AGRA´RIAE LEGES
AGRA´RIAE LEGES The laws so called were laws dealing
with the distribution of Roman public land (
ager
publicus), and in general may be said to have been laws providing
for giving to the poorer citizens allotments out of the land which belonged
to the state, and regulating the tenure on which these allotments and the
remaining bulk should be held. Modern discussion of the subject is founded
on the brilliant exposition by
[p. 1.50]Niebuhr, whose views
have been in their principal features universally adopted. The main
difficulty in coming to a positive opinion on the precise details of the
matter is that our earliest authority (except the fragments of the Lex
Thoria) is Cicero ; the earliest historians are still later, Livy and
Dionysius, and the most definite accounts are from the second century of the
Christian era, viz. from the Roman land-surveyors and the historian Appian.
We hear of assignments of land as early as Romulus (Varr.
R.
R. 1.10.2, fol.; cf.
Cic.
Rep. 2.14, 26). The first agrarian law, according
to Livy, was that proposed by Sp. Cassius, B.C. 486; but the aspect of the
matter which was present to the minds of Cicero and his age was that given
by the laws of the Gracchi, and the violent action of Sulla; the legal
arrangements present to the Roman land surveyors were those of the early
empire, after numerous assignments, with or without colonies, had been made
to their veterans by Julius and Augustus Caesar and their successors. The
surveys made under the Gracchi seem to have been the oldest of which clear
traces remained in the official records which the land surveyors had before
them. One can feel no confidence in the historical accuracy, either of the
language used or of the legal conceptions involved, when Romans, with
different arrangements before their eyes, were writing of the proposals of
Cassius or Licinius, four or more centuries removed from Cicero, and more
than six centuries from Appian or the Gromatici. But the general character
of the policy, its grounds and its hindrances, is clear enough.
The agrarian laws dealt with the state lands. These lands were the result of
conquest in war. It was not till towards the end of the republic that we
hear of the state's acquiring territory by the last will of a foreign
prince. War in the ancient world made the bodies and belongings of the
vanquished the absolute property of the victors. No doubt either policy or
pity generally interfered to prevent the full exercise of the power. In
Italy especially the persons were not usually made slaves; but, though the
conquered community was allowed to exist, it was deprived of part, often of
a third part, of its lands. These confiscated lands had sometimes been
utterly wasted in war, sometimes were still unhurt and in a state of
cultivation, sometimes consisted of moorland and wood. Each kind requires
separate treatment.
1. The cultivated lands were dealt with in one, or it may be in all,
of four ways.
a. Part sold by the quaestors (agri
quaestorii.).
Part was sold by the quaestors, and hence called
agri quaestorii. According to the Gromatici (pp. 115,
136, 152, ed. Lachmann), the land for this purpose was measured and
divided by balks (
limites) into square
plots (
laterculi), measuring 10
actus each side, and containing
fifty jugera, i. e. 31 acres, each. As containing 100 square
actus, it was sometimes called
centuria. The earliest instance
recorded of a sale was in the case of Pometia, where, although the
city was surrendered when about to be stormed, some of the chiefs
were slain, some of the husbandmen were sold as slaves, the town was
destroyed, and the land sold (
Liv. 2.17).
Such sales are referred to in
Liv. 4.48;
Dionys. A. R. 8.73; and the
general principle is mentioned by Appian,
App. BC 1.7; Plut.
Tib. Gr. 8. In the
second Punic war relief was given to the treasury by a sale of part
of the Campanian territory (
Liv. 28.46 ;
32.7), in one case by the quaestors (i.e.
quaestores urbani), in another by the censors.
Possibly in early days the quaestor attached to the army sold the
land either in block or rough parcels to Roman speculators. The sale
under the spear (
sub hasta) gave full
rights of ownership (Gai. 4.16). Conquest had extinguished all
previous title or claims to the land, and the state would of course
give legal effect to its own acts of transfer. The Gromatici appear
to speak of conditions being imposed (p. 115); of this nothing is
known, and the Gromatici had in view probably much later
arrangements.
b. Land given assigned in full ownership to Roman citizens.
Part was given and assigned in full ownership to Roman citizens. This
land was duly surveyed, measured, divided by balks into centuries,
each containing 200 jugera (125 acres), and assigned by lot to Roman
citizens. Such land was called
agri dati
adsignati (Grom. pp. 117, 118; 154-156, &c.).
