Colonus : private farm-tenancy in Roman Italy during the Republic and the early principate

140 Pages·1984·23.522 MB·English

by  Pieter Willem De Neeve

j
3
t
COLON US.
PRIVATE FARM-TENANCY IN ROMAN ITALY DURING
THE REPUBLIC AND THE EARLY PRINCIPATE
by
P. W. DE NEEVE
J.C.GIEBEN, PUBLISHER
AMSTERDAM 1984
I
CONTENTS
Preface .......................................... .vii
CHAPTER I Introduction. ............................. .1
CHAPTER II Colonus. ................................ 31
CHAPTER III Tenancy ............................... . 63
CHAPTER IV From Republic to Principate .................. 119
APPENDIX I The coloni of Catiline and L. Domitius Ahenobarbus .. 175
APPENDIXI I Colonus in the Inscriptions and Colonia not in the
sense of 'Colony'. ......................... 193
APPENDIXI II Does Tenancy occur in Cato? (Cato,Agr. 136-137) ... 201
APPENDIXI V List of the Principal Roman Jurists. ............ . 212
I £x U3^1!..J
Supplementary Notes. ................................ 215
Ji ^EPStTA'nS^
jN I
!'jOV>OMAG£N£'<c< | List of Abbreviations................................ . 231
^lc^^ I
Bibliography. ...................................... 233
Index Locorum..................................... 245
General Index. ..................................... 265
No part of this book may be translated or reproduced in any form, by print,
photoprint, microfilm, or any other means, without written permission from
the publisher.
©1984,byJ.C. Gieben
ISBN 90 70265 15 X
Printed in The Netherlands
PREFACE
This book appeared originally in Dutch in September 1981 asm y doctoral
dissertation at the State University of Utrecht. The original version has
been revised in that I have corrected a few errors, rewritten or adapted a
number of passages and added such relevant studies as came to my atten-
tion shortly before and after the originalp ublication. One major alteration
has been the elimination of what was Appendix IV ('Fundus ase conomic
unit'), which will be published separately in the Tijdschrift voor Rechts-
geschiedenis. For the rest this book is published substantially as it was
written then.
My thanks are due,n owa s then, first of all to my supervisors, Professors
H.T. Wallinga and J.E. Spruit, and to my former colleague at Utrecht
University, Mr. G.M.T. Trienekens, who generously shared with me his
expert knowledge of agriculture and its history. In preparing my disserta-
tion I was also helped by Mrs. H.M.J.A. Lemmens-vanL iempd,D r. R. van
Amerongen, Mr. J.B. Kan, Dr.H.C.TeitlerandDr. S.Wiersma. Dr. P. Flury,
director of the Thesaurus Linguae Latinae, kindly placed the facilities of
his institute at my disposal during a week in the summer of 1978. Since
the publication of my dissertation I have benefited from comments and
information from Professor Max Kaser, from Dominic Rathbone of tKe
University of Aberdeen and from Mr. D.G. Yntema oft he Archaeological
Institute of the 'Vrije Universiteit'. Of course the responsibility for the'
views expressed in this book is entirely mine.
I am indebted to Mr. R.P. Schoen for assistance in the compilation of
the indices. Mrs. A.M. de Bruin-Cousins M.A. translated the work into
English. The translation and publication of this book like my stay at the
Thesaurus Linguae Latinae were made possible by a grant of the Nether-
lands Organization for the Advancement of Pure Research (Z.W.O.).
Amsterdam, P.W. de N.
Vrije Universiteit, Faculteit der Letteren
CHAPTER I
INTRODUCTION
1. Tfie aim of this study is to elucidate the background and growth
of private fann-tenancy as it existed in Italy during, the Roman.
Empire.^ An important, question m this CQntext is whe^t^^^^
colonus, which was the cqmmon designation for tenant-famier during the-
Principate, should be interpreted mainly in that sense-already in the
Republic. Furthermore attention }s_ devoted to questions of a-gsnei^^^^^^
cultural nature, specifically agrarian structures. These are_ relevant to the\
qagsfiorr as to which constellations can or cannot be expected to en-.7
compassfarm-tenancy.
The existing literature proved to be more or less unsatisfactory in
many cases, either because it was taken for granted that colonus normally
means a tenant-farmer or for other reasons. Moreover there are relative-
1. Finley, 1973, note 73 on p. 196 is a typical example: "Colonus originally
meant simply 'tenant' (or, in literary works occasionally, 'farmer','rustic')...". In all
fairness it should be said that Finley, 1976, 105 (cf. also Finley, 1980, 147) gives a
much more qualified view which agrees with the standpoint I elucidate in detail in
Chapter II. Finley does not go into detail, but merely gives a few, though striking,
examples. Examples of recent works in which colonus is interpreted as tenant almost
as a matter of course: Gunther, 1976;Brunt, 1976;Frier, 1979.
2. For example Heitland, 1921, who is inclined to draw fairly sweeping conclu-
sions from a mmimum of data. Moreover the description of the position of the
colonus is too static and takes too little account of the changes that could have
occurred in the course of time. Nevertheless this work remains important for an
investigation on the colonus, since it contains the largest, though not complete,
collection of sources. Other examples: Brockmeyer, 1968 and especially 1971 (see
under note 106; cf. also Frier, 1979, 215, note 59 and 221, note 87); Clausing,
1925, whose interpretations are too often untenable (see, e.g., Chapter II, notes 46,
67, 107, 109, 124; Chapter III, note 10; Appendix I, note 1; Appendix II, note 15).
