AGRA′RIAE LE′GES. "It is not exactly true that the agrarian law of Cassius was the earliest that was so called: every law by which the commonwealth disposed of its public land, bore that name; as, for instance, that by which the domain of the kings was parcelled out among the commonalty, and those by which colonies were planted. Even in the narrower sense of a law whereby the state exercised its ownership in removing the old possessors from a part of its domain, and making over the right of property therein, such a law existed among those of Servius Tullius." (Niebuhr, Rom. Hist. vol. II p129, transl.)
The complete history of the enactments called agrarian laws, either in the larger and more correct sense, or in the narrower sense of the term, as explained in this extract, would be out of place here. The particular objects of each agrarian law must be ascertained from its provisions. But all these numerous enactments had reference to the public land; and many of them were passed for the purpose of settling Roman colonies in conquered districts, and assigning to the soldiers, who formed a large part of such colonists, their shares in such lands. The true meaning of all or any of these enactments can only be understood when we have formed a correct notion of property in land, as recognised by Roman law. It is not necessary, in order to obtain this correct notion, to ascend to the origin of the Roman state, though if a complete history of Rome could be written, our conception of the real character of property in land, as recognised by Roman law, would be more enlarged and more precise. But the system of Roman law, as it existed under the emperors, contained both the terms and the notions which belonged to those early ages, of which they are the most faithful historical monuments. In an inquiry of the present kind, we may begin at any point in the historical series which is definite, and we may ascend from known and intelligible notions which belong to a later age, towards their historical origin, though we may never be able to reach it.
Gaius (II.2, &c.), who probably wrote under the Antonines, made two chief divisions of Roman land; that which was divini juris, and that which was humani juris. Land which was divini juris was either sacer or religiosus (cf. Frontinus, De Re Agraria, XIII. or p42, ed. Goes). Land which was sacer was consecrated to the Dii Superi; land which was religiosus belonged to the Dii Manes. Land was made sacer by a lex or senatus consultum; and, as the context shows, such land was land which had belonged to the state (populus Romanus). An individual could make a portion of his own land religiosus by the interment in it of one of his family: but it was the better opinion that land in the provinces could not thus be made religiosus; and the reason given is this, that the ownership are property in provincial lands is either in the state (pop. Rom.) or in the Caesar, and that individuals have not the possession and enjoyment of it (possessio et usus fructus). Provincial lands were either stipendiaria or tributaria: the stipendiaria were in those provinces which were considered to belong to the Roman state; the tributaria were in those provinces which were considered as the property of the Caesar. Land which was humani juris, was divided into public and private: public land belonged to the state; private land, to individuals.
It would seem to follow from the legal form observed in making land sacer, that it thereby ceased to be publicus; for if it still continued publicus, it had not changed its essential quality. Niebuhr (Appendix I vol. II) has stated that "all Roman land was either the property of the state (common land, domain), or private property, — aut publicus aut privatus;" and he adds that "the landed property of the state was either consecrated to the gods (sacer), or allotted to men to reap its fruits (profanus, humani juris)." Niebuhr then refers to the view of Gaius, who makes the division into divini juris and humani juris, the primary division; but he relies on the authority of Frontinus, supported by Livy (Liv. VIII.14), as evidence of the correctness of his own division.1
Though the origin of that kind of property p38 called public land must be referred to the earliest ages of the Roman state, it appears from Gaius that under the emperors there was still land within the limits of the empire, the ownership of which was not in the individuals who possessed and enjoyed it, but in the populus Romanus, or the Caesar. This possession and enjoyment are distinguished by him from ownership (dominium). The term possessio frequently occurs in those jurists from whom the Digest was compiled; but in these writers, as they are known to us, it applies only to private land, and the Ager Publicus is hardly, if at all, ever noticed by them. Now this term Possessio, as used in the Digest, means the possession of private land by one who has no kind of right to it; and this possessio was protected by the praetor's interdict, even when it was without bona fides or justa causa: but the term Possessio in the Roman historians, Livy for instance, signifies the occupation (occupatio) and enjoyment of public land; and the true notion of this, the original Possessio, contains the whole solution of the question of the Agrarian Laws. For this solution we are mainly indebted to Niebuhr and Savigny.
