280 Grey
proactive. Moreover, the perspective they take is arguably more limited, for
their objective is not to extend the scope of the law, but rather to interpret the
legal implications of the socio-economic phenomena they encounter.
With particular reference to rural socio-economic relations, there are both
apparent continuities and evident departures from the legal constructs of the
preceding centuries. In the Edictum Theoderici, originarii appear to occupy a
legal position with reference to the owners of the land upon which they were
registered that is analogous to that of freedmen and slaves.76 Like liberti and
servi, they could not be heard in a legal case against their domini or the chil-
dren of their domini.77 They were associated with servi when punishments
were mandated for various crimes against property and persons.78 There is
a clear conceptual slippage here between a public law arrangement (origi-
narius and dominus) and a private law relationship (servus and dominus).
But originarii were not servi, and the concern in this collection to maintain
a juridical distinction between the two may be compared with that found in
the Interpretationes of the Breviarium.79 Elsewhere in the Edictum Theoderici
great care is taken to distinguish servi from freeborn men (ingenui), who were
not to be taken by solicitation, stolen, sold, or kept as a slave, nor were they
to be enslaved for debt or claimed as slaves.80 It seems therefore reasonable
to conclude, with caution, that the position of originarii lay in some kind of
middle space between freedom and slavery, but was neither intermediate nor
transitional between the two.81
The basis upon which this legal position was grounded is difficult to estab-
lish. We might expect it to have been their origo, the land upon which they
were registered, which would be in keeping with the legal position of regis-
tered tenants during the late Roman period. However, this impression is com-
plicated by a chapter of the Edictum Theoderici which grants domini the liberty
to move both servi and originarii between their estates. This chapter builds
76 See the recent exposition of Schipp, weströmische Kolonat, p. 277.
77 Edictum Theoderici 48.
78 E.g. Edictum Theoderici 56; 63.
79 For the continued separation of slavery and freedom in the Breviary: Koptev, “Colonate in
the Theodosian Code”, pp. 267–8. For juridical distinctions in Ostrogothic Italy, see Vera,
“Proprietà terriera”, pp. 143–5, and compare the detailed exposition of Schipp, weströ-
mische Kolonat, 277–88 who sees somewhat more slippage. Note also the briefer com-
ments of Lafferty, Law and Society, pp. 171–2.
80 Edictum Theoderici 78; 79; 96.
81 Thus Vera, “Proprietà terriera”, pp. 145–6. Note the contrasting but not necessarily contra-
dictory position of Koptev, “Colonate in the Theodosian Code”, p. 282.