The oldest assignments were two jugera to each man; this formed an
hereditament (
heredium), i.e. he had
not the mere use or life interest of the plot, but it passed to his
heirs after him. The lots of 100 men thus formed one century (
cent-uir-ia). Later on seven jugera were
regarded as the normal size of a lot (
Plin. Nat. 18.18), but in fact there was great variety,
the amount naturally depending upon the extent of land open to
distribution and the number of citizens to share in it. The survey
and distribution were effected by a special commission of three,
five, or ten men (
Cic. Agr. 2.7),
called
IIIviri A. D. A., i.e.
agris dandis adsignandis. Sometimes the distribution
was accompanied by the establishment of a colony at the place; at
other times the allottees were incorporated into some existing
colony or borough ; sometimes they remained at Rome and had their
allotments as well. The two former are principally regarded by the
Gromatici (e. g. p. 2); the last--called by Niebuhr (
R.
H. 2.622, Eng. Tr.), from a passage in Festus,
ager viritanus--has been described by
Mommsen (
C. I. L. i. p. 88; but see
Röm. Stadtrecht, ii. p. 618, ed. 2) as
having two characteristics: the assignment was made to all Roman
citizens, or at least to as many as the land admitted; and the
measurement of it was by
saltus of four
centuries each; whereas the colonial distributions were to a number
of persons specified in the law, and the land was divided by
centuries.
Viritim dividere or
adsignare, says Mommsen, might be applied to
the colonial land, but was properly applicable only to a
non-colonial distribution. This distinction, however, appears to
rest on quite insufficient grounds; it is inconsistent with Livy's
language in 4.47, 48, and 5.24, where
viritim
dividere is used, without further explanation, of
colonies. (See however Mommsen,
ll. cc.）
Neither Festus nor Varro appear to have had the distinction in view;
and the passage in Sic. Flacc., p. 154, quoted in support of it,
when compared with p. 160, is seen to apply to colonies and to have
been misunderstood by Mommsen. Siculus Flaccus is merely showing
that division and assignment are different things, and may be found
together (which is the usual case) or separately. But land, whether
for a colony or for a non-colonial distribution, was generally
divided into
[p. 1.51]centuries, sometimes into
oblong blocks (
strigae or
scamna, Grom. p. 2). Of the number or mode
of selecting the persons to share in a non-colonial assignment,
nothing is known. When the territory was at a distance of more than
a few miles from Rome, the applicants would hardly be more numerous,
as a rule, for an assignment which would attach the holder to an
existing colony, than for one which would make him member of a new
colony. And these assignments were evidently intended as ground for
residents, not as a mere money gift in the form of land. They were
however, as a fact, frequently bought up by some wealthy neighbour.
There is nothing to show that Varro in explaining
saltus is not referring to colonial land. The use and
application of such a
saltus is
unknown, as also is that of a
saltus of
25 centuries mentioned by Siculus Flacus (Grom. p. 158).
c. Part of the lands confiscated were given back (redditi) to their former proprietors.
Part of the lands confiscated were given back (
redditi) to their former proprietors. In some cases,
where a man owned pieces separated from one another, an exchange was
made, so that his possessions might be continuous. These were noted
in the official register as
redditi commutati pro
suis (Grom. 117, 55, &c.). No rent was imposed
on these plots any more than on those newly assigned to Roman
citizens (p. 116).
Land not disposed of.
Part was neither sold, nor assigned, nor restored to the former
owners. This happened where the number to share in the distribution
was not large enough for the quantity of land taken from the enemy.
The whole land, so far at least as it was cultivated, was or might
be duly surveyed, and divided into centuries, and allotted as far as
was required. The remainder was let for a rent (
vectigal). In some cases the letting or selling (for
both terms were often used: see Gai. 3.145;
Dig.
19,
2,
2）
was for a short period, apparently from year to year (
per annos, Grom. p. 116), or for a lustrum
(some editors adding
quinos: cf. pp.
117, 163;
Dionys. A. R. 8.73);
in other cases for 100 years or more (
in annos
centenos pluresve, so Huschke and Mommsen,
Stadtrecht, ii. p. 52, ed. 2). For these long
periods the lessees were state-contractors (
mancipes), who then sublet to the nearest occupiers.
