the
Justinianic Code use such phrases as “alienum colonum, alienos fugitivos, alieni
(...) profugi,”40 suggesting that the expression “colonus alieni iuris,” reminiscent
of the persona iuris alieni of classical Roman law, was used here for stylistic effect.
It was acceptable in the second half of the fifth or the beginning of the sixth
century when a colonus’ dependent status was akin to that of a persona alieni iuris,
but the “colonus iuris alieni” in a strictly legal sense is difficult to imagine in the
laws of 332 and 386.41
An analogy for “colonus iuris alieni” is the phrase “mancipium iuris alieni”
in CTh. 7.13.11 (382) and “mancipia iuris alieni” in CTh. 10.12.1 (368/373).42 If
these expressions are used as legal terms, they would be unusual as there could
be no mancipia sui iuris. The legislator may have thought of “mancipia iuris alieni”
as “somebody else’s slaves”, i.e. slaves belonging to another person. Similarly,
the “colonus iuris alieni” in the text of 332 could refer to a colonus from the
estate of another landlord.”43

39 CTh. 5.17.1 (332); 2 (386); 3 (386).

40 CIust. 11.48.8 (371); 11.52.1 (393); 11.53.1 (371).
41 Banaji 1997, 259-60, understands the words “alieni iuris” used in the constitution of 332 in the
light of Gaius (1 inst.) Dig. 1.1.61: “De iure personarum alia divisio sequitur, quod quaedam personae sui
iuris sunt, quaedam alieno iuri subiectae sunt. Videamus itaque de his, quae alieno iuri subiectae sunt: (…)
quae in aliena potestate sunt. Igitur in potestate sunt servi dominorum (…).” Since a persona iuris alieni was
legally subjected to paternal power (paterfamilias or dominus), the colonus is considered part of the patrimony
of a familia. Then, following Steinwenter’s idea (in Steinwenter 1953) that in postclassical law ius often had
the meaning of ‘property’, Banaji states the connection between a colonus alieni iuris and the definition of
Gaius, Epitom. 2.1.1: “Omnes itaque res aut nostri iuris sunt, aut diuini, aut publici. Nostri iuris sunt, quae
in proprietate nostra esse noscuntur.” Thus, speculation has made coloni their landlord’s property, and
Banaji (261) ‘proves’ his point with the quotation of fifth-century texts like CTh. 5.18.1 (419). Similarly,
Mircovic 1986, 60, believes that coloni alieni iuris already existed in Constantine’s time as a separate
category.
42 See Rosafio 2002, 185.
43 When Munzinger 1998, 95-97, writes of the ambiguity of the the term “colonus iuris alieni,” he
appeals to the texts describing a colonus’ condition not in the first half of the fourth century but on the
whole until the epoch of Justinian, without taking into consideration the changes that had happened over
this time.
 The Colonate in the Theodosian Code 271

II. CTh. 5.19.1 (= Brev. 5.11.1) (27 January 365)

From the constitution of Valentinian and Valens to the Vicar of the

province Asia, Clearchus, we also have one short fragment:
Non dubium est, colonis arva, quae subigunt, usque adeo alienandi ius non esse, ut, et si qua propria habeant,
inconsultis atque ignorantibus patronis in alteros transferre non liceat.
There is no doubt that coloni do not have the right to alienate the fields that they cultivate, to the
extent that even if they have any belongings of their own, they may not transfer them to others
without the advice and knowledge of their patrons.
The phrase was excerpted from the constitution by King Alaric’s lawyer to
illustrate the problem of the colonus’ peculium, despite the fact that peculium is not
mentioned in the text itself, but only in the interpretation:
Interpretatio: In tantum dominis coloni in omnibus tenentur obnoxii, ut nescientibus dominis nihil colonus neque de
terra neque de peculio suo alienare praesumat.
Interpretation: Coloni are held obligated to their owners in all things, to such an extent that without
the knowledge of their owners they may not presume to alienate either any of the land or any of their
own peculium.
The wording of the original constitution of 365 drastically differs from that
of its interpretatio. In the constitution, the landlord is called patronus, and the
coloni’s property does not belong to him, although it is under his control. That
coloni could not sell the land which they cultivated seems obvious, as they did not
own it. But what about the “things they may own” (“si qua propria habeant”),
which cannot be transferred to a third party without their landowner’s
agreement? The interpreter of the constitution in the Breviary, who referred to
the landlord as dominus, decided that it concerned both land and peculium, i.e.
other property except the land.44 Although this is not suggested by the text, it is
taken for granted in modern scholarship.
The preserved text has been regarded as a constitutio generalis and read as a a
ban on coloni from alienating both land and other property.45 In earlier literature,
historians likened coloni with slaves.46 Recently, Walter Goffart saw in the law of
365 (CTh. 5.19.1) a reinforcement of a law of Diocletian (CIust. 7.32.5
[290/293]), barring tenants from selling their property without the landlord’s

