Full Text Archive https://www.fulltextarchive.com Public Lands and Agrarian Laws of the Roman Republic by Andrew Stephenson Produced by Juliet Sutherland, Lesley Halamek and PG Distributed Proofreaders JOHNS HOPKINS UNIVERSITY STUDIES IN HISTORICAL AND POLITICAL SCIENCE HERBERT B. ADAMS, Editor * * * * * History is past Politics and Politics present History--_Freeman_ * * * * * NINTH SERIES VII-VIII PUBLIC LANDS AND AGRARIAN LAWS OF THE ROMAN REPUBLIC BY ANDREW STEPHENSON, PH.D. _Professor of History, Wesleyan University_ * * * * * BALTIMORE THE JOHNS HOPKINS PRESS JULY-AUGUST, 1891 Copyright, 1891, BY THE JOHNS HOPKINS PRESS. PREFACE. In the following pages it has been my object to trace the history of the domain lands of Rome from the earliest times to the establishment of the Empire. The plan of the work has been to sketch the origin and growth of the idea of private property in land, the expansion of the _ager publicus_ by the conquest of neighboring territories, and its absorption by means of sale, by gift to the people, and by the establishment of colonies, until wholly merged in private property. This necessarily involves a history of the agrarian laws, as land distributions were made and colonies established only in accordance with laws previously enacted. 1 / 60 Full Text Archive https://www.fulltextarchive.com My reason for undertaking such a work as the present is found in the fact that agrarian movements have borne more or less upon every point in Roman constitutional history, and a proper knowledge of the former is necessary to a just interpretation of the latter. This whole question presents numerous obscurities before which it has been necessary more than once to hesitate; it offers, both in its entirety and in detail, difficulties which I have at least earnestly endeavored to lessen. These obscurities and difficulties, arising in part from insufficiency of historical evidence and in part from the conflicting statements of the old historians, have been recognized by all writers and call forth on my part no claim for indulgence. This monograph is intended as a chapter merely of a history of the public lands and agrarian laws of Rome, written for the purpose of a future comparison with the more recent agrarian movements in England and America. ANDREW STEPHENSON. MlDDLETOWN, CONN. _May_ 8, 1891. TABLE OF CONTENTS. CHAPTER I. Sec. 1. LANDED PROPERTY " 2. QUIRITARIAN OWNERSHIP " 3. AGER PUBLICUS " 4. ROMAN COLONIES CHAPTER II. Sec. 5. LEX CASSIA " 6. AGRARIAN MOVEMENTS BETWEEN 486 AND 367 (a) Extension of Territory by conquest up to the year 367 B.C. (b) Colonies Founded between 454 and 367 Sec. 7. LEX LICINIA " 8. AGRARIAN MOVEMENTS BETWEEN 367 AND 133 (a) Extension of Territory by conquest between 367 and 133 (b) Colonies Founded between 367 and 133 Sec. 9. LATIFUNDIA " 10. INFLUENCE OF SLAVERY " 11. LEX SEMPRONIA TIBERIANA " 12. LEX SEMPRONIA GAIANA CHAPTER III. Sec.13. LEX THORIA " 14. AGRARIAN MOVEMENTS BETWEEN 111 AND 86 " 15. EFFECT OF THE SULLAN REVOLUTION " 16. AGRARIAN MOVEMENTS BETWEEN 86 AND 59 " 17. LEX JULIA AGRARIA " 18. DISTRIBUTION OF LAND AFTER THE CIVIL WAR BETWEEN CAESAR AND POMPEY " 2 / 60 Full Text Archive https://www.fulltextarchive.com 19. DISTRIBUTIONS FROM THE DEATH OF CAESAR TO THE TIME OF AUGUSTUS (a) Lex Agraria of Lucius Antonius (b) Lex de Colonis in Agros Deducendis (c) Second Triumvirate PUBLIC LANDS AND AGRARIAN LAWS OF THE ROMAN REPUBLIC. CHAPTER I. SEC. 1.--LANDED PROPERTY. The Romans were a people that originally gave their almost exclusive attention to agriculture and stock-raising. The surnames of the most illustrious families, as Piso (miller), Porcius (swine- raiser), Lactucinius (lettuce-raiser), Stolo (a shoot), etc., prove this. To say that a man was a good farmer was, at one time, to bestow upon him the highest praise.[1] This character, joined to the spirit of order and private avarice which in a marked degree distinguished the Romans, has contributed to the development among them of a civil law which is perhaps the most remarkable monument which antiquity has left us. This civil code has become the basis of the law of European peoples, and recommends the civilization of Rome to the veneration of mankind. The corner-stone of this legislation was the constitution of the law of property.[2] This property applies itself to everything in the law of Rome, to land, to persons and to obligations. _Urbs_, the name of the village, takes its origin, according to an etymology given by Varro,[3] from the furrow which the plow traced about the habitations of the earliest dwellers. But what is of more interest to us is that the legal signification of _Urbs_ and _Roma_ was different. The former was the village comprised within the sacred enclosure; the latter was the total agglomeration of habitations which composed the village, properly[4] so called, and the outskirts, or suburbs. The powers of certain magistrates ceased with the sacred limits of the _Urbs_, while the privileges accorded to a citizen of Rome extended to the village and the suburbs and finally embraced the entire Roman world. The most ancient documents which have reached us from the history of India and Egypt reveal that they had landed property fully established, while Roman annals reveal to us the very creation of this institution. Whatever modern criticism may deduce, Dionysius, Plutarch, Livy, and Cicero agree in representing the first king of Rome as merely establishing public property in Roman soil. This national property, the people possessed in common and not individually. Such appears to us to be the quiritarian property _par excellence_[5] and its primitive form was a variety of public community[6] of which individual property was but a later solemn emancipation. To this historic theory attaches the true notion of quiritarian land of which we will speak in greater detail hereafter. As regards the organization and constitution of individual and private property, the traditions themselves attribute this to the second king of Rome, the real founder of Roman society, who divided the territory among the citizens, marking off the limits of individual shares and placing them under the protection of religion. In this way a religious charter was granted to the institutions of private property. Thus a primitive division of territory appears to have been the basis of these varied traditions, but the precise form of this division eludes us. 3 / 60 Full Text Archive https://www.fulltextarchive.com The Roman territory was confined for many ages