This latter kind of Possessio, that which has private land for its object, is demonstrated by Savigny (the term here used can hardly be said to be too strong) to have arisen from the first kind of possessio: and thus it might readily be supposed that the Roman doctrine of possessio, as applied to the occupation of private land, would throw some light on the nature of that original possessio out of which it grew. In the imperial period, public land had almost ceased to exist in the Italian peninsula, but the subject of possession in private lands had become a well understood branch of Roman law. The remarks in the three following paragraphs are from Savigny's valuable work, Das Recht des Besitzes (5th ed. p172):—
1. There were two kinds of land in the Roman state, ager publicus and ager privatus: in the latter alone private property existed. But conformably to the old constitution, the greater part of the ager publicus was occupied and enjoyed by private persons, and apparently by the patricians only, or at least by them chiefly till the enactment of the Licinian Rogations; yet the state could resume the land at pleasure. Now we find no mention of any legal form for the protection of the occupier, or Possessor as he was called, of such public land against any other individual, though it cannot be doubted that such a form actually existed. But if we assume that the interdict which protected the possession of an individual in private land, was the form which protected the possessor of the public land, two problems are solved at the same time, — an historical origin is discovered for possession in private land, and a legal form for the protection of possession in public land.
An hypothesis, which so clearly connects into one consistent whole, facts otherwise incapable of such connection, must be considered rather as evolving a latent fact, by placing other known facts in their true relative position, than as involving an independent assumption. But there is historical evidence in support of the hypothesis.
2. The words possessio, possessor, and possidere are the technical terms used by writers of very different ages, to express the occupation and enjoyment of the public lands; that is, the notion of occupying and enjoying public land was in the early ages of the republic distinguished from the right of property in it. Nothing was so natural as to apply this notion, when once fixed, to the possession of private land as distinct from the ownership; and accordingly the same technical terms were applied to the possession of private land. Various applications of the word possessio, with reference to private land, appear in the Roman law, in the bonorum possessio of the praetorian heres and others. But all the uses of the word possessio, as applied to ager privatus, agreed in this:— they denoted an actual possession and enjoyment of a thing, without the strict Roman (Quiritarian) ownership.
3. The word possessio, which originally signified the right of the possessor, was in time used to signify the object of the right. Thus ager signified a piece of land, viewed as an object of Quiritarian ownership; possessio, a piece of land, in which a man had only a bonitarian or beneficial interest, as, for instance, Italic land not transferred by mancipatio, or land which from its nature could not be the subject of Quiritarian ownership, as provincial lands and the old ager publicus. Possessio accordingly implies usus; ager implies proprietas or ownership. This explanation of the terms ager and possessio is from a jurist of the imperial times, quoted by Savigny (Javolenus, Dig. 50 tit. 16 s115); but its value for the purpose of the present inquiry is not on that account the less. The ager publicus, and all the old notions attached to it, as already observed, hardly occur in the extant Roman jurists; but the name possessio, as applied to private land, and the legal notions attached to it, are of frequent occurrence. The form of the interdict, —uti possidetis, — as it appears in the Digest, is this:— Uti eas aedes. . . possidetis . . . vim fieri veto. But the original form of the interdict was: Uti nunc possidetis eum fundum, &c. (Festus in Possessio); the word fundus, for which aedes was afterwards substituted, appears to indicate an original connection between the interdict and the ager publicus.
We know nothing of the origin of the Roman public land, except that it was acquired by conquest, and when so acquired it belonged to the state, that is, to the populus, as the name publicus (populicus) imports; and the original populus was the patricians only. We may suppose that in the early periods of the Roman state, the conquered lands being the property of the populus, might be enjoyed by the members of that body, in any way that the body might determine. But it is not quite clear how these conquered lands were originally occupied. The following passage from Appian (Civil Wars, I.7) appears to give a probable account of the matter, and one which is not inconsistent with such facts as are otherwise known:— "The Romans," he says, "when they conquered any part of Italy, seized a portion of the lands, and either built cities in them, or sent Roman colonists to settle in the cities which already existed. Such cities they designed to be garrison places. As to the land thus acquired from time to time, they either divided the cultivated part among the colonists, or sold it, or let it to farm. As to the land which had fallen out of cultivation in consequence of war, and which, indeed, was the larger p39 part, having no time to allot it, they gave public notice that any one who chose might in the meantime cultivate this land, on payment of part of the yearly produced, namely, a tenth of the produce of arable land, and a fifth of the produce of olive-yards and vineyards. A rate was also fixed to be paid by those who pastured cattle (on this undivided land) but for the larger and smaller animals. And this they did with a view to increase the numbers of the Italian people, whom they considered to be the most enduring of labour, in order that they might have domestic allies. But it turned out just the contrary of their expectations. For the rich occupied the greater part of this undivided land, and at length, feeling confident that they should never be deprived of it, and getting hold of such portions as bordered on their lands, and also of the smaller portions in the possession of the poor, some by purchase and others by force, they became the cultivators of extensive districts instead of farms. And in order that their cultivators and shepherds might be free from military service, they employed slaves instead of freemen; and they derived great profit from their rapid increase, which was favoured by the immunity of the slaves from military service. In this way the great became very rich, and slaves were numerous throughout