44 Following the interpretation, Munzinger 1998, 99-100, speculates that the constitution of 365
made no reference to peculium – coloni were deprived of their right to trade their movable property or their
land. In his opinion, as of 365 coloni could not own property but could only dispose of a peculium.
However, this peculium differed from servile peculium – the state imposed a fine on it as if coloni were
citizens (CTh. 16.5.54 [414]). The property of muliones (CTh. 7.14.1 and 8.5.58 [398]), navicularii (NVal. 29.1
[450]), suarii, boarii, pecuarii (NVal. 36.8 [452]) was also referred to as peculium. Anastasius (491-518) was the
first Emperor to approve the fact that the peculium of a colonus adscripticius belonged to his landlord (CIust.
11.48.19 = Basilika 55.1.19). Cf. Munzinger 1998, 101-4.
45 See Eibach 1977, 24; Munzinger 1998, 98; Rosafio 2002, 184.
46 For the literature, see Eibach 1977, 24, n. 48.
272 A. KOPTEV

consent.47 This law merely expanded CIust. 4.65.5 (223), which asserted that
when a farm or house was leased, what the lessee brought with him was handed
over to the landlord “pignoris iure.”48 According to Boudewijn Sirks, peculium
refers in this context to what a colonus was not entitled to dispose of. The
landlord could not take it and sell it at his wish either.49 By contrast, Michael
Munzinger followed the opinion of previous scholars in believing that coloni
became equal to slaves because a slave could sell his peculium with the permission
of his master (libera administratio peculii).50 As Sirks noted, Munzinger’s
interpretation of peculium as a pledge is questionable, as he did not truly
recognize the legal situation of the person with peculium.
The constitution of 365 does not deal with peculium; the text was included in
the title with a meaning constructed by the interpreters of 506. In the original
text of the constitution, it was necessary to specify that coloni were not to transfer
the land without informing their landlord, not so much because the latter had
any right to the land but because he could ascertain that it was not his land, but
the coloni’s that was sold. In the constitution of 365 most consideration was
given to the land owned by coloni (“arva [...] si qua propria habeant”) in addition
to the land taken for cultivation on lease (“arva, quae subigunt”). In other
words, the constitution allows coloni to have two types of land: 1) their own land;
and 2) the land to which they are attached as tenants (“arva, quae subigunt”).
Neither of them is called peculium.
Peasants who were small landowners and paid taxes themselves are known
to have sometimes held on lease someone else’s land and would then be called
coloni.51 When such coloni wanted to sell their own land, their landlord’s consent
was required as a safeguard against the sale of his property and against
usurpation of his land as a result of “praescriptio temporis.”52 Legal historians
logically concluded that coloni were still free to dispose of their land after 365,
and that their status had not worsen.53 Thus, the deletion of this part of the
constitution changed the whole meaning. Coloni, who cultivated both their own
land and leased land were converted, in the shortened fragment, into “originarii
alieni fundi.” The extant part of the constitution of 365 indicates that coloni
wanting to sell their own land needed to inform their landlord. Does it imply
that their property was akin to peculium controlled by the landlord?

47Goffart 1974, 77, n. 34; Krause 1987, 96, n. 59. Cf. Munzinger 1998, 98-99; Rosafio 2002, 184.
48CIust. 4.65.5 (223): “Certi iuris est ea, quae voluntate dominorum coloni in fundum conductum
induxerint, pignoris iure dominis praediorum teneri. Quando autem domus locatur, non est necessaria in
rebus inductis vel illatis scientia domini: nam ea quoque pignoris iure tenentur.”
49 Sirks 1993, 365, n. 120.
50 Munzinger 1998, 100, n. 47.
51 CTh. 12.1.33 (342); CTh. 11.1.14 (= CIust. 11.48.4 (366/371). Cf. Rosafio 2002, 184.
52 Coloni tried to do that under Diocletian, see CIust. 7.32.5 (290/293); cf. also CIust. 7.30.1 (226),
CIust. 39.2 (365), in the same manner as coloni under Justinian, see NIust. 24 (536).
53 Krause 1987, 96; Sirks 2003, 85.
 The Colonate in the Theodosian Code 273

However, the constitution of 365 may have referred to coloni akin to those
coloni indigenae of the African Saltus Burunitanus. According to the lex Manciana,
African coloni had “usum proprium” on the land they cultivated in addition to
the land they held on lease from their landlord (possessor or emphyteuticarius).54 A
lex Hadriana gave such coloni the “ius possidendi ac fruendi heredique suo
reliquendi” on cultivated plots called subsiciva.55 The Albertini Tablets show that
coloni preserved the right to culturae mancianae even in the late fifth century.56 The
right to use additional land means that the land could be inherited by the coloni’s
children but could not be sold to anyone outside the estate. Actually, the right
belonged to the landlord, and could be considered additional peculium in case the
land cultivated by the colonus was to be regarded as peculium. The fragment of the
constitution of 365 does not state that the land is peculium of the coloni, as
inferred in the interpretation of 506.
According to the Justinianic Code, the term peculium began to be used about
coloni by the second half of the fourth century,57 but the earliest constitutions
were obviously corrected by the editorial committee. In the Theodosian Code a
colonus’ property started to be regarded as peculium by the early fifth century.58 It
is therefore not surprising that peculium does not show up in the constitution of
365. In Roman law, peculium is the property of a person in power (in potestate or in
dominio). Therefore, the occurrence of the word peculium suggests that the law
allowed coloni to be considered persons who were legally subjected (personae alieni
iuris). However, the Codes show that initially peculium, as referring to the coloni’s
property, did not reflect any status familiae but merely signaled that coloni’s
property was under the landlord’s control and had a lower status than the latter’s
property.
This idea is present in a constitution of Arcadius to Nebridius, comes of the
province of Asia (22 July 396), where we find one of the earliest records of a
colonus’ peculium.59 Munzinger saw in this constitution a development of the
principles which were introduced by a law of Valens in 365 (CTh. 5.19.1) – the
starting-point was the prohibition for coloni to sell their own land which finally
led to the ban on any transfer of property. As a result, the relationship between
coloni and their landlords lost its former private-law character since coloni now