There are however two difficulties in the passage of Hyginus, from
which this account is taken.
Mancipes qui emerunt
lege dicta jus vectigalis ipsi per centurias locaverunt aut
vendiderunt proximis quibusque possessoribus (p. 116).
What is
jus vectigalis? and what is
per centurias? Jus vectigalis was
understood by Niebuhr (ii. p. 140) and others as the right of
collecting the ground rent, but with this the following part of the
sentence seems scarcely to accord. (Voigt,
Jus
Nat. 4.587; Degenkolb,
Platzrecht, p.
238.) Hyginus had before his eyes the same facts probably that
Siculus Flaccus had. From Grom. pp. 162, 163, we see what these
facts were. The two classes of vacant lands which formed
agri vectigales were oddments and unallotted
centuries. Whether these were retained by the Roman state, or
granted to the colony, or restored to the borough or other
commonwealth from which the district for allotment was taken, they
were treated in much the same way. They were sold or let. If they
were let, the rent was called
vectigal.
Whether it was in money or kind, whether a lump sum for the
particular piece of land or so much per acre, whether a fixed amount
or a certain proportion of the produce (cf. p. 235), is not stated,
and may have varied considerably in different places, times, and
circumstances. Nor is anything said of the persons who actually did
the cultivation. They might be slaves or freemen, but they are not
recognised as having any right in the soil any more than the
plough-cattle, or the plough and other farming gear; but each,
according to its nature, would, if the farming was to succeed, have
to be maintained in active usefulness--i. e. fed, if animals;
repaired, if things. To the proprietor who did not farm the land
himself the
vectigal was the evidence
of ownership, and the realised permanent result. The interposition
of a
manceps between the owner and the
actual cultivation of the land did not really alter this. For the
manceps was not a mere collector of
rents fixed by others than himself, he was the lessee; he could work
the land himself if he chose, or engage with others to cultivate it:
if he did the latter, he received a rent from them such as he chose
or could get; and he in his turn, according to his agreement with
the owner, paid a rent to him (cf.
Dig. 19,
2,
53). Such
share of the produce as was more than was requisite, physically and
commercially, for the actuaL cultivator, represented the worth of
the land to the
manceps; and the same,
less what was similarly requisite for the remuneration of the
manceps, represented the worth of
the land in these circumstances to the owner. Given no tenant-right
in the actual cultivator--no right either to hold the land, or to
pay only a fixed amount or share--the
jus
vectigalis is the same thing as the
reditus (p. 162), and to buy this
jus vectigalis is to be lessee of the land. The view
of Niebuhr is here too narrow, because it assumes a right in the
cultivator which minimises the position and the possible and legal
profits of the
manceps. But there is a
natural propriety in the use of this term where a writer speaks of
buying. The
manceps did not buy the land from the state, as was the
case with the
agri quaestorii; he only
bought, as the ancients regarded it, the produce. This last was
really his own: he had the whole, not merely a percentage or
poundage out of it. He paid the state for the privilege, but the
payment by him has no legal connexion with, no defined proportion
to, the payment to him. He does not (or at least did not originally)
have an estate in the land: he buys the fruits, and the land is put
into his possession merely as the easiest way for the owner to
fulfil his bargain with him.
In this view the fact often mentioned in the Gromatici, that the
persons who eventually worked the oddments or unallotted centuries
were the nearest occupiers, is natural enough. A mere collector of
taxes would be one for the whole of a district, not each adjoining
occupier; but the latter is just the man for the practical
cultivation of the plot in the neighbourhood of his own farm.
The second difficulty is
per centurias.
It might mean “by centuries,” i. e. in plots of a
century each. But this does not apply well to the oddments. It
rather means “throughout the centuries,”
“in each century;” that is to say, whether the land to
be dealt with was an oddment
[p. 1.52]or a whole
century, in either case it would have neighbours: in the first case
possibly it would be let to an occupier in the same century ; in the
second case, and possibly in the first also, it would be let to some
working occupier in the next century, or at any rate to some one
near enough to work the land. For the meaning above given to
per centurias compare
saepe enim et viarum publicarum per centurias
modes exceptus est (Hyg. p. 121);
scio
quibusdam regionibus, cum adsignarentur agri, adscriptum aliquid
per centurias et flumini (ib. p. 125), and
per omnes centurias (Grom. p. 157),
per singulos agros (p. 146).