the country. But this system reduced the number of the Italians, who were ground down by poverty, taxes, and military service; and whenever they had a respite from these evils, they had nothing to do, the land being occupied by the rich, who also employed slaves instead of freemen." This passage, though it appears to contain much historical truth, does not distinctly explain the original mode of occupation; for we can scarcely suppose that there were not some rules prescribed as to the occupation of this undivided land. Livy also gives no clear account of the mode in which these possessions were acquired; though he states in some passages that the conquered lands were occupied by the nobles, and occupation (occupatio) in its proper sense signifies the taking possession of vacant land. As the number of these nobles was not very great, we may easily conceive that in the earlier periods of the republic, they might regulate among themselves the mode of occupation. The complaint against the nobles (patres) shortly before the enactment of the Licinian Rogations was, that they were not content with keeping the land which they illegally possessed (possesso per injuriam agro), but that they refused to distribute among the plebs the vacant land (vacuum agrum) which had then recently been taken from the enemy (Liv. IV.51, VI.5.35; Occupatio). It was probably sometimes happened that public land was occupied, or squatted on (to use a North American phrase), by an adventurer.2
But whatever was the mode in which these lands were occupied, the possessor, when once in possession, was, as we have seen, protected by the praetor's interdict. The patron who permitted his client to occupy any part of his possession as tenant at will (precario), could eject him at pleasure by the interdictum de precario; for the client did not obtain a possession by such permission of his patron. The patron would, of course, have the same remedy against a trespasser. But any individual, however humble, who had a possession, was also protected in it against the aggression of the rich; and it was "one of the grievances bitterly complained of by the Gracchi, and all the patriots of their age, that while a soldier was serving against the enemy, his powerful neighbour, who coveted his small estate, ejected his wife and children." (Nieb.) The state could not only grant the occupation or possession of its public land, but could sell it, and thus convert public into private land. A remarkable passage in Orosius (Savigny, p176, note), shows that public lands, which had been given to certain religious corporations to possess, were sold in order to raise money for the exigencies of the state. The selling of that land which was possessed, and the circumstance of the possession having been a grant or public act, are both contained in this passage.
The public lands which were occupied by possessors, were sometimes called, with reference to such possession, occupatorii; and, with respect to the state, concessi. Public land which became private by sale was called quaestorius; that which is often spoken of as assigned (assignatus), was marked out and divided (limitatus) among the plebeians in equal lots, and given to them in absolute ownership, or it was assigned to the persons who were sent out as a colony. Whether the land so granted to the colony should become Roman or not, depended on the nature of the colony. The name ager publicus was given to the public lands which were acquired even after the plebs had become one of the estates in the Roman constitution, though the name publicus, in its original sense, could no longer be applicable to such public lands. After the establishment of the plebs as an estate, the possession of public land was still claimed as the peculiar privilege of the patricians, as before the establishment of the plebs it seems to have been the only way in which public lands were enjoyed by the populus: the assignment, that is the grant by the state of the ownership of public land in fixed shares, was the privilege of the plebs. In the early ages, when the populus was the state, it does not appear that there was any assignment of public lands among the populus, though it may be assumed that public lands would occasionally be sold; the mode of enjoyment of public land was that of possessio, subject to an annual payment to state. It may be conjectured that this ancient possessio, which we cannot consider as having its origin in anything else than the consent of the state, was a good title to the use of the land so long as the annual payments were made. At any rate, the plebs had no claim upon such ancient possessions. But with the introduction of the plebs as a separate estate, and the acquisition of new lands p40 by conquest, it would seem that the plebs had as good a title to a share of the newly conquered lands, as the patricians to the exclusive enjoyment of those lands which had been acquired by conquest before the plebs had become an estate; and according to Livy (IV.49), the plebs founded their claim to the captured lands on their services in the war. The determination of what part of newly conquered lands (arable and vineyards) should remain public, and what part should be assigned to the plebs, which, Niebuhr says, "it need scarcely be observed was done after the completion of every conquest," ought to have been an effectual way of settling all disputes between the patricians and plebs as to the possessions of the former; for such an appropriation, if it were actually made, could have no other meaning than that the patricians were to have as good title to possess their share as the plebs to the ownership of their assigned portions. The plebs at least could never fairly claim an assignment of public land, appropriated to remain such, at the time when they received the share of the conquered lands to which they were intitled. But the fact is, that we have no evidence at all as to such division between lands appropriated to remain public and lands assigned in ownership, as Niebuhr assumes. All that we know is, that the patricians possessed large tracts of public land, and that the plebs from time to time claimed and enforced a division of part of them. In such a condition of affairs, many difficult questions might arise; and it is quite as possible to conceive that claims of the plebs might in some cases be as ill founded as the conduct of the patricians was alleged to be rapacious in extending their possessions. In the course of time, owing to sales of possessions, family settlements, permanent improvements made on the land, the claims on the land of creditors who had lent money on the security of it, and other causes, the equitable adjustment of rights under an agrarian law was impossible; and this is a difficulty which Appian (I.10, 18) particularly mentions as resulting from the law of Tib. Gracchus.