54 CIL VIII 25902: “eis eos agros qui subsiciva sunt excolere permittitur lege Manciana (...) ita ut eas
qui excoluerit usum proprium habeat.” Cf. Kolendo 1976, 50-51.
55 CIL VIII 26416, col. II, ll. 7-13. Cf. Flach 1978, 484-86; Id. 1988, 450-51; Kehoe 1988, 55-63; Vera
1986, 270-72.
56 Courtois 1952, 196: “particellae agrorum ex culturis suis mancianis sub dominio Flavi Gemini
Catullini flaminis perpetui.” Cf. Ørsted 1994, 115-25; Kolendo 1997, 151-61.
57 CIust. 11.48.8 (371); 11.52.1 (393); 11.50.2 (396); 1.3.20 (434); 1.2.14.1 (470); 11.49.19 (491/517);
NIust. 128.8 (545); 162.2 (539).
58 CTh. 16.5.54 (414); 5.18.1 (419); 5.3.1 (434); NVal. 27.4 (449); 35.6 (452); CTh. 5.19.1 (interpretatio)
(365).
59 CIust. 11.50.2 (396).
274 A. KOPTEV

dealt not with ownership but with peculium, suggesting that by the beginning of
the fifth century coloni had become personae alieni iuris.60 Besides, according to a
widespread opinion, the constitution of 396, alongside with the restriction on
coloni’s right to their property, prohibited coloni from suing their landlords except
for physical violence and excessive taxation.61
Dieter Eibach, however, has linked the constitution of 396 with the
constitution of 371 which granted landowners the right to force their coloni to
fulfill their duties toward the state (autopragia).62 Eibach thought that in 396 coloni
were deprived of their right to take legal action against such compulsion. Thus,
the constitution would have introduced no new right for coloni and had no
influence on their status.63 For the late fourth century, this seems quite possible.
The extant text, with coloni sharing the same legal status as slaves and libertines
with regard to their landlords, looks like the product of creative work on the
part of Justinianic lawyers. Actually, the constitution of 396 granted the colonus
under the patronage of his landowner the right to sue him for superexactio.
Thereby the colonus’ property was protected by a special action never heard of
before. The problem of superexactio existed earlier, as shown by a constitution of
Constantine to the Vicar of Orient (CIust. 11.50.1 [325]), but complaints against
excessive taxation did not amount to a breach of contract or custom (consuetudo)
before landlords took control of the fiscal duties of their tenant farmers and
hirelings.
Despite the attractive clarity of its definitions, the constitution of 396 was
not included in the Theodosian Code.64 Therefore, there are reasons to doubt the
authenticity of most of the text, as internal contraditions are obvious. Only the
first and last provisions possibly belong to the original text of 396, while the rest,
conspicuous for its rhetorical style, is the work of Tribonian’s committee and
reflects later conditions. The specific restriction concerning the coloni’s right to
bring an action against their landlord, extant in the original constitution of 396,
was used in the Justinianic Code to reconstruct their status with severe rights
restrictions. Similar rules governed the relationship of slaves and freedmen with

60Munzinger 1998, 99, 100-1. For another interpretation, see Eibach 1977, 24-34; Sirks 2003, 85.
61Clausing 1925, 20-22; Collinet 1939, 604; 1937/1959, 96; Ganshof 1945, 263; Kaser 1975, 101, n.
47; Jones 1964, 796 and 807; Goffart 1974, 69; Held 1974, 104; Demandt 1989, 331; Munzinger 1998,
110-19.
62 CTh. 11.1.14 (= CIust. 11.48.4) (366 [371]): “Hi, penes quos fundorum dominia sunt, pro his
colonis originalibus, quos in locis eisdem censitos esse constabit, vel per se, vel per actores proprios,
recepta compulsionis sollicitudine, implenda munia functionis agnoscant. Sane quibus terrarum erit
quantulacunque possessio, qui in suis conscripti locis proprio nomine libris censualibus detinentur, ab
huius praecepti communione discernimus; eos enim convenit, propriae commissos mediocritati,
annonarias functiones sub solito exactore agnoscere.” On autopragia and colonate, see Gascou 1985, 38-52;
Carrié 1997, 107-18; Sirks 1993, 336-42.
63 Eibach 1977, 26-27.
64 Munzinger 1998, 110, supposes that the constitution of 396 belonged to the same title (5.19) as the
constitution of 365 in the Theodosian Code.
 The Colonate in the Theodosian Code 275

