The abolition of the poll tax in Illyricum and Thrace made automatically the estate owner’s guarantee for this void and with that the census registration and the colonate. To prevent loss of labour in these war-stricken provinces the emperors introduced in 371 and 398 the rule that, although now free from subjection, former coloni had to remain on the estate and render services. This ‘free’ colonate, which must have existed before, was also introduced in Palestine in 386. The status of the ‘free’ coloni in Byzantium looks very similar to the status of the serfs, villeins, or Hörigen in medieval West-Europe, who also were tied to a plot of land. But there were differences too: unlike in some cases there, these coloni were not in any way subjected to the jurisdiction of their masters, nor required to ask permission for marriage, etc. Further, as far as we know, there is no link between the two phenomena. If we would call them nevertheless serfs, it should always be with the adjective Byzantine.

A construction like the colonate is known in the Heroninos archive (249–268). It is the paramonè agreement, where the estate owner grants credit and the debtor provides labour at the wish of the creditor, as a kind of interest. For the period from 364 to 293 constitutions are considered as issued originally. Retrogradely, several additions become visible. In the middle of the fourth century the coniugium non aequale is applied to coloni and some groups of workers, as is the senatusconsultum Claudianum. In 319 the coloni on imperial estates may be recalled: the essential mark of subjection. The same is shown in 332 for coloni on private lands: they are alieni iuris, may be recalled, and tax must be paid for them. Connected with the similar condicio for monetarii in 319, the colonate may have existed essentially in the beginning of the fourth century and can now be connected with a rescript of 293/4.

The subjected status of the coloni equalled them to persons alieni iuris, as slaves were too, but they were still free. It made marriages with those not in this way subjected with regard to the transmission of status ‘unequal’. It implies that children follow the status of the mother. This ‘unequal marriage’ and its consequence was introduced by earlier laws. To prevent the children out of marriages of a colonus with a not subjected woman being not subjected, the senatusconsultum Claudianum was applied. That made children follow the status of the father. The abolition of the senatusconsultum led Justinian to introduce the faculty of estate owners to recall coloni from such marriages in order to prevent the loss of labour force. CJ 11.48.19 established that every colonus after thirty years of service was no longer alieni iuris and thus subjected to their estate owner, but free from his control over him and his property. Such coloni are called ‘free’ coloni (coloni liberi). They remained tied to the estate and had to render services and to pay poll tax, but could now fulfill public functions as no longer being of subjected status.

In the fourth and fifth centuries, the emperors had to combat the patrocinium: the protection offered by powerful persons to towns and individuals. This protection was often used for evading public law duties. The title in the Code deals only with Egypt, where it seems to have been rampant or been most detrimental, notwithstanding that it is also attested for Syria. It must have existed in other provinces as well. Yet, it does not seem in the west to have required legislation. Also coloni took advantage of it, offering patrons entire hamlets. As a result they seem to have neglected to work for their estate owners. In this context the coloni homologi turn up. Connecting this with CTh 13.10.7, it concerns most probably coloni registered on one tax list. They had to provide the aggregate of the poll tax, regardless of the number of present coloni. The solution was to combine lists and correct by cross-linking fiscal accounts.

The purpose of this book is twofold. On one hand it intends to provide a survey and analysis of the colonate in the Roman Empire from the legal point of view, embedded as much as necessary in the social and economic context of Roman society. On the other hand, it is meant to show how to approach the sources in a case like this and, in general, how to work with the codes of Theodosius and Justinian, in a way that does justice to the place of the texts in the whole of these codifications, that is, taking account of their function within a codification. The individual texts have their value as historical sources, yet one must be aware how they have come to us, in which context and to which purpose they were selected and edited, or else their historical value might diminish or even disappear.

The transmission of the condicio coloniaria appears determined by the characterisation of it as a lesser status and the senatusconsultum Claudianum used as correction. But this was not restricted to coloni. Other groups involved in an industry important for the emperor (weapon smiths, silk weavers, purple snail divers, miners, minters) were also tied and subjected, as the corporati of towns, important for the municipal services (fire men, etc.). The term condicionales is used. However, from the enumeration it follows that the lesser status, which also impeded the fulfillment of official functions, was restricted to these groups and was not a general phenomenon.