Public pasture lands, it appears, were not the subject of assignment.
The property (publicum) of the Roman people consisted of many things besides land. The conquest of a territory, unless special terms were granted to the conquered, seems to have implied the acquisition by the Roman state of the conquered territory and all that it contained. Thus not only would land be acquired, which was available for corn,º vineyards, and pasture; but mines, roads, rivers, harbours, and, as a consequence, tolls and duties. If a Roman colony was sent out to occupy a conquered territory or town, a part of the conquered lands was assigned to the colonists in complete ownership. [Colonia.] The remainder, it appears, was left or restored to the inhabitants. Not that we are to understand that they had the property in the land as they had before; but it appears that they were subject to a payment, the produce of which belonged to the Roman people. In the case of the colony sent to Antium, Dionysius (IX.60) states, "that all the Antiates who had cultivated both the portions that were set aside for them and the portions appropriated to the colonists, on the condition of paying to them a fixed portion of the produce;" in which case, if the historian's statement is true, all the sums paid by the original landholders were appropriated to the colonists. Niebuhr seems to suppose, that the Roman state might at any time resume such restored lands; and, no doubt, the notion of a possibility of resumption under some circumstances at least was involved in the tenure by which these lands were held; but it may be doubted if the resumption of such lands was ever resorted to except in extraordinary cases, and except as to conquered lands which were the public lands of the conquered state. Private persons, who were permitted to retain their lands subject to the payment of a tax, were not the possessors to whom the agrarian laws applied. In many cases large tracts of land were absolutely seized, their owners having perished in battle or been driven away, and extensive districts, either not cultivated at all or very imperfectly cultivated, became the property of the state. Such lands as were unoccupied could become the subject of out of; and the possessor would, in all cases, and in whatever manner he obtained the land, be liable to a payment to the state, as above-mentioned in the extract from Appian.
This possessio was a real interest, for it was the subject of sale: it was the use (usus) of the land; but it was not the ager or property. The possessio strictly could not pass by the testament of the possessor, at least not by the mancipatio (Gaius, II.102). It is not easy, therefore, to imagine any mode by which the possession of the heres was protected, unless there was a legal form, such as Savigny has assumed to exist for the general protection of possessiones in the public lands. The possessor of public land never acquired the ownership by virtue of his possession; it was not subject to usucapion. The ownership of the land which belonged to the state, could only be acquired by the grant of the ownership, or by purchase from the state. The state could at any time, according to strict right, sell that land which was only possessed, or assign it to another than the possessor. The possession was, in fact, with respect to the state, precarium; and we may suppose that the lands so held would at first receive few permanent improvements. In course of time, and particularly when the possessors had been undisturbed for many years, possession would appear, in an equitable point of view, to have become equivalent to ownership; and the hardship of removing the possessors by an agrarian law would appear the greater, after the state had long acquiesced in their use and occupation of the public land.
In order to form a correct judgment of these enactments which are specially cited as agrarian laws, it must be borne in mind that the possessors of public lands owed a yearly tenth, or fifth, as the case might be, to the state. These annual payments were, it seems, often withheld by the possessors, and thus the state was deprived a fund for the expenses of war and other general purposes.