their master or patron.65 Apparently, the lawyers in Justinian’s time tried to

consider a colonus as part of his landlord’s familia, alien to a person in power
(persona iuris alieni).66 Such persons could not testify against their master because
they did not enjoy a distinct juristic personality and any action brought against
their landlord would be tantamount to an action brought against themselves.
The well-known example of Libanius (Or. 47) who lost a case to his coloni (georgoi)
shows that they quite successfully acted in court against their landowners at the
end of the fourth century. The situation actually remained the same until the
530s.67 Two constitutions issued by Justinian in 529 show that the coloni applied
to the court challenging their dependent status68 and even their landlord’s right
to the cultivated land.69 Ten years later they continued to arrive in the capital in
large numbers in order to bring a suit against their landlords. The quaestor was
ordered to send them away quickly, only two or three being allowed to stay for
the judicial proceedings.70
These examples show that the constitution of 396 barred coloni from using
the judicial system except in cases involving them personally, their family, their
property, and their relationship with their landlord. In other words, they lost the
right to participate in civil life outside their estate.71 In exchange, they received a
special action for superexactio and iniuria. The lawyers on Tribonian’s committee
used the text of the constitution in their own interest and regarded the colonus as
a persona alieni iuris. The idea that colonus and landlord were socially unequal does
not fit the fourth century, a period for which we have evidence for the ban on

65 CIust. 3.1.6 (239); 3.41.5 (294); 4.20.8 (294); CTh. 9.6.2 (376); 10.10.17 (382); 9.6.3 (= CIust. 9.1.20)
(397).
66 Household, freedmen and slaves could not testify against their dominus and patronus (Paul., Sent.
1.12.4). The status of coloni with regard to their landlord is akin to that that of clients or freedmen (liberti
loco). See Sirks 1993, 347.
67 Cf. Symm., Ep. 7.56; CIust. 4.21.19 and 11.48.20 (529). Munzinger 1998, 115-16.
68 CIust. 4.21.19 (529): “Plures, apochis vel redituum vel usurarum perceptis, si quando super his
fuerit dubitatio exorta, eas habere negando ius agentium faciunt vacillare, cum coloni ad dominum
certantes et sibi iniquam forte libertatem vindicantes vel debitores creditoribus suis temporalem
praescriptionem opponere cupientes ad easdem infitiationes perveniunt (…).”
69 CIust. 11.48.20 (529): “Litibus imponentes celeritatem sancimus, si quando coloni cuiuscumque
condicionis contra dominos terrae declamaverint super hoc ipso dubitantes, utrum is terrae dominus est
nec ne (eos tamen dicimus, qui non ex longo prolixoque tempore vel longinqua et inveterata redituum
susceptione sufficientem habent cautelam, in quibus casibus ne contradicendi quidem licentia colonis
relinquitur, longi temporis praescriptione vel redituum frequentissima consequentia colonorum impetus
excludente): talem esse super redituum vel publicarum functionum praestatione formam censemus, ut, si
tales coloni, quales supra diximus, idoneum fideiussorem totius summae quae ab his dependitur
praestiterint, quod omnes reditus sine ulla procrastinatione, si melior causa dominorum iudicetur, eis
restituent, et talis fideiussor per triennium accipiatur eoque impleto iterum renovetur, coloni in medio
nullo modo super reditibus a dominis inquietentur (...).”
70 NIust. 80.2 [539]. Munzinger 1998, 112 considers that the coloni’s (γεωργοὶ
 τελοῦντες
 ὑπὸ

δεσποτείαν, “agricolae aliqui sub dominis constitute”) petition was directed against superexactio, because
they were barred from all other actions by the constitution of 396.
71 Munzinger 1998, 116, notes that there is no evidence of coloni bringing a suit against a third party.
276 A. KOPTEV

coloni from transferring land, though not other property, without their landlord’s
consent.72 But coloni did not own the land, so that legally they could not sell land.
Consequently, fourth-century lawyers could hardly have used such arguments 73
which were more suitable for the time of Justinian, when the status of coloni
adscripticii was finally established: their property was called peculium.
Before the sixth century, the law never defines the land cultivated by coloni as
peculium, as is often implied in modern scholarship.74 Peculium refers to a colonus’
belongings except for land.75 Some constitutions order that fugitive coloni and
their children and peculium be restored to the estate: peculium obviously means
movable property, not land.76 When Honorius ordered the Proconsul of Africa
in 414 to fine coloni who belonged to the Donatist church at a rate of one third
of their peculium, he stressed that the fine was to be paid by the coloni
themselves.77 At the time of the codification of 429-438, peculium may have
shifted closer to its legal meaning, while it previously was merely a common way
to refer to the property of lower-class people. One of the extant fragments of
the constitution of 422 explains that a landlord cannot be responsible for the
debts of his slaves, coloni, conductores, procuratores and actores.78 Creditors were
allowed to bring an actio de peculio against the actor, slave, and procurator, provided
that they were not indebted to their master; colonus or conductor were not included,
suggesting that the actio de peculio did not bear on their peculium.79 Eventually, in a
vulgarised version of this text in the Edict of Theodoric, the actio de peculio was
extended against both coloni and conductores, which would have been impossible in
classical Roman law as far as the latter were concerned.80