Roughly the same obtains for the work of J. Dessers, 'De oorzaken van het ontstaan
van het Romeinsch kolonaat', PhS 9, 1937-1938, 45-67; 'De juridische bronnen en
het ontstaan van het kolonaat', PhS 9, 1937-1938, 126-138; 'De invloeden op het
ontstaan van het kolonaat', PhS 9, 1937-1938, 208-230; 'De literaire bronnen en
het ontstaan van het kolonaat', PhS 11, 1939-1940, 42-59; 'De epigraphische bron-
nen en het Romeinsch kolonaat', PhS 11, 1939-1940, 112-129.
y^-
1.1 1.1-2
ly few studies that deal specifically with this problem: colonus and farm- the notes. Specific mention should be made, however, of certain scholars,
tenancy are usually dealt with as introduction to the late Roman colonate,3 in the first place P.A. Brunt and E. Gabba. To both their works Chapter
or as a side issue in works on divergent subjects, for example slavery. W, in particular, owes much, but their publications are of great import-
This led me to conclude that it was necessary to start right at the ance for the entire scope of this study. The same applies to the work of
beginning and to base my study mainly on the primary sources, taking M.I. Finley who, like Brunt, has strongly influenced my views regarding
account of them as fully as possible. A further inducement to do so was the social and economic structures of ancient Rome.
the fortunate and ready accessibility, in this case, of the most relevant
literary sources, since they have already been published in the Thesaurus 2. The demarcation^oft he scope of this stydx,.a§.e.xpressed-m.th&t itle,
Linguae Latinae - and almost completely, at least as regards the word are as follows. In thej'first.)place it concernse xpl.ic.itly.pa'vflte.farm.-tenancy,
colonus. This method does have the disadvantage that it undoubtedly leads one of the possibilities (another is direct exploitation by slaves under a
to a partial repetition of all sorts of matters already dealt with many times. vilicus) for Roman private individuals, usually big landowners, to have
That is outweighed, however, by the advantage that, in this way, new their land cultivated. Leasing of state .land, (or leasingo f the land owned
insights can also be obtained. Naturally the interpretation of the sources is by municipia or emperor) is, on the whole, not taken into consideration,
bound by certain rules, of which more below (sections 10-11). because "the public land introduced an additional element, at least de
Although the sources were of prime importance, I have tried not to /ffe?c»;that can only confuse the discussion, and on many imperial estates
neglect modern studies and, indeed, have followed them completely on (...) there were tenancy arrangements for which private parallels are un-
questions of a general agricultural-theoretical nature and comparisons with attested and, in the nature of the case, impossible".7 For instance the
historical periods later than Roman Antiquity. In this my aim was not tenant of state land was, in most cases, a person of high social standing
completeness at all costs - if such is still possible nowadays. On the whole who did not cultivate the land himself, but had it done by others, for
I have endeavoured to give prime attention to recent works, insofar as example slaves or (sub-) tenants. Although this could also occur in the
accessible to me,s assuming that earlier conceptions would normally be
case of private tenancy, it is plausible that the tenant usually cultivated the
assimtfated in them. The references in the notes are based on a similar land himself. Moreover there were also differences de iure between private
principle: I give only those passagesm ost relevant to my subject. On the tenancy and tenancy of ager publicus, namely in the legal position of the
other hand I have attempted to take into consideration views divergent tenant in relation to the lessor and regarding the protection of the
from mine when the occasion arose. Here, again, my aim was not property against third parties.8 Furthermore it is possible that state
completeness. tenancy developed along different lines from private tenancy. It is clear
The various authors on whose works I have drawn are mentioned in that already in a relatively early stage of Roman history tenancy of state
land was fairly common. According to the prevailing view - which, how-
ever. still has to be veiified - this was only so with private tenancy at a
3. See, for example, the still authoritative article by A.H.M. Jones, 'The Roman
rather late stage. Finally it will be shown that the term colonus, though
Colonate', P&P 13, 1958, 1-13 = A.H.M. Jones, The Roman Economy. Studies in
Ancient Economic and Administrative History, P.A. Brunt, ed., Oxford 1974, 291-
307 = Studies in Ancient Society, M.I. Finley, ed., London 1974, 288-303 right at 6. Note that some of the wording closely follows that ofFinley, 1976, 103,but
the beginning. Finley, 1976,i s of course an exception. But this article, very important that there are subtle and significant differences. Finley considers slavery and tenancy
in itself, likewise does not bear directly on our problem. as strictly alternative ("one of the two ways"). That could be true for the Principate,
4. An important work in this category is that of Garnsey 1980(2). See further but the situation during the Republic was more complicated, as we shall see. More-
Chapter IV.2 and notes. over Finley considers big landowners only, but leasing need not have been limited
5. This limitation applies especially to the work of Russian historians. Apart from to that category, though this study will have to concentrate on it.
the fact that their publications are usually very difficult to obtain, the majority are 7. Finley, 1976, 103.
written in Russian, which I do not understand. My knowledge of the results of 8. Cf. Kaser, 1942, 34-43.