The first mention by Livy of conquered land being distributed among the plebs belongs to the reign of Servius Tullius (I.46, 47). The object of the agrarian law of Sp. Cassius (Liv. II.41; Dionys. VIII.70), B.C. 484, is supposed by Niebuhr to have been "that the portion of the populus in the public lands should be set apart, that the rest should be divided among the plebeians, that the tithe should again be levied and applied to paying the army." The agrarian law of C. Licinius Stolo (Liv. VI.36; p41 Appian, B. C. I.8) B.C. 365, limited each individual's possession of public land to 500 jugera, and imposed some other restrictions; but the possessor had no better title to the 500 jugera which the law left him, than he formerly had to what the law took from him. [Liciniae Leges.] The surplus land was to be divided among the plebeians, as we may assume from this being an agrarian law. The Licinian law not effecting its object, Tib. Sempronius Gracchus, B.C. 133, revived the measure for limiting the possession of public land to 500 jugera. The arguments of the possessors against this measure, as they are stated by Appian (B. C. I.10), are such as might reasonably be urged; but he adds that Gracchus proposed to give to each possessor, by way of compensation for improvements made on the public land, the full ownership of 500 jugera, and half that quantity to each of his sons if he had any. Under the law of Tiberius Gracchus three commissioners (triumviri) were to be chosen annually by the thirty-five tribes, who were to decide all questions that might arise as to the claims of the state to lands in the occupation of possessors. The law provided that the land which was to be resumed should be distributed in small allotments among the poorer citizens, and they were not to have the power of alienating their allotments. Gracchus also proposed that the ready money which Attalus III, King of Pergamus, had with all his other property bequeathed to the Roman state, should be divided among the persons who received allotments, in order to enable them to stock their land. Tiberius Gracchus lost his life in a riot B.C. 133; but the senate allowed the commissioners to continue their labours. After the death of Tiberius Gracchus, a tragical event happened at Rome. P. Cornelius Scipio, who had maintained the cause of the possessors, both Roman and Italian, against the measure of Gracchus, was found dead in his bed. Suspicion was strong against the party of Caius Gracchus, the younger brother of Tiberius, whose sister Sempronia was the wife of Scipio, but no inquiry was made into the cause of Scipio' death. Caius Gracchus became a tribune of the plebs, B.C. 123, and he put the law of his brother again in force, for it had virtually been suspended by the senate, B.C. 129, by their withdrawing the powers from the three commissioners, of whom Gracchus was one, and giving them to the consul, C. Sempronius Tuditanus, who, being engaged in the Illyrian war, could not attend to the business. Caius Gracchus proposed the establishment of various colonies under the provisions of the law. The check his power, the senate called in the aid of another tribune, M. Livius Drusus, who outbid Caius in his popular measures. The law of Gracchus proposed that those who received allotments of land should pay the state a small sum in respect of each. Drusus released them from this payment. Caius proposed to found two colonies: Drusus proposed to found twelve, each consisting of three thousand men. Caius Gracchus lost his life in a civil commotion B.C. 121. Shortly after his death, that clause of the Sempronian law which forbade the alienation of the allotments, was repealed; and they forthwith began to fall into the hands of the rich by purchase, or by alleged purchases as Appian obscurely states (B. C. I.27). A tribune, Spurius Borius (Borius is the name in the MSS. of Appian), carried a law to prevent future divisions of the public land, with a provision that the sums payable in respect of this land to the state, should be formed into a fund for the relief of the poor. But another tribune, Spurius Thorius, B.C. 111, repealed this law as to the tax from the public lands, and thus the plebs lost everything for the future, both lands and poors' money. [Lex Thoria.]
Other agrarian laws followed. In the sixth consulship out of Marius, B.C. 100, agrarian laws were carried by the tribune L. Appuleius Saturninus and his party, the object of which was chiefly to provide for the veteran soldiers of Marius. These measures were carried by violence, but they were subsequently declared null. The tribune, M. Livius Drusus the younger, B.C. 91, proposed the division of all the public land in Italy and the establishment of the colonies which had been projected: he was for giving away everything that the state had (Florus, III.16). This Drusus was also a tool of the senate, whose object was to humble the equestrian order by means of the plebs and the Italian Socii. But the Socii were also interested in opposing the measures of Drusus, as they possessed large parts of the public land in Italy. To gain their consent, Drusus promised to give them the full Roman citizenship. But he and the senate could not agree on all these measures, Drusus was murdered, and the Socii, seeing their hopes of the citizenship balked, broke out in open war (B.C. 90). The measures of Drusus were declared null, and there was no investigation as to his death. The Social or Marsic war, after threatening Rome with ruin, was ended by the Romans conceding what the allies demanded. [Julia.]