Hyginus mentions a long term for a lease, viz. 100 years (or more,
according to Mommsen's reading), as well as a short one--five years
or one. This long term probably led to what we find in Gaius and the
Digest, where
agri vectigales are
defined as those lands which are let
in
perpetuum, the conditions being that so long as the
rent (
vectigal) was paid the lessees
were not to be disturbed. Such leases were only found in the case of
lands belonging to municipal or religious corporations (Gai. 3.145;
Dig. 6,
3).
Longer terms than five years were forbidden by the law of the colony
at Ossuna (cap. 82; Bruns, p. 116). The nearest analogy in English
law is that of the church and college leases, which were continually
renewed on the payment of a fine for the renewal, besides the annual
rent. A claim was urged by these lessees to a perpetual tenure on
the same terms, but was overruled, and the tenure is now dying out.
In the days of the Republic the exigencies of the treasury led to a
peculiar but similar tenure. In B.C. 200 those persons to whom the
third instalment of a loan made ten years before (
Liv. 26.36) was due, had their demands
satisfied by a grant of lands to the value of their claim within
fifty miles of Rome, that tenure being determinable only on the
lessees preferring to receive their money instead, and the
seignorial rights of the state being served by a rent of one
as per juger being imposed. These lands were
called
trientabula (
Liv. 31.13). Mention is also made of them in the
fragments of the Lex Thoria, line 31, but nowhere else.
2. Uncultivated lands.
Besides the cultivated lands still in condition to be sold or let, there
were the mountain pastures and woods. The mountain pastures and woods
were often granted (
concessa) to the old
proprietors, or to the municipality, or to the new Roman colony, or
reserved to the state. And other tracts of land were often useful as
pastures where there were not sufficient farmers to require them as
arable land (Grom. pp. 21, 133, 201, &c.). Sometimes a small
rent was required, and then they came under the head of
agri vectigales (pp. 203, 205). Sometimes strips
of wood on the mountain were annexed by the original assignment to the
different estates (
fundi) of private
persons (pp. 48). Pastures in like manner were sometimes appropriated to
individuals, but held
pro indiviso;
sometimes made common to the whole of the community (Grom. p. 48).
Appian (
App. BC 1.7) says that taxes were
laid for the use of the common pastures, both for larger and smaller
animals, i. e. horned cattle and sheep. The last was collected by the
publicans. All animals turned on to these pastures were declared to the
tax-farmer, and registered in their books (Varr:
R. R.,,
1.16; Festus, v.
scripturarius, p. 333),
and the word
scriptura was frequently used
both of the registration and of the tax itself (e. g.
Cic. Ver. 2.70, 169; Lex Thor. 19, &c.). Pliny mentions that even in
his day the term for revenue in the censor's books was
pascua (cf.
Cic. Agr.
1.1, § 3), because for a time this was the only
vectigal (
H. N. 18.11).
The farmers of this tax were called (p. 37)
publicani
scripturarii. The
pecuarii in
Liv. 10.23.13, are by some taken to
be farmers of this tax (Marquardt,
Staatsverw. 2.292), by
Huschke to be large occupiers (
Varr. p. 8). Ovid (
Ov. Fast. 5.283) speaks of a time when
persons used to send their herds on the public pastures without being
fined for it. No doubt the practice of
imposing a tax for the use of the pasture, and collecting it through
tax-farmers, was not adopted or regularly enforced till the
administration of the republican finances had grown out of its infancy.
In the early times indeed the Romans must, like other nations, have lived
more on the produce of their sheep and cattle than on the produce of
tilled land. And this is supported, as Mommsen has shown, by the
smallness of the allotments first spoken of--two jugera. A slave
required, according to Cato ( § 51), fifty-one pecks (
modios) of corn in the year; a jugerum required
five pecks for seed, and produced twenty-five pecks. Hence the
heredium would, if all given to corn, produce
forty pecks a year, after deducting the seed. It is clear therefore that
it could not support a man and his family on wheat. And spelt is still
less profitable as food (
Gesch R. i. pp. 184-187, notes).