Russian historical work comes, therefore, from little else than summaries. See. for 9. Heitland, 1921, 167, is typical: "It has been said on high authority that the
example, Brockmeyer, 1968, 33-70 or the periodical 'Referate' in Historia; see also plan of letting farms to tenant coloni was 'as old as Italy'. I do not venture to deny
Die Geschichte des Altertums im Spiegel der sowjetischen Forschung, H. Heinen, this. But my inquiry leads me to the conviction that in early times such an arrange-
ed., Darmstadt 1980. What applies to Russian also applies to Polish, so all I know ment was extremely rare: ...". The "high authority" is Mommsen, 1907, 173. This
of part of the work of J. Kolendo in particular is the title. question is dealt with further in Chapter III.2 and 3.
1.2-3 1.3
used for tenants of state or municipal land (cf. Cic. 2 Verr. 3.228; Fam.
categories cannot always be finely delineated. Specifically it is often diffi-
13.11.1), was usually used in connection with private tenancy.
cult to determine clearly whether it is a case of l.c. opens facien di or l.c.
Erfrthei:, the study is limited to .the leasing of land (including any build- operarum. i
ings) for agncuhural..p_yrpQse5,.ja.Qtherwojdsexcludmgspeci^^ In the case of l.c. rei a. further distinction must be made between the
raising. In Chapter II is demonstrated that colonus was used almost
conductor^ right simply to use the object and the right to exploit it as
exclusively in it, not in all sorts of other forms of leasing, nor in house- well. In the first case it is hiring, in the second leasing.13 The latter
rent or for example in contracting work, although for the Romans all these
category is the relevant one here, to be precise the leasing of land, in the
relationships resorted under one contract: locatio conductio. This can give
terminology of the sources locatio conductio fundi, or praedii (rustici) or
rise to confusion, so a preliminary discussion of this point is purposeful. agri. Hereafter this subdivision of locatio conductio is dealt with unless
This also gives me an opportunity to formulate more precisely my
otherwise specified. Although most of what follows also applies to locatio
definition of 'farm-tenancy' and 'tenant-farmer.' I confine myself to a
conductio as a whole, farm-tenancy has its own peculiar aspects connected
systematic survey of locatio conductio in the period dealt with in this with the practical situation. Where necessary I shall try to elucidate the
study (see below, § 9). Any changes that may have occurred in that period,
significant differences between farm-tenancy and other subdivisions of
usually about details, are disregarded. I do not aspire to completeness, but
locatio conductio.
concentrate mainly on the aspects of greatest significance for this study.
3. Locatio conductio is a contract between two parties, the locator Locatio conductio is the source of a bona fide obligation. It is a
who places" something, makes it avaUable (but is not necessarily the completely bUateral, consensual contract. This means that a simple
owner thereof) and the conductor, the one who "takes along" what is agreement is sufficient. A written record is therefore not required.
made available to him. On the other hand it seems certain that written contracts did exist. This
As noted above, locatio conductio is more comprehensive than farm- can be inferred from the existence of the lex locationis / conductionis, also
tenancy. It is customary to differentiate between l.c. opens faciendi termed forma (cf. Ulp.£>. 24.3.7.3).This contained the special clausesofthe
(contracting a work to be done), l.c. operamm( labour contract, including lease contract which became bindingo n conclusion of the agreement.18 In
work for wages) and l.c. rei (hiring and leasing). These terms do not occur
as such in the sources, which nevertheless provide starting points for the
modern classification.11 In practice, for example, the position of the 12. Cf. Schulz, 1951, 542-543, with examples. Thomas, 1961, 236 and 240
argues that the jurists were much more interested in l.c. operis faciendi than in l.c.
locator and conductor varies in the different subdivisions of locatio con-
operarum. He also points out (pp. 234 and 239; cf. also Lewis, 1973, 171) that the
ductio. In hiring and leasing the locator is the lessor c.q. landlord of an formulation operas locare only occurs in the sources from the time of Hadrian, in
object, in contracting work the principal. In the case of a contract of Julian (for the relatively late appearance of wage labour as a result of the difficult
employment, however, the employee is the locator who places himself and abstractions requu-ed for it, see also Finley, 1973, 65-66). Before that time the
his capacity to work at the disposal of the conductor, who is the person wording was always se locare, in fact a sort of l.c. rei (Thomas, p. 234; in a like
sense Crook, 1967, 191 and 194;Watson, 1971, 139) which must be interpreted as a
who makes use of that capacity to work. For the rest, classification in
sign of the low status of the labourer (cf. Thomas, 1961, 235-237). It is likely that
locatio operarum servorum served as model for locatio operarum in general; cf. also
Crook, 1967, 194, contra Kaufmann, 1964, 182-205. See further below notes 42-45.
10. The following survey is based mainly on Kaser, 1971, 562 ff., to which no
13. Cf., for example, Bolla, 1949, 2439.
further reference is made on the whole. An analogous, but much more extensive
14. Fundus is the most frequently used word. For its meaning see De Neeve,
survey of Roman Law relating to urban leasehold, with occasional references to
Fundus. For sources see TLL and VIR, s.v. colonus, conduco, conductio, conductor,
farm-tenancy, can be found in Frier, 1980, Ch. IV. For the principles underlying
locatio, locator, loco.
my interpretation of the Digest fragments, see below, § 11.