The land to which all the agrarian laws, prior to Thoria Lex, applied, was the public land in Italy, south of the Macra and the Rubico, the southern boundaries of Gallia Cisalpina on the west and east coasts respectively. The Thoria Lex applied to all the public land within these limits, except what had been disposed of by assignation prior to the year B.C. 133, in which Tiberius Gracchus was tribune, and except the Ager Campanus. It applied also to public land in the province of Africa, and in the territory of Corinth. [Thoria Lex.] The object of the agrarian law of P. Servilius Rullus, proposed in the consulship of Cicero B.C. 63, was to sell all the public land both in and out of Italy, and to buy lands in Italy on which the poor were to be settled. Ten commissioners, with extraordinary powers, were to carry the law into effect, and a host of surveyors, clerks, and other officers, were to find employment in this agrarian job. The law was defeated by Cicero, whose three extant orations against Rullus contain most instructive matter on the condition of the Roman state at that time. The tribune Flavius, B.C. 60, at the instigation of Cn. Pompeius, brought forward a measure for providing the soldiers of Pompeius with lands. Cicero was not altogether opposed to this measure, for he wished to please Pompeius. One clause of the law provided that lands should be bought for distribution with the money that should arise in the next five years from the new revenues that had been created by the Asiatic conquests of Pompeius. The law was dropped, but it was reproduced in a somewhat altered shape by C. Julius Caesar in his consulship, B.C. 59, and it included the Stellatis Ager p42 and the Campanus Ager, which all previous agrarian laws had left untouched. The fertile tract of Capua (Campanus Ager) was distributed among 20,000 persons, who had the qualification that the law required, of three or more children. After this distribution of the Campanian land, and the abolition of the port duties and tolls (portoria), Cicero observes (ad Att. II.16), "there was no revenue to be raised from Italy, except the five per cent. (vicesima)" from the sale and manumission of slaves.
The lands which the Roman people had acquired in the Italian peninsula by conquest were greatly reduced in amount by the laws of Gracchus and by sale. Confiscations in the civil wars, and conquests abroad, were, indeed, continually increasing the public lands; but these lands were allotted to the soldiers and the numerous colonists to whom the state was continually giving lands. The system of colonisation which prevailed during the republic, was continued under the emperors, and considerable tracts of Italian land were disposed of in this manner by Augustus and his successors. Vespasian assigned lands in Samnium to his soldiers, and grants of Italian lands are mentioned by subsequent emperors, though we may infer that at the close of the second century of our aera, there was little public land left in the peninsula. Vespasian sold part of the public lands called subseciva. Domitian gave the remainder of such lands all through Italy to the possessors (Aggenus). The conquests beyond the limits of Italy furnished the emperors with the means of rewarding the veterans by grants of land, and in this way the institutions of Rome were planted on a foreign soil. But, according to Gaius, property in the land was not acquired by such grant; the ownership was still in the state, and the provincial landholder had only the possessio. If this be true, as against the Roman people or the Caesar, his interest in the land was one that might be resumed at any time, according to the strict rules of law, though it is easily conceived that such foreign possessions would daily acquire strength, and could not safely be dealt with as possessions had been in Italy by the various agrarian laws which had convulsed the Roman state. This assertion of the right of the populus Romanus and of the emperors, might be no wrong "inflicted on provincial landowners by the Roman jurisprudence,"3 as Niebuhr affirms. The tax paid by the holders of ager privatus in the provinces was the only thing which distinguished the beneficial interest in such land from Italic land, and might be, in legal eft, a recognition of the ownership according to Roman law. And this was Savigny's earlier opinion with respect to the tax due to the Roman people as the sovereign or ultimate owner of the lands. His later opinion, as expressed in the Zeitschrift für Geschichtliche Rechtswissenschaft (vol. V p254), is, that under the Caesars a uniform system of direct taxation was established in the provinces, to which all provincial land was subject; but land in Italy was free from this tax, and a provincial town could only acquire the like freedom by receiving the privilege expressed by the term Jus Italicum. The complete solution of the question here under discussion could only be effected by ascertaining the origin and real nature of this provincial land-tax; and as it may be difficult, if not impossible, to ascertain such facts, we must endeavour to give a probable solution. Now it is consistent with Roman notions that all conquered land should be considered as the property of the Roman state; and it is certain that such land, though assigned to individuals, did not by that circumstance alone become invested with all the characters of that Roman land which was private property. It had not the privilege of the Jus Italicum, and consequently could not be the object of Quiritarian ownership, with its incidents of mancipatio, &c. All land in the provinces, including even that of the libertae civitates, and the ager publicus properly so called, could only become an object of Quiritarian ownership by having conferred upon it the privilege of Italic land, by which it was also released from the payment of the tax. It is clear that there might be and was ager privatus, or private property, in provincial land; but this land had not the privileges of Italic land, unless such private was expressly given to it, and accordingly it paid a tax. As the notions of landed property in all countries seem to suppose a complete ownership residing in some person, and as the provincial landowner, whose lands had not the privilege of the Jus Italicum, had not that kind of ownership which, according to the notions of Roman law, was complete ownership, it is difficult to conceived that the ultimate ownership of provincial lands (with the exception of those of the liberae civitates) could reside any where else than in the populus Romanus, and, after the establishment of the imperial power, in the populus Romanus or the Caesar. This question is, however, one of some difficulty, and well deserves further examination. It may be doubted, however, if Gaius means to say that there could be no Quiritarian ownership of private land in the provinces; at least this would not be the case in those districts to which the Jus Italicum was extended. The case of the Recentoric lands, which is quoted by Niebuhr (Cic. c. Rullum, I.4), may be explained. The land here spoken of was land in Sicily. One object of the measure of Rullus was to exact certain extraordinary payments (vectigal) from the public lands, that is, from the possessors of them; but he excepted the Recentoric lands from the operation of his measure. If this is private land, Cicero argues, the exception is unnecessary. The argument, of course, assumes that there was or might be private land in Sicily; that is, there was or might be land which would not be affected by this part of the measure of Rullus. Now the opposition of public and private land in this passage certainly proves, what can easily be proved without it, that individuals in the provinces owned land as individuals did in Italy; and such land might with propriety be called privatus, as contrasted with that called publicus in the provinces: in fact, it would not be easy to have found another name for it. But we know p43 that ager privatus in the provinces, unless it had received the Jus Italicum, was not the same thing as ager privatus in Italy, though both were private property. Such a passage then as that just referred to in Cicero, leads to no necessary conclusion that the ultimate ownership or dominion of this private land was not in the Roman people.