72 CIust. 7.30.1 (226); CIust. 7.32.5 (Diocl.); CTh. 4.22.1 (= CIust. 8.5.1) (326); CTh. 5.19.1 (365); CIust.
7.38.2 (387); CTh. 2.30.2 (= CIust. 8.15.8) (422); CIust. 11.48.17 (422).
73 In theory there was a tendency to emphasize that coloni were not owners. According to Pomponius
(23 ad Quintum Mucium) Dig. 41.2.25.1: “per colonos et inquilinos aut servos nostros possidemus.” In the
constitution of 396, the same statement was given another meaning – coloni were not even owners of their
property, the owner could be their landlord only. At the same time, the definition of Isidore of Seville
(Etym. 5.25.4-5) shows the term peculium did not change its legal meaning: “Peculium proprie minorum est
personarum sive servorum. Nam peculium est quod pater vel dominus filium suum vel servum pro suo
tractare patitur. Peculium autem a pecudibus dictum, in quibus veterum constabat universa substantia.”
74 Clausing 1925, 20; Schrot 1965, 210; Günther 1967, 267; Brockmeyer 1968, 216; Held 1974, 100.
75 See CIust. 11.48.8 (371); CIust. 11.52.1 (393); CIust. 11.50.2 (396); CTh. 16.5.54 (414); CTh. 5.18.1
(419); CIust. 1.3.20 (434); CTh. 5.3.1 (434); NVal. 27.4 (449); NVal. 35.6 (452); CIust. 1.2.14.1 (470); CIust.
11.49.19 (491/517); CTh. 5.19.1 (interpretatio) (365/506); CIust. 11.48.23.5 (531/534); NIust. 128.8 (545);
NIust. 162.2 (539).
76 CIust. 11.52.1 (393); CTh. 5.18.1.2 (419); NVal. 27.4 (449); CIust. 11.48.23.5 (531/534).
77 CTh. 16.5.54 (414). Cf. Munzinger 1998, 100, n. 48; and 120.
78 CTh. 2.31.1 (422); CTh. 32.1 (= CIust. 4.26.13) (422). On this constitution, see Fusco 1974, 609-28;
Munzinger 1998, 105-7.
79 Although it is impossible to call the arguments of Munzinger 1998, 108-9 concerning the
constitution of 422 a great success (see Sirks 2003, 85), it nevertheless seems necessary to agree with his
conclusion that before Justinian, the actio de peculio did not concern coloni.
80 Edictum Theodorici 121 (500): “Si procuratori vel conductori, sive colono vel servo alicuius, invito vel
nesciente domino, mutuam pecuniam quis dederit, nec ipsi domino, nec rei eius aliquod praeiudicium
 The Colonate in the Theodosian Code 277

The making of the Theodosian Code provides a turning point in the

development of the status of coloni: the question arose then of how many years a
labourer must live on the estate in order to become a hereditary colonus
(originarius). Roman lawyers had no legal model to construct a new status for
coloni, by then distinct from other tenants; the status of coloni changed during the
fourth century and lawyers tried to account for it using definitions of classical
law. Therefore, the legal terminology used in fourth-century constitutions in
reference to coloni may lack accuracy.
The law caught up with the fiscal, administrative, and social changes of
previous centuries only in 419, when the principle of longi temporis praescriptio was
extended to coloni originales and inquilini (CTh. 5.18.1). It was first tested in
reference to members of imperial artisan boards in 400 (CTh. 11.19.1-3). Later
on, the novellae 27, 31 and 35 of Valentinian III (447-452) would deal with a new
distinction between hereditary colonus (originarius) and newcomer (advena) to the
estate, as labourer or tenant farmer, eventually defined under Zeno (476-491)
and Anastasias (491-518) as adscripticii and coloni liberi. It was a historical moment
when the belongings of originarii and adscripticii received the status of peculium and
were considered a detentio of persons in power (alieni iuris) in classical law. The
lawyers around Alaric and Justinian only had to account for this development
and the new reality, and used to this effect the categories of classical Roman law.
It was only then that the concept of peculium as an institution of Roman law was
extended to everything used by coloni: land, farm animals, and household goods.
This created new problems to be addressed by Justinian’s laws. The purchase
of land by coloni was now considered an increase of their peculium, available to
persons in power on the condition of the “tacit consent” (“nudo consensu”) of
their landlord.81 Consequently, if a colonus was sued on his peculium, his landlord
was only liable to the extent of the peculium.82 Fourth-century landowners often
tried to sell their land without the slaves and coloni who cultivated it, while in the
sixth century, on the contrary, coloni tried to sell their master’s land as their own,
or to force the latter to pay taxes due on the coloni’s land.83 In the same way,
slaves had previously tried to make their master liable for their contracts.84
Thus, the constitution of 365 and its interpretation of 506 reflect two
distinct views about the status of coloni’s property. This explains the formal
differences between the constitution (“si qua propria,” “inconsultis atque
ignorantibus patronis”) and the interpretation (“peculium,” “nescientibus
dominis”). The interpretation was certainly written in a specific mindframe:

comparetur: sed ex peculio servi vel coloni, considerata vel servata prius indemnitate domini, consulatur
petitionibus creditoris.”
81 Ulpian (29 ad ed.) Dig. 14.4.1.3.
82 CIust. 4.26.12 (290); and 4.26.13 (422).
83 NIust. 24 (536); and 128.14 (545).
84 CIust. 4.13.5 (294); and 4.26.12 (294); CTh. 2.30.2, 2.31.1, and 2.32.1 (422).
278 A. KOPTEV

“Without the knowledge of their master, the coloni must not sell anything, neither
from the land, nor from their peculium.” Peculium here refers to any possessions of
the coloni but land. The prohibition to dispose of one’s own possessions meant
that the colonus had no property rights anymore. Therefore the Breviary states that
coloni are “completely dependent in every aspect on their masters;” this outlook
is missing in the constitution. Thus, the peculium of coloni attests the changes in
their personal legal status. Actually, the Edict of Theodoric and the Breviary of Alaric
translate into law the situation of coloni in Italy as it had developed after the
promulgation of the Theodosian Code. The Justinianic Code did the same for the the
Eastern Empire.

III. CTh. 5.18.1 (= Brev. 5.10.1) (26 June 419)

The constitution addressed by Honorius to Palladius, the Praetorian Prefect

of Gauls, was issued around the time of the beginning of the process of change
in the status of coloni:
Si quis colonus originalis vel inquilinus ante hos triginta annos de possessione discessit, neque ad solum genitale silentii
continuatione repetitus est, omnis ab ipso, vel a quo forte possidetur, calumnia penitus excludatur quem annorum
numerum futuris quoque temporibus volumus observari. 1. Quod si quis originarius intra hos triginta annos de
possessione discessit, sive per fugam lapsus, seu sponte seu sollicitatione transductus, neque de eius condicione dubitatur,
eum, contradictione summota, loco, cui natus est, cum origine iubemus sine dilatione restitui. 2. Quod si forte ipse, de
cuius proprietate certatur, fatali sorte consumptus est, eius posteritatem agrorum iuri cum omni peculio atque
mercedibus, velut eo superstite, qui decessit, celeri iubemus exsecutione revocari. 3. In feminis sane observationem
volumus esse diversam. Itaque mulierum, quae fuisse originariae docebuntur, si ante vicesimum annum de solo, cui
debebantur, abscesserint, universa repetitio cesset; earum vero, quarum intra comprehensum tempus discessio
comprobatur ac de condicione nulla dubitatio est, prorsus dominis perire non sinimus, ea tamen condicione servata, ut
vicaria cum agnatione partis tertiae non negetur, quae de colono suscepta est alieno, ita ut pro filiis quoque contrarii
praebeantur. 4. Quod si non ad alienum praedium, sed cuiuscumque liberi hominis ac sui iuris secuta consortium in
urbibus vel in quibuscumque locis victura consistit, si modo intra praefinitum tempus reposcitur, eius omnem originem
secundum vetera constituta conveniet revocari. 5. Contestatas autem lites, si tamen quisquam docebitur solenniter fuisse
conventus, salvas repetentibus esse decernimus.
If a person who is a colonus or inquilinus by birth status has departed from a landholding thirty years
before and if, though a continuous period of silence, he has not been brought back to his native soil,
every unfounded action against him or the person who perchance now possesses him shall be
completely excluded. It is Our will that this same number of years shall be observed likewise for
future times. 1. But if within this period of thirty years any colonus by birth status has departed from a
landholding, whether he escaped through flight or was abducted by his own wish or through
solicitation, and if there should be no doubt concerning his status, We order that all controversy shall
be removed and that he, together with his family, shall be restored without delay to the status to
which he was born. 2. But if perchance the man whose ownership is contested should be destroyed
by the lot of fate, We command that, with swift execution of the order, his offspring shall be recalled
to the legal claims of the fields, along with all their belongings and wages, just as though the man
who had died were surviving. 3. In the case of women, to be sure, it is Our will that there shall be a
different regulation. Thus if women who are proved to be colonae by birth status have departed twenty
years before from the land to which they were obligated, all right of recovery shall cease. But We do
not permit the owners to lose their right to recover those women who are proved to have departed
within the aforementioned period of time and concerning whose status there is no doubt. However,
this condition shall be observed, namely, that a substitute woman shall not be refused, together with
a third part of the offspring of the fugitive colona, that have been begotten by a colonus belonging to
 The Colonate in the Theodosian Code 279