15. An example is given in note 34 (the reflection of a practical difference
11. The problem of unity and trichotomy of locatio conductio need not concern
between leasing and renting in the regulation concerningp ignus).
us here. See Kaser, 1971, 563, with references in note 2. Note that he considers an
16. Cf. Cic. Off. 3.10;Nat. dear. 3.74; cf. also Kaser, 1971,486.
either-or-formulation incorrect. See Lewis, 1973, for a recent, unconvincing argu-
17. The basic text is Gai. Inst. 3.135-136 = D. 44.7.2 pr.-l = Inst. lust. 3.22
mentation that, judging by the classification of their work, the Roman jurists them- pr.-1.
selves implicitly made a distinction between the various categories.
18. This is the prevailing view today, as opposed to the older opinion that lex
1.3 1.3
a number of cases it is stated in so many wordst hatt heyw erei nw riting.
Apart from that, there are passages in the Digest in whichj urists intrepret The duties of the parties to the contract can be distinguished as basic
the lex20 and in these cases, too, the lex was probably recorded in writing. and special. The basic ones could be included in the lex locationisu but
It is quite plausible that if the lex was recorded in writing then the obtained even if nothing further was conditioned when the contract was
contract itself was also normally recorded in writing, though that is not concluded. The special duties had to be separately recorded, either by
strictly necessary. It is also conceivable that, especially in the case of large the lex locationis, unilaterially determined by the locator26 or by other
estates, the lex was recorded in writing and that the tenants, knowing agreements in which the conductor could play a role.
that those clauses obtained, concluded the contract consensu. The special duties could concern all sorts of details. Examples are the
For the rest it does not appear that the lex had of necessity to be in conductor''?, duty to make improvements (cf. Paul. D. 19.2.24.3; a con-
writing. Although modern studies are not explicit on this point, this must trario Scaev. D. 19.2.61 pr. and Paul. D. 19.2.55.1; or a prohibition on
follow from the nature of the lex: clauses that became binding on the the use of fire (Ulp. D. 19.2.11.1), or merely permission for a harmless
conclusion of the contract. If this could be effectuated consensually, the fire (Ulp. D. 19.2.9.3), evidently to prevent conflagration. Ulp./Lab. D. 19.
same must have obtained for the lex. The only condition must 2.11.4 has the same purpose: the prohibition of storing hay in the villa
have been that the clauses were made known to the conductor,2'1 but there urbana, the living quarters of the buildings on a fundus." Varro (RR. I.
are no grounds for assuming that they therefore had to be in writing - the 2.17 and 2.3.7) contains a prohibition on letting young goats graze on the
less so since undoubtedly the conductores could often barely read.23 ager surcularius (the land on which shoots are raised),28 or the fundus as
Whether or not the contracts were recorded in writing probably varied the case may be. In RR. 1.38.2 Varro also gives the example of a clause
from case to case, depending inter alia on the social standing of the con- (in conductio of aviaries) that the manure must stay on the fundus, with
ductor, which was not necessarily low. as compensation a lower rent.
This list is not, indeed cannot be, complete. There were numberless
indicated both the contract itself and its clauses. Discussion inV . Liibtow, 1956, possibilities for reaching special agreements. In fact anything could be
239-254; Mayer-Maly, 1956, 110-111; cf. also Kaser, 1971, 30; 197; 229; Schulz, agreed upon, as long as public order and good morals were not violated.29
1951, 310.
19. Cf. Varro, RR. 1.2.17-18, with generalising tenor; Alf. D. 19.2.29. It is
uncertain, at most probable, that the leges in Cato Agr. 144-150 were recorded in 25. Examples later in this section.
writing. Moreover it is questionable whether tenancy, or even locatio conductio, is 26. For the role of the locator in determining the lex locationis see Pap. Z).
the subject in these leges. This is discussed further in Chapter 11.6. 2.14.39 (with reference to veteres): cf. also Mayer-Maly, 1956, 106-110. Other
20. Alf. D. 19.2.30.4 (the explanation given by Gunther, 1976, 264, ofhaclege examples of legem dicere by the locator: Alf. D. 19.2.29; lav. D. 19.2.51 pr.; Gai.
as "soil. Aquilia" is incorrect); Scaev. D. 19.2.61 pr.; Paul D. 19.2.24 pi.; Ulp. D. Inst. 3.146 (gladiators); Lab. D. 19.2.60.3 (l.c. operis faciendi); Ulp. D. 19.2.9.3.
19.2.9.3:50.8.3.2. For the possibility of other agreements see Ulp. D. 19.2.19.2 in fine (... nisi si
21. The same could apply to the African Lex Manciana (cf. CIL 8.25902.1.5-6 quid aliud specialiter actum sit ...); 50.17.23 (according to Kaser, 1975, 352, note
et al.}, a private lex (cf. Bolla, 1949, 2478) which served as model for the imperial 40 composed of classic and non-classic elements. Little objection can be made to the
regulations handed down to us in epigraphical form. content of the relevant words nisi si quid nominatim convenit (vel plus vel minus) in
22. What is argued here follows logically from v. Liibtow, 1956, 246-247. The singulis contractibus). Paul. D. 1 9.2.55.1 gives an indirect indication of the possibility.
technical term legem dicere provides no means of evaluating how frequently Cf. also Kaser, 1971, 487. lul. D. 2.14.56 contains an example of apactum. Paul. D.
contracts were concluded without being recorded in writing (cf. TLL VII, 2, 1242- 19.2.54.1 contains an example of stipulatio.