It only remains briefly to notice the condition of the public land with respect to the fructus, or vectigal, which belonged to the state. This, as already observed, was generally a tenth, and hence the ager publicus was sometimes called decumanus; it was also sometimes called ager vectigalis. The tithes were generally farmed by the publicani, who paid their rent mostly in money, but sometimes in grain. The letting was managed by the censors, and the lease was for five years. The form, however, of leasing the tenths was originally fructus locatio, which was the proper expression; but we find the phrase, agrum fruendum locare, also used in the same sense, an expression which might appear somewhat ambiguous; and even agrum locare, which might mean the leasing of the public lands, and not of the tenths due from the possessors of them. Strabo (p622), when speaking of the port duties of Cume in Aeolis, says they were sold, by which he no doubt means that they were farmed on certain terms. It is, however, made clear by Niebuhr, that in some instances at least the phrase agrum locare, does mean the leasing of the tenths; whether two was always the meaning of the phrase, it is not possible to affirm.
Though the term ager vectigalis originally expressed the public land, of which the tithe was leased, it afterwards came to signify lands which were leased by the state, or by different corporations. This latter description would comprehend even the ager publicus; but this kind of public property was gradually reduced to a small amount, and we find the term ager vectigalis, in the later period, applied to the lands of towns which were so leased that the lessee, or those who derived their tithe from him, could not be ejected so long as they paid the vectigal. This is the ager vectigalis of the Digest Dig. 6 tit. 3), on the model of which was formed the emphyteusis, or ager emphyteuticarius. [Emphyteusis.] The rights of the lessee of the ager vectigalis were different from those of a possessor of the old ager publicus, though the ager publicus was derived from, and was only a new form of the ager publicus. Though he had only a jus in re, and though he is distinguished from the owner (dominus), yet he was considered as having the possession of the land. He had, also, a right of action against the town, if he was ejected from his land, provided he had always paid his vectigal.
The nature of these agrarian laws, of which the first was the proposed law of Spurius Cassius, and the last, the law of C. Julius Caesar, B.C. 59, is easily understood. The plebs began by claiming a share in those conquered lands of which the patricians claimed the exclusive enjoyment, subject to a fixed payment to the state. It was one object of the Rogations of Licinius to check the power of the nobles, and to limit their wealth; and as they had at that time little landed property, this end would be accomplished by limiting their enjoyment of the public land. But a more important object was to provide for the poorer citizens. In a country where there is little trade, and no manufacturing industry, the land is the only source to which the poorer classes can look for subsistence. Accordingly, at Rome there was a continual demand for allotments, and these allotments were made from time to time. These allotments were just large enough to maintain a man and his family, and the encouragement of population was one of the objects contemplated by these grants of land (Liv. V.30). Rome required a constant supply of soldiers, and the system was well adapted to give the supply. But this system of small holdings did not produce all the results that were anticipated. Poverty and mismanagement often compelled the small owners to sell their lands to their richer neighbours, and one clause of the law of Tib. Gracchus forbade persons selling their allotments. This clause was afterwards repealed, not, as some would suppose, to favour the rich, but simply because the repeal of so absurd an enactment would be beneficial to all parties. In the later republic agrarian laws were considered as one means of draining the city of the scum of the population, which is only another proof of the impolicy of these measures, for the worthless populace of a large city will never make a good agricultural population (Cic. ad Att. I.19). They were also used as means of settling veteran soldiers, who must either be maintained as soldiers, or provided for in some way. Probably from about the close of the second Punic war, when the Romans had large standing armies, it became the practice to provide for those who had served their period by giving them a grant of land (Liv. XXXI.4); and this practice became common under the later republic and the empire. The Roman soldier always looked forward to a release from service after a certain time, but it was not possible to send him away empty-handed. At the present day none of the powers of Europe which maintain very large armies could safely disband them, for they could not provide for the soldiers, and the soldiers would certainly provide for themselves at the expense of others. It was perhaps not so much a system of policy with the Romans as a necessity, which led them from time to time to grant lands in small allotments to the various classes of citizens who have been enumerated.