The common pasture was therefore a necessity. So in England, a tenant in
former times (says Joshua Williams,
Real Prop. p. 496,
ed. 13) “required a house to live in, arable land for his
maintenance, pasture for his cattle, acorns for his pigs, and wood
for fuel and repairs.” Hence “common appendant is the
common law right which every free tenant of arable land in a manor
had to depasture upon the lord's wastes all cattle subservient to
the tillage and manurance of such land; namely, horses, beasts, and
sheep” (ib. p. 509).
3. Testimony of Appian.
Appian, in the passage above referred to, says that “the larger
part of the lands taken from the conquered had been wasted by war,
and uncultivated (
ἀργὸν ἐκ τον̂
πολέμου). As the Romans had no time to distribute it,
they gave notice that any one who liked might temporarily work it,
paying a tax of a yearly tenth of the seed crops, and a fifth of the
plantations (i. e. fruits, for instance olives and grapes).”
There is no other authority for this definite historical statement of a
notice and a tax. (Plut.
Tib. Gr. 8 is of doubtful
reference.) The Gromatici speak frequently of
agri
occupatorii, i.e. lands belonging to squatters, and
explain that it was conquered land occupied by individuals.
Singuli deinde terram, nec tantum occupaverunt quod colere
potuissent sed quantum in spem colendi reservavere (Sic.
Flac. p. 137; cf. Hygin. 115; Festus, p. 241, s. v.
possessiones.) Livy (
4.36),
speaking of the year 422 B.C., says that some
candidates for the tribuneship of the soldiers held out hopes of putting
a rent (
vectigal) on the holders of the
public land, and
[p. 1.53]applying it to the pay of the
soldiers. The first regular pay was made in 406 B.C. (
Liv. 4.59); nothing is there said of the
imposition of a ground rent on the occupiers of the public land, but the
pay is defrayed from a tax upon every one (
tributum.）
The word most frequently used to denote this occupation is
possidere; the occupiers are
possessores, the lands are
possessiones. These are the natural expressions for the
fact which was patent, and do not by themselves denote or imply anything
respecting the title by which the occupiers held. The possession,
however, was something different from the actual physical possession. In
the case of land this will always be the case. The one or two square
feet on which a man stands is not what is meant when a person is said to
be in possession of a piece of land. Control as owner, real or apparent,
is the meaning of possession generally, and particularly in the case of
land. Whether this control is recognised, and to what extent, by the
law, is another question. That the occupation was recognised by the law
in the case of the public lands is clear from the fact that interference
with it by the state was the subject not of judicial proceedings but of
legislative enactment. It was indeed a standing principle of Roman law
that what is taken from the enemy in war becomes at once the property of
the captor (
capientium fit, D. 41, 1, 5.7;
Gai. 2.69, 4.16); and the captor in the case of land would be the Roman
people, acting in the first instance through the commander of the
victorious army. An allied though not identical principle was that land
or anything else which was found without an owner became the property of
him who seized it (
capientium fit, occupanti
conceditur, D. 41, 1, 1; 3; 7.3). Here comes in the
language of the Gromatici above quoted, and of Livy, who makes Licinius
speak of the election of a plebeian consul as necessary to effect a
modum agros occupandi (6.37
init.). But an occupation of lands known to
belong to the state could give no right to possess as against the state.
Possession was protected by the law without regard to title, but on the
negative condition that it had been obtained neither by force, nor by
stealth, nor by request (
nec vi, nec clam, nec
precario) from the opposing litigant. And the state
therefore lost none of its rights by the occupation by private persons
of the territory it had conquered. Whether forcible or secret, or by
permission, the occupation gave no rights to the possessor which were
good against the state. (D. 41, 3, 9; 24.)
In the above it has been assumed that the principles respecting
possession, which in later times were embodied in the praetor's edict,
existed in effect long before. Niebuhr has suggested that the occupation
of the public lands gave rise to the establishment of legal protection
in the form of equitable injunctions (
interdicta
praetoris) for possessors, and that by analogy these rules
were applied to land not belonging to the public, but otherwise occupied
in a similar manner. And Savigny has supported this view (
Recht
des Besitzes, § 12 A, p.