1243 s.v. lex (I)). This must have been a traditional phrase left over from the original 27. See in particular Colum. RR. 1.6. A distinction must be made between the
situation (cf. Kaser, 1971, 30) and so used in the written record. An example is Alf. pars urbana, the living quarters, and the pars rustics, the work area of the villa.
D. 39.4.15: leasing by "Caesar" of the cotoriae insulae Cretae, in which the term Columella also distinguishes a pars fructuaria, unlike Cato (Agr. 3.2; 4.1) and Varro
legem dixerat is used, although that lex must surely have been recorded in writing. (RR. 1.13.6-7), who only distinguish between villa urbana and villa rustica. The
In this respect, the fact that so few lease contracts have been preserved cannot be villa urbana, therefore, is not a town dwelling (contra Weber, 1891, 231; Mayer-
used as argument, as Mayer-Maly, 1956, 89, does. The material on which the Maly, 1956, 197; Lewis, 1973, 167; Frier, 1980, 142). See the definition given by
contracts were written was much too peiishable. Florent. D. 50.16.211. The villa urbana was 'urban' in the sense that it was not used
23. See R.P. Duncan-Jones, 'Age-rounding, Illiteracy and Social Differentiation for agrarian purposes (cf. Paul. D. 33.9.4.5), but for voluptas (Ulp. D. 50.16.198).
in the Roman Empire', Chiron 1, 1977, 333-353. 28. See Chapter III.7a.
24. See below, § 4 and 5. 29. Cf. Ulp. D. 50.17.23: nam hoc servabitur, quad initio convenit (legem enim
1.3 1.3
This means that duties could be restricted or annulled. An example of ductio with respect to the merces. In l.c. rei and l.c. operarum it is the
this is the right which the tenant had to remissio mercedis, i.e. he received conductor who has to pay the merces, in l.c. opens faciendi, on the
a proportional reduction of rent if through force majeure (anything the contrary, it is the locator.
Romans bundled under the term vis maior) his yield failed to come up to Another aspect of the merces that should be noted is the possibility
expectation. This right existed in broad outline from the last years of the which the locator had (and which he most likely made use of) of obtaining
Republic. On the other hand, the right to remissio mercedis could be security for the rent by requiring a pledge on the things brought to the
precluded when the contract was drawn up, as is evidenced by Ulp./Iul. fundus by the conductor "to remain there" (ut ibi sint, Pomp. D. 20.2.
D. 19.2.9.2. 7.1), the invecta et illata, and on the fructus which the conductor obtain-
Two basic duties could not, however, be annulled, since then there ed from the fundus. If the lessee did not meet his duty to pay the
would no longer have been locatio conductio. Hence these duties are most merces, then, perhaps from the first half of the first century B.C.,35 the
characteristic of the contract. locator could request the praetor to issue the Salvian interdict in order to
The first duty was that of the locator to give the conductor the enjoy- distrain the pledge.36
ment, frui, of what was leased.T he sources are quite unambiguouso n this
point. This frui did not give the tenant any possessio, legal possession.
34. Invecta et illata: Lab. D. 20.6.14; Ner. D. 20.2.4 pr.; lul. D. 43.33.1 pr.-2
He merely became what is usually designated detentor, though this term
(ancilla and res); Pomp. /5. 20.2.7.1; Gai. D. 20.4.11.2; CJ. 8.14.5 (294). Invecta
does not occur in the sources.32 et illata occur in Cato, Agr. 146.2; 149.2; 150.2 (where it is not certain whether the
The sources are even more explicit about the other duty: the duty of subject is farm-tenancy or even locatio conductio, see Chapter 11.6). Fructus: Pomp.
D. 20.2.7 pr.; Afric. D. 47.2.62.8; Gai. D. 20.4.11.3; Pap. D. 19.2.53 (leasing of
the conductor to pay something in return, the rental or merces. According
praedium publicum); Paul. D. 19.2.24.1. That the aim is security for the merces is
to the jurists Gaius {Inst. 3.142; D. 19.2.25 pr.),34 Papinian( D. 24.1.52
stated explicitly in Lab. D. 20.6.14, Afric. D. 47.2.62.8 and Gai. Inst. 4.147. Accor-
pr.) and Ulpian (Z). 10.3.23) a contract in which no merces was fbced was
ding to Bolla, 1949, 2480, the pledge was not merely a security for the merces, but
not locatio conductio (moreover the merces had to be genuine: a conduc- for all requirements which the locator could enforce by means ofactio locati. How-
tio nummo uno was invalid, cf. Ulp. D. 19.2.46; 41.2.10.2; cf. also Paul D. ever the passage on which she bases her assertion, Marcian./Pomp. D. 20.2.2, only
19.2.20.1). Vice versa the agreement on the merces wash eld to be definit- mentions the inquilinus. Although Bella's idea is attractive in this case, a ruling
about house-rent cannot be assumed to apply automatically to tenancy. In title 20.2
ive for the conclusion of the lease contract (Gai. D. 19.2.2 pr.).