another, provided that substitutes for the children may also be furnished. 4. But if such woman did
not settle upon another person’s landed estate, but obtained a union with a man who is free and
legally independent, with the intention of living in the city or in any other district, and if her return is
demanded within the specified time, in accordance with the ancient constitutions, all her progeny
shall be recovered. 5. Moreover, We decree that in the case of persons that seek recovery, their suits
when once attested shall be valid, provided that they prove that they have formally instituted an
action.
As peculium is mentioned and people unattached to an estate, like coloni
(“colonus originalis vel inquilinus”), are called “free” and “person in their own
right” (“liberi hominis ac sui iuris”), it would seem that by then (419) coloni had
already ceased to be free and “in their own right.” As one can see in an earlier
constitution (386) for Palestine, coloni no longer had the right to change their
domicile.85 According to Munzinger, by 419 coloni originales had become personae
iuris alieni whose property was called peculium and who, like slaves, had to marry
at their master’s will. It seems, however, that the constitution of 419 has another
meaning.86
The constitution deals with problems which arose from marriages between
coloni originating from the estates of different landlords when one spouse moved
to live on the other estate. At the beginning of the fifth century, the law
established the basic rule of such marriages: longi temporis praescriptio. If the
landlord of the colonus/-a lost a labourer and did not report it to the chancellery
of the provincial governor (rector) over the next 30 (or 20) years, he would be
deprived of his right over him: the fugitive colonus would then remain in his new
domicile.87 If the report was filed before the deadline expired, the colonus/-a
would be returned to the estate from which he/she originated. The children
born from this union would follow their father (“loco, cui natus est, cum origine
… restitui”), as is proper in a legitimate union. What would happen to the
colonus’ wife? The constitution does not say it explicitly. As a rule, it
recommended that, had the colona moved in with her husband, their union
should not be dissolved and the children should remain with their parents, even
though the 20-year deadline had not yet expired. Scholars often thought that the
constitution proposes the factual division of the coloni’s offspring.88 Following
them, Munzinger assumed that the marital bond between such coloni was not
regarded as a legal marriage and that the constitution introduced important
changes into the marriage law for coloni.89
The law did not call for splitting families, with two thirds of the children
following the father and one third the mother. But to protect the landlord’s

85 CIust. 11.51.1 (386): “ut etiam per Palaestinas nullus omnino colonorum suo iure velut vagus ac
liber exsultet.”
86 CTh. 5.18.1 (= Brev. 5.10.1) (419). Munzinger 1998, 69-70.
87 For more details, see Rosafio 2006, 233-47.
88 See Collinet 1939, 606; Saumagne 1937, 538; Eibach 1977, 63.
89 Munzinger 1998, 69-70.
280 A. KOPTEV

interest, the law gave the latter compensation for the lost colona and for one third
of her children. Two thirds of the children belonged to the landowner on whose
estate they had been raised, and one third to the other, from whose estate their
mother originated but who did not have to invest in their education. The
legislators may have considered it fair that the new landlord of the colona had a
greater share of labourers from coloni’s offspring because they were born and
brought up on his estate. In the constitution there is no mention of division of
offspring: all children remained with their parents, and landlords vied for the
benefits derived from the coloni’s children as future labourers on their estates.
The legitimacy of the marriage of coloni is also discussed in the last part of
the constitution. Munzinger takes a partial look at the situation, so his
conclusion is unconvincing and possibly incorrect.90 The constitution considers
two variants of the marriage of a colona with a free and independent man (“liberi
hominis ac sui iuris”), who was not attached to any estate. If their union was
cohabitation (consortium), their children belonged to the mother (colona) and
would have to follow her. Unlike the colonus, the free spouse could change his
domicile at his own discretion and decide whether to follow his wife and
children to the estate she was returned to, or to renounce his relationship with
her. However, the situation is different if it appears that an independent citizen
and a colona contracted a legitimate marriage (“solenniter fuisse conventus”).
Nobody could dissolve such a marriage against their will, and the colona and her
children would remain with her husband.91
A very different approach to this problem was adopted a hundred years later,
in the interpretation of the Breviary of Alaric (5.10.1) and the fragment included in
the Justinianic Code (CIust. 11.48.16 [419]). According to the interpretation of 506,
a marriage between coloni was indeed considered different from a marriage
between free people:
Si quis colonum alienum in re sua vel in fuga lapsum vel sua voluntate migrantem triginta annos habuerit, ac si suum
vindicet. Qui si intra triginta annos inventus fuerit a domino, cum filiis secundum legem sibi debitis et omni peculio
revocetur. Quod si forte mortuus fuerit, filii eius cum mercedibus suis vel patris mortui a domino revocentur. Colona
etiam si viginti annis in alieno dominio et iure permanserit, a priore domino non requiratur; si tamen intra viginti
annos inventa fuerit et de alieno colono filios susceperit, cum agnationis parte tertia revocetur: quia colonum duae partes
agnationis sequuntur. Sane ne separatio coniugii fiat, illum, cuius colonus est, vicariam mulierem et pro tertia agnatione
mulieris domino compensare praecipimus. Si vero mulier iuris alieni ingenuum maritum duxerit, omnis mulieris agnatio
ad eius dominium pertinebit. Quod hic minus est de colonae agnatione, in novellis legibus invenitur.
Interpretation: If any person should hold for thirty years on his own property another person’s
colonus, who either escaped by flight or departed of his own will, he shall have the right to vindicate
him as his own. But if such colonus should be found before the end of the thirty years, he shall be
recovered by his owner, along with the children which are owing to him according to the law and his

90See Munzinger 1998, 69-70.