197, ed. 7. See however Puchta,
Cursus,
§ 227; Schwegler,
R. G. ch. 25.6;
Böcking,
Pand. 1.123, n. 30). Be that as it may,
the conditions of protection of possession (in the case of parts of the
public land assigned as private property) are expressed in the usual
words in the oldest document we have, viz. the Lex Thoria, 5.18; and
applied to cases of illicit occupation of public lands in Cicero's third
speech against Rullus (3.11).
Cicero's language is the more important because he is the earliest extant
writer on the subject ; and, as a statesman who had actually to deal
with proposals by Rullus and by Flavius (
Att. 1.18.6;
19.4), for agrarian laws is, if we make allowance for the language of a
party-orator, as competent a writer as we could desire. Sulla's
outrageous confiscations of private property, and his grants of large
tracts of land to his favourites and to his soldiers, were scarcely
twenty years old, and were intended to be confirmed by the law of
Rullus; and Cicero in the discussion of Flavius's law proposed the same
(
Sullanorum hominum possessiones
confirmabam.) In the following year (B.C. 59) Julius Caesar
carried an agrarian law, and it is of Julius Caesar that he is speaking
in the second book (24, 84) of the
de
Officiis, written shortly after Caesar's death.
Cicero says (
Agr. 2.26),
antea cum erat
a tribuno plebis mentio legis agrariae facta, continuo qui agros
publicos aut possessiones invidiosas tenebant
pertimescebant, the latter part of which is illustrated by
Agr. 3.3, 12.
Sunt multi agri lege
Cornelia publicati nec cuiquam assignati neque venditi qui a paucis
hominibus impudentissime possidentur. The use of
possidere and its derivatives is not precise
throughout these speeches (cf. Savigny,
Recht des
Besitzes, § 8, p. 104d. 7). The words are applied to
owners just as we speak of a person's
possessions, or what he
possesses, without
any intention of distinguishing between ownership and possession (e. g.
2.29.81; 30.82; 31.85; 3.4.15); but land could not, properly speaking,
be public (i. e. owned by the state) and private as well. Hence
possess is naturally applicable to public land,
and possession of the public land had sometimes an unjust origin in
Cicero's time, as we may well believe it had in earlier times. But
Cicero lays great stress on length of possession, even of public
property. Land in the provinces being conquered territory was, by Roman
law, incapable of absolute ownership by private persons. They could, to
use the phrase of English law, only hold an estate in these lands.
In provinciali solo dominium populi Romani est vel Caesaris,
nos autem possessionem tantum vel usumfructum habere videmur
(Gai. 2.7; cf. Frontin.
Grom. p. 35). Thus Cicero says of
some Sicilian land:
Qui agrum Recentoricum possident,
vetustate possessionis se non jure, misericordia senatus non agri
condicione defendunt, nam illum agrum publicum esse fatentur, se
moveri possessionibus, amicissimis sedibus ac dis penatibus negant
oportere (
Agr. 2.21, 57). In the
de Officiis (2.22, 78), with Caesar's measures
in his mind, he classes together the expulsion of possessors, which was
the object of agrarian laws, and the wiping out debts incurred by loan
of money, which was another democratic measure. Cicero speaks of both
proposals in the same language as measures weakening the foundations of
the state. These foundations are common feeling and equity (
concordia et aequitas). Common feeling is
[p. 1.54]weakened when moneys are taken from some and
given to others. Equity is utterly destroyed if individuals are not
allowed to keep their property (
si habere suum cuique
non licet).
Quam autem habet aequitatem
ut agrum multis annis aut etiam saeculis ante possessum, qui nullum
habuit, habeat, qui autem habuit amittat? He instances the
action of Aratus, who, when he overthrew a despotism which had lasted at
Sicyon for fifty years, brought with him a large number (
sexcentos) of exiles who had been the richest
men in the state. He then had to deal with the opposing claims of these
to their former property (
bona), and of the
men who had enjoyed them for so long a period. In that time fair claims
had grown up.
Jam longo spatio multa hereditatibus,
multa emptionibus, multa dotibus tenebantur sine injuria.
It was
iniquissimum that the old
proprietors should be in want, it was
non nimis
aequum that fifty years' possession should be disturbed
(ib. 23.81). Appian puts similar arguments into the mouths of the rich.