on pignus, an explicit distinction is made at times in the requirements of inquilinus
A difference can be discerned between the categories of locatio< con- and colonus which probably reflects a practical difference between the mobile town
dwellers and the much more stationary country folk, cf. Finley, 1976, 110-111.
contractus dedit), excepto eo, quad Celsus putat non valere, si convenerit ne dolus From the words ut adsolet in D. 47.2.62.8 it can be inferred that it was customary
praestetur: hoc enim bonae fidei iudicio contrarium est: ... . Cf. also Finley, 1976, to request security. Moreover some texts mention a tacit agreement. Whether that
107. became customary at some time is not relevant to our purpose. It can be determined,
30. The view held by Mayer-Maly, 1956, 140-147, followed by Kaser, 1971, however, that a tacit agreement only occurs in texts pertaining to fructus (though
567, that the remissio mercedis proper is a creation of the Seven which goes further conventiones also occur in them), and according to Neratius, D. 20.2.4 pr. with the
than what I describe here is incorrect. See my 'Remissio Mercedis', ZRG 100, 1983, invecta et illata only in the case of praedia urbana. In the case of praedia rustica he
296-339. says an agreement is required and most of the texts contain one (in my opinion
31. The basic text is Ulp. D. 19.2.15 pr.-l; cf. also Afric. D. 19.2.33; Paul. D. placuerat in CJ. 8.14.5 (294) should be interpreted as such; cf. also CJ. 4.65.5 (223);
19.2.24.4; Ulp. £>. 19.2.9 pr.; 19.2.15.2; cf. also Mayer-Maly, 1956, 152-153; Bolla, Mayer-Maly, 1956, 106, note 58). Only in lul. D. 43.33.1 pr.-2 and Pomp. D. 20.2.
1949, 2439. 7.1 is it not mentioned. In the latter, the separate mention of the invecta et illata
32. The basic texts are lul. D. 41.3.33.1; Ulp. D. 43.26.6.2. See also Kaser, after the fructus in D. 20.2.7 pr., of which it is explicitly stated that they tacite
1971, 384-390; the passage about detentores on p. 390. The term tenere does occur intelleguntur pignori esse, suggests that the invecta et illata cannot be equated with
in the sources, cf. for the colonus Ulp. D. 43.16.1.22. In general cf. lav. D. 41.2.24; it. The context of the passage in Julian suggests an explicit conventio. For the view
Paul. D. 41.3.31.3; 47.2.86(85); Ulp.O. 50.16.63. that an agreement was always required with respect to the invecta et illata in the
33. According to Kaser, 1972, 84, note 130; 1975, 338, n. 24, the fragment case otpraedia rustica, see also Frier, 1979, 220.
contains interpolations. In view of the other texts, the principle that conductio is 35. For the dating see Chapter 11.6 and notes 78-83; 103; see also Chapter III.12b
conditional on the establishment of a merces is unassailable. The significance of and note 243.
merces for the definition of locatio conductio can also be inferred from Gai. D. 36. For this interdict see Gai. Inst. 4.147; further discussion of this point in
19.5.22; Paul. D. 17.1.1.4; Ulp. D. 4.9.3.1; 10.3.23; 14.1.1.18. Chapter 11.6.
10 1.3 1.3 11
Another basic duty of the conductor was to take goodc are of the lease-
Generally speaking, one characteristic ofland-leasing is that it is usually
hold. This implied that he had to keep the buUdings and suchlike in good
entered into for a relatively long period. This again distinguishes it from
repair and also that he had to cultivate the land properly.37 The remark-
l.c. operis faciendi and l.c. operarum, both of which were intended more
able thing about this duty is that, in early sources, it occurs in the lex
for a short-term agreement. That is very manifest in the contracting of
locationis (which is never the case with the duty to frui licere and only work: the duration of the contract was determined by the time needed for
once, in an exceptional situation, in thato f the duty to pay merces)3s and
the execution of a certain job and the contract bore expressly upon that
not in later sources. I think the probable explanation is connected with an
work. A longer engagement is in itself conceivable in the case of a labour
increasing frequency of the phenomenon of farm-tenancy.
contract. There are even two fragments of the Digest (Pap. D. 45.3.18.3
and Ulp. D. 24.3.7.10) which mention a locatio operamm for five years
and for one year.42 But in those fragmentsi t is a mattero foperaeservorum
In theory there was no limit to the duration of tenancy agreed on. The and that is not insignificant. Presumably the labour contract of free men
most frequent in the sources, however, is a period of five years, the qiiin-
was normally intended for a specificj ob of short duration, such as helping
quennium or lustmm. 9 On tennination of that period, a new contract with the harvest. Wage labour in the modern sense with a rather
could be concluded for a further five years, or for another term, but, if
permanent employment seldom occurred in Antiquity according to
neither party objected, the contract could be tacitly prolonged by one current opinion.
year at a time, the so-called relocatio tacita (the term does not occur in the
It need hardly be said that the locator and conductor could not uni-
sources, but it is customary).40 It is plausible that one year was the mini-
laterally terminate the contract during its period of currency, unless
mum term if the contract contained no agreement about its duration.
special circumstances arose. The locator could, in any case, expel the
From this it follows that, in such a case, a prolonged lease must formally be
conductor if he failed to fulfil his duty to pay merces and cultivate the
considered to be a succession oftacitly renewed terms of one year. land properly.46 The conductor could leave prematurely if frui became
37. Careofthew7/<?:Alf. /5. 19.2.30.4, Gai. D. 19.2.25.3; PS. 2.18.2. Cultivation:
lav. D. 19.2.51 pr.;Gai. £>. 19.2.25.3; Paul. D. 19.2.24.2; 19.2.54.1; Ulp. D. 19.2.15.