91 CTh. 5.18.1.5. A similar solution prevailed in the case of a marriage between persons of unequal
status, such as Roman and Latin citizens. If the Roman citizen was mistaken concerning the status of his
bride at the time of the wedding, and if this could be proven in court, both the wife and children received
Roman citizenship (Tituli ex corpore Ulpiani 1.7.4).
 The Colonate in the Theodosian Code 281

entire peculium. But if perchance he should die, his children shall be recovered by the owner, along
with their wages and those of their deceased father. Likewise if a colona should remain for twenty
years under the dominion and ownership of another person, her return shall not be demanded by her
former owner. But if she has been found before the end of twenty years and if she has children by a
colonus of another person, she shall be recovered along with a third of her offspring, since two thirds
of the offspring follow the colonus. Surely, in order that dissolution of a marriage may not occur, We
order that the person to whom the colonus belongs shall furnish to the owner of the colona a substitute
woman and compensation for a third of her children. But if a woman belonging to another should
marry a freeborn man, all of her offspring shall belong to his ownership. (Whatever is lacking here
about the offspring of a colona is found in the Novels.)
Transitional norms, shifting at the beginning of the fifth century between
civil law and the law of the land (ius agrorum), were adapted and simplified in the
Breviary in order to meet the practical needs of the Romano-barbarian society of
the sixth century. The theoretical possibility of breaking the marriage of coloni
and of dividing their offspring is raised only here. The law offered the colona
some compensation and the right to keep a third of her children, surely not out
of respect for the coloni’s rights, but as a strategy aimed at protecting the families
of dependent coloni in the same manner as classical Roman law protected slave
families in the early Empire. In the sixth century, the families of coloni were also
supported and protected by the government; however, Tribonian’s legal reforms
made the separation of children from their parents acceptable.
The use of the last part of the constitution of 419 in the West-Gothic
kingdom and Byzantium was not accidental. The sixth-century commentators
viewed the variant of the marriage of a colona with a free man more suitable to
their society. The Breviary reads:
Si vero mulier iuris alieni ingenuum maritum duxerit, omnis mulieris agnatio ad eius dominium pertinebit.
If a woman belonging to another [landlord] should marry a freeborn man, all her offspring shall
belong to his ownership.
The children of the colona passed under her landlord’s ownership, while in
the case of a marriage with a colonus from another estate, only two thirds of the
children passed to the ownership of her landlord.92 In the Justinianic Code this
idea is expressed more precisely:93
Mulier, quae fuisse originaria docebitur, si cuiuscumque liberi hominis secuta consortium in urbibus vel in
quibuscumque locis victura constitit, eius omnem subolem secundum vetera constituta conveniet revocari.
Where a woman, who is shown to be a colona by birth (originaria), marries a free man in any city or
place whatsoever, it has been decided by the ancient laws that all her offspring will follow her
condition.
Both fragments of the constitution of 419 apparently ignored the alternative
case of a legitimate marriage between coloni belonging to different landlords and
between a colona and a man not belonging to any estate. The development of the

92 Munzinger follows the interpretation, but, like the interpreter of 506, ascribes it to the constitution
of 419.
93 CIust. 11.48.16 (419).
282 A. KOPTEV

colonate during the period from 419 to 534 saw a change in the social condition
of coloni as they came to form a distinct class excluded from the protection of
civil law. Coloni were no longer free to marry and their families were threatened
with division in both the early Byzantine empire and the Western Romano-
Barbarian kingdoms of the sixth century.
In conclusion I want to subscribe to Boudewijn Sirks’ worthy remark that
the legal texts of the Code must be read in their context and not in detached
sections. This context consists primarily of the title the text belongs to, as well as
the book, the Code, and the entire body of Roman law.94 Sirks is correct on this
point, but tends to disregard the fact that postclassical Roman law was just as
shifting as the society of late Antiquity. Thus, he states that the earliest laws on
the colonate do not necessarily have the same significance as the earliest
historical records on the same subject, while a later law may reveal more about
the situation of the coloni. This sounds mistaken as the body of law in the sixth
century was not the same as in the fourth century. In this regard, we should note
that the status of dependency of coloni had developed in the second half of the
fifth century at the earliest, when the term adscripticius appeared in Eastern laws
to distinguish the coloni originarii of the previous period from the new coloni liberi,
born out of the extension of the 30-year longi temporis praescriptio to independent
labourers on the estate. Therefore, it does not seem right to apply the terms
adscripticii and coloni liberi to all coloni of the Codes, as Sirks does.

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