They pleaded the improvements they had effected on the land, their
plantations (vines and olives?), and buildings; some of the land they
had bought from their neighbours; it held their fathers' tombs; it had
been distributed like ancestral property; they had invested in it the
dowries of their wives, and given it in dowry with their daughters.
Mortgagees complained that they held it as security for loans
(
Bell. Civ. 1.10). In the speeches made, according to
Dionysius, by Appius and Sempronius Atratinus on the occasion of Sp.
Cassius's proposals, there is an acknowledgment that parts of the public
land had been occupied by private persons unjustly, by force or stealth,
and the proposal was made and approved by the senate that the public
land should be ascertained, marked out, and partly allotted to the
plebeians, partly let for five years (8.73-76). And Livy (
4.51) describes an agrarian law (B.C. 413) as
one which
possesso per injuriam agro publico patres
pellebat, and the people as feeling that if a distribution
were not made of the land recently taken and then vacant, it would soon
be the prey of the few. The language used in reference to the Licinian
laws is not certainly applicable, as--though it is usually regarded as
an agrarian law dealing with the public lands (see Madvig,
Verfassung, ii. p. 372)--Huschke, followed by Clason
(bk. iv. cap. 2), and apparently Marquardt (
Staatsverw.
1.102, ed. 2), holds that it was a general measure limiting the extent
of land to be held by any one on whatever title, and related not only to
the occupation of the public land but to private land also. The penalty
was a fine; subject to the fine the land could be held. Whatever may
have been the real truth of the matter, the Licinian laws were treated
of by Appian and Plutarch in connexion with the agrarian laws of the
Gracchi.
On the whole it does not seem probable that any definite arrangement was
made in early times for the occupation of public land which was not
assigned or sold or leased; and the legal claim of the state to deal
with it was as incontestable in theory as it was difficult to enforce
without the destruction of those reasonable expectations, arising from
long use, which are the foundation of the statesman's view of property.
It is disputed whether the patricians alone (to the exclusion of the
plebeians) had, before the Licinian laws, the right to hold the public
land (see Schwegler, ch. 25.9; Madvig,
Verf. pp. 90, 91):
as a fact it was probably the case. They were originally, and continued
for long to be, the holders of the government, and they were, as a rule,
the richest. Now the occupation of tracts of land wasted in war was not
a poor Roman's business; it was at a distance; it required capital; and
it was insecure, partly from the enemy on the border, and partly from
the state's not having assigned it as private property. Neither the
peasant nor the small capitalist would find the occupation of such land
at a distance from Rome attractive; moreover, he was liable to be called
off to serve in war. The rich man could risk something, could employ
slave-labour, could judge of the political prospects, and have a
potential voice in the actions of the state. Such possessions had a
natural tendency to accumulate in the hands of the few. The holders
added field to field (
continuare agros, cf.
Cic. Agr. 3.4, § 14;
Liv. 34.4.9), partly by purchase from their
poorer neighbours, partly by violence, partly by taking in any vacant
land adjoining (
Sal. Jug. 41; Sen.
Ep. 90.39; Front.
Grom. pp. 48, 53).
Thus were formed the large estates (
latifundia, lati fundi,
Grom. pp. 157, 161) which, worked by slaves, drove out, or gave
no opening for, free peasants, and, portending the ruin of Italy
(
verum confitentibus latifundia perdidere
Italiam,
Plin. Nat. 18.35), roused the Gracchi
to their famous legislation.
See further under the headings LEX LICINIA,
SEMPRONIA, THORIA. The political struggles in reference to
these and other enactments are treated in general histories.
An echo of the old controversies was roused by Vespasian, who made fresh
assignments to veterans, and in doing so probably had his attention
directed to the quantity of oddments (
subseciva）
and unallotted lands which had never been formally dealt with, and, in
consequence, had been usurped by the local community or by the adjoining
occupiers. He proceeded to sell them for the benefit of the imperial
chest. But deputations came to the emperor, and piteously represented
the general alarm which this disturbance of long-standing occupations
had occasioned--
quassabatur universus Italiae possessor.
Vespasian stayed his hand, but Titus resumed the action. Domitian issued
an edict granting the oddments throughout Italy to the occupiers
(
Grom. pp. 53, 133, 163). Suetonius uses a metaphor
when he says “subseciva veteribus possessoribus
ut usucapta concessit” (
Dom.
9).
[
H.J.R]