42. In Afric. D. 7.1.37, stipulatio of the operae Stichi is mentioned, but not
3; PS. 2.18.2. Cf. also Friei, 1980, 75 and note 51.
merces. Strictly speaking, therefore, this is not a case of locatio.
38. Scaev. D. 20.1.31 pr. The reason must be that it was a fundus vectigalis.
43. Wage labour is a sign of slavery, cf. Cic. Off. 1.150 and cf. also Thomas,
This is confirmed by Gu. Inst. 3.145, where the wording of D. 20.1.31 pr. is, in fact,
1961, 235-237; Crook, 1967, 194-195; Finley, 1973, 73. There was no obstacle
reversed.
to prolonging siich a situation in the case of slaves {operas servi locare is really the
39. Quinquennium: Call. D. 49.14.3.6 (state leasing); Paul. D. 19.2.24.2 and 4;
same as servum locare, cf. Thomas, 1961, 240; Crook, 1967, 191 and 194), but there
24.3.25.4;34.3.16;Ulp./MarceU..D. 19.2.9.1; Ulp. D. 24.3.7.8; Hermog. D. 19.1.49
was in the case of free men. Consequently the period for the latter was kept as short
pr. (=+ Pap. fr. Vat. 13). Lustrum: Lab. D. 32.30.1 (hortip ublici};C els. £>. 47.2.68
as possible: "free hired labour was casual and seasonal" (Finley, 1973, 73; cf. also
(67).5; Ulp. D. 12.1.4.1; 19.2.13.11. Cf. also Sic. Flacc. 162 L. = 127 Th. {agri
Crook, 1967, 194-195).
vectigales); Plin. Ep. 9.37.2. Different terms do occur: ten-year leasehold in lav./Lab.
44. See Skydsgaard, 1980. Further examples in Crook, 1967, 195-198.
D. 18.1.79 (but a special case, sale is involved); leasing in plures annos in lul. D.
45. See Finley, 1973, particularly 73-74 and cf. also 65-66; 1980, 68. See also
19.2.32; Paul. D. 19.2.24.5. Pomp. D. 19.2.4 mentions lease quoad is qui earn
above, note 43. The sources present certain problems, however, e.g. Varro RR. 1.17.
locasset... vellet. 2, ... gravia loca utilius esse mercennariis colere quam sen/is, ... (presented as spoken
40. Passages with explicit evidence are of late date: Ulp. D. 19.2.13.11; 19.2.14;
by Scrofa and so reproduced as his opinion by Martin, 1971, 249, followed by
CJ. 4.65.16(260). Relocatio tacita can be inferred indirectly from Cels. D. 47.2.
J. Annequin in Terre et Paysans, 433), and Sat. Menipp. 564 (cf. Rawson, 1976,
68(67).5 and can therefore be dated back to the end of the first century A.D. The 186,note 47).
institution could possibly have existed during the Republic (as postulated by Finley,
46. The principal texts on the right of the locator to oust the conductor are
1976, 115). An argument for this is that if no term was established when the contract lav. D. 19.2.51 pr. and Paul. D. 19.2.54.1. The right of the conductor to leave if
was concluded, the lease must have consisted of a series of relocationes. The differ- the frui was impossible is nowhere stated expressisv erbis, but it is the logical counter-
ence then is that from the beginning the term was one year and in the case of part of the fact that frui was essential to tenancy. The right can be inferred indirectly
relocatio tacita proper, one-year prolongations followed on an original term of from such texts as Ulp./Serv. D. 19.2.15.2 in fine;A fric. D. 19.2.33; Ulp./Marcell. D.
longer duration.
19.2.9.1; Paul. D. 19.2.24.4. Kaser, 1971, 568, mentions other possibilities, namely
41. F. Gallo, 'Sulla Presunta Estinzione del Rapporto di Locazione per Ini- for the conductor that the use of the object was dangerous and for the locator the
ziativaUniIaterale', 5>'ntefeM /lron^io-^u;z, II,NapoIi 1964, 1198-1211, on p. 1201. need for repair and the circumstance that he needed the object himself, but these are
12 1.3 1.3-4 13
impossible. If either broke the contract without reason before its expiry, indicationso ft his. But the bonae fidei iudiciumd idn ot yet exist and so
he was liable for non-fulfUment towards the other party. the locatio conductio lacked an essential element.
