The scope of the Digest 361 



to the land, and only transferable therewith. Secondly, they are surely 

 labourers, tilling with their own hands the holdings assigned to them. 

 If this view of them be sound, we may see in them the beginnings of 

 a serf class. But it does not follow that the later colonate was a direct 

 growth from this beginning. We have noted above several other causes 

 contributing to that growth; in particular the state of de facto fixity 

 combined with increasing dependence, in which the free colonus was 

 gradually losing his freedom. Whether the later colonate will ever 

 receive satisfactory explanation in the form of a simple and convincing 

 theory, I cannot tell : at present it seems best to admit candidly that, 

 among the various influences tending to produce the known result, I 

 do not see my way 1 to distinguish one as supremely important, and to 

 ignore the effect of others. The opinion 2 of de Coulanges, that the 

 origin of the later colonate is mainly to be sought in the gradual effect 

 of custom (local custom), eventually recognized (not created) by law, 

 is perhaps the soundest attempt at a brief expression of the truth. 



XLIX. THE JURISTS OF THE DIGEST. 



For the position of the colonus in Roman Law during the period 

 known as that of the ' classic ' Jurists we naturally find our chief source 

 of evidence in the Digest. And it is not surprising that here and there 

 we find passages bearing on labour-questions more or less directly. 

 But in using this evidence it is most necessary to keep in mind the 

 nature and scope of this great compilation. First, it is not a collection 

 of laws. Actual laws were placed in the Codex, based on previous 

 Codes such as the Theodosian (439 AD), after a careful process of sift- 

 ing and editing, with additions to complete the work. This great task 

 was performed by Justinian's commissioners in 14 months or less. 

 The Justinian Code was confirmed and published in 529 AD, and 

 finally in a revised form rather more than five years later. Secondly, 

 the Digest is a collection of opinions of lawyers whose competence and 

 authority had been officially recognized, and whose responsa carried 

 weight in the Roman courts. From early times interpretation had 

 been found indispensable in the administration of the law; and in the 

 course of centuries, both by opinions on cases and by formal treatises, 

 there had grown up such a mass of written jurisprudence as no man 

 could master. These writings were specially copious in the 'classic' 

 period (say from Hadrian to Alexander 117-235). Actual laws are 

 sometimes cited in the form of imperial decisions, finally settling some 



1 This conclusion, I am pleased to find, had been forestalled by Esmein p 307. 

 * Le Colonat Romain pp 125, 132. 