The effects of this system must be considered from several points of view — as a means of silencing the clamours of the poor, and one of the modes of relieving their poverty, under which aspect they may be classed with the Leges Frumentariae; of diffusing Roman settlers over Italy, and thus extending the Roman power; as a means of providing for soldiers; and as one of the ways in which popular leaders sought to extend their influence. The effects on agriculture could hardly be beneficial, if we consider that the fact of the settlers often wanting capital is admitted by ancient authorities, that they were liable to be called from their lands for military service, and that persons to whom the land was given were often unacquainted with agriculture, and unaccustomed to field labour. The evil that appears in course of time in all states is the poverty of a large number of the people, for which different countries attempt to provide different remedies. The Roman system of giving land failed to remedy this evil; but it p44 was a system that developed itself of necessity in a state constituted like Rome.
Those who may choose to investigate the subject of the agrarian laws, will find the following references sufficient for the purpose:— Liv. I.46, 47; II.41, 42, 43, 44, 48, 52, 61, 63, III.1, 9, IV.12, 36, 43, 44, 47, 48, 49, 51, 52, 58, V.24, 30, VI.5, 6, 16, 21, 35, VII.16, X.13, 47, XXXIII.42, XXXIV.40; Dionys. II.15, VIII.70, &c., IX.51, &c., X.36; Plut. Camillus, c39, T. Gracchus, C. Gracchus; Appian, B. C. I.7 &c.; Cic. c. Rullum; ad Att. I.19, II.16; Dion Cass. XXXVIII.1, &c., XLV.9, &c., XLVII.14, XLVIII.2; Vell. Pat. II.2, 6, 44; Florus, III.13, &c.; Zeitschrift für Geschichtliche Rechtswissenschaft, Das Ackergesetz von Spurius Thorius, vol. X by Rudorff; Niebuhr, Roman History, vol. II p129, &c.; Savigny, Das Recht des Besitzes, 5th ed.; Classical Museum, Parts V, VI, VII, articles by the author of this article, and an article by Professor Puchta, of Berlin; Political Dictionary, art. Agrarian Law, by the author of this article.
1 It is obvious, on comparing two passages in Frontinus (De Re Agraria XI, XIII), that Niebuhr has mistaken the meaning of the writer, who clearly intends it to be inferred that the sacred land was not public land. Besides, if the meaning of Frontinus was what Niebuhr has supposed it to be, his authority is not equal to that of Gaius on a matter which specially belongs to the province of the jurist, and is foreign to that of the agrimensor. The passage of Livy does not prove Niebuhr's assertion. Livy merely states that the temple and grove of Sospita Juno should be common to the Lanuvini municipes and the Roman people; and in what other terms could he express the fact that the temple should be used by both people? That does not prove that a temple was considered the same kind of public property as a tract of unconsecrated land was. The form of dedition in Livy (Liv. I.38) may easily be explained.
2 It is stated in the American Almanac for 1839, that though the new territory of Iowa contains above 20,000 inhabitants, "none of the land has been purchased, the people being what are all termed squatters." The land alluded to is all public land. The squatter often makes considerable improvements on the land which he has occupied, and even sells his interest in it, before any purchase is made of the land. The privilege of pre-emption which is allowed of the squatter, or to the person who has purchased his interest, is the only security which either the squatter or the person who purchases from him, has for the improvements made on the land.
3 Niebuhr observes that Frontinus speaks of the "arva publica in the provinces, in contradistinction to the agri privati there;" but this he certainly does not. This contradistinction is made by his commentator Aggenus who, as he himself says, only conjectures the meaning of Frontinus; and, perhaps, he has not discovered it (Rei Agr. Script. pp38, 46, 47). Savigny's explanation of this passage is contained in the Zeitschrift für Gesch. Rechtsw. vol. XI p24.
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