4. Terminological distinctions must be as clear-cut as possible.50 The
This brings us to the coping-stone of locatio conductio, the possibility term (farm-) tenancy should be reserved for locatio conductio of land. or
of instituting legal proceedings against the other party if necessary. For if necessary 'exploitation of another man's land for payment of merces'.
this purpose there was the bonae fidei iudicium locati conduct!, whereof The term 'tenant' may not be used for e.g. a cliensor debt-bondsman.The
the actio locati was meant for the locator and the actio conduct! for the difference in legal status implied a different social and economicp osition.
conductor. This applied to all forms of locatio conductio. An illustration of this is the fact that, unlike a tenant. a cliens who held his
The iudicium is not only the coping-stone, it is essential to the land precario ('at his request till further notice') did not have to pay
existence of the contract. According to the legal thinking of the Romans, merces, at least in historic times.51 He could, presumably, have been ex-
an obligation was possible only if there was an actio for it with a formula pected to give hisp atronus gifts from time to time, though even these were
that identifiedt he obligation. 7 formally forbidden by a Lex Cincia as from 204 B.C.(cf.Livy, 34.4.9).52
Hence the iudicium is of essential importance for dating the inception
49. See Chapter III.2-3.
of locatio conductio'. once the iudicium exists, we can say that locatio 50. For a similar viewpoint regarding slavery, see Finley, 1980, 67-72. A certain
conductio has in essence been created. Naturally there were developments lack of precision in the use of language is particularly noticeable in Anglo-Saxon
in the course of time, but they really only concerned side-issues, refine- studies. I realise that 'tenancy' and 'tenant' can mean more than simply 'leasing'
and 'lessee', but in English, too, in a legal context "the ordinary, current sense" of
ments. The basic pattern had been fixed: the use, possibly the exploitation
'tenancy' or 'tenant' is "occupancy of land or tenements under a lease" and
of an object owned by another party for payment of a remuneration, with
"one who holds a piece of land, a house etc. by lease ...". See The Compact Edition
the duty to take good care of the object and with the actiones locati and of the Oxford English Dictionary, Oxford 1971, s.v. tenancy and tenant (my
conduct! as remedies. spacing). Consequently with regard to our present subject 'tenant' should only be
The creation of the iudicium locati conduct! cannot be dated with used in the sense of 'tenant-farmer'. A distinction should also be made in English
between 'tenancy' and clientela (as opposed to Bernstein, 1978, 92-93) and between
certainty, but it can be placed within certain limits. Opinions in modem
'tenancy' and ususf'ructus (as opposed to Harvey, 1979, 343). Furthermore there is a
studies vary from the middle of the third century to the end of the second
difference between 'tenancy at will' and precarium (as opposed to Stockton, 1979,
century B.C.. Before the middle of the third century B.C., therefore,
15, note 34), cf. Pomp. D. 19.2.4 and Kaser, 1971, 388: "Das precarium ist von HauS
there is strictly speaking no locatio conductio. Of course this does not aus kein Rechtsverhaltnis, sondern blofi faktische Uberlassung" (Stockton refers to
mean that certain essential characteristics of locatio conductio could not Jolowicz, 1972, 230-231, but all that is stated there is "A has let B occupy a farm
have already been in existence, specifically the use (exploitation) of an- precario". Tenancy cannot be inferred from this). Contracting work and wage labour
are also designated tenancy, but that could be due to an incorrect interpretation of
other party's object for a remuneration. We shall see below that there are
Cato, Agr. 136 and 137. See Appendix III and notes 8 and 10. See also Brunt, 1976,
131, note 27, whose own definition indicates that there can be no question of farm-
tenancy.
51. For the relationship between clientela and precarium, see Mommsen, 1876-
not evidenced for tenancy by the sources. The last-mentioned possibility could 1888, III, 83; v. Premerstein, 1901, 34. Cf. further Steinwenter, 1953, 1815, who,
conceivably have applied to leasing, though it must seldom have occurred judging like v. Premerstein, refers to Fest. p. 247 M. = 288 L.: Patres senatores idea appellati
by the silence of the sources, but the others would seem typical for toe. cond. of sunt, quia agromm partes attribuerant tenuioribus perinde ac liberis propriis. Hence
buildings. What happened when one of the parties to the contract died is a special there is no remuneration. This is also indicated by the word liberalitas in Ulp. D.
question which is too complicated and too unrelated to this survey to merit further 43.26.1.1 and 43.26.2.2. For the lack of a regular remuneration - not to be
discussion. confused with incidental gifts - see v. Premerstein, 1901, 40-41; J. Michel, Gratuite
47. Kaser, 1971,483. en Droit Romain, Bruxelles 1962, 128-130; Kaufmann, 1964, 52-53 and 122. For a
48. See survey in Kaufmann, 1964, 9-10, with references in note 60. Kaufmann's divergent, but not convincing view, see Staerman, 1969, 76. Michel, followed by
own view (end third - begin second century) on pp. 342-344; cf. further Kasei, 1971, Kaufmann, argues that this was so from earliest times. For a different view, see
485 ("mindestens schon im 3. Jh. v. Chr."); F. Wieacker, >Zum Ursprung der bonae Mommsen, 1876-1888, III, 83, who surmises that free labour or part of the harvest
fidei iudicia', ZRG 80, 1963, 1-41 on p. 40 ("noch im 2. Jh.") and cf. also pp. 34-37 was originally required as remuneration.
(second half second century); Watson, 1971, 129 ("around 200 B.C."). 52. For the interpretation of the Lex Cincia, see v. Premerstein, 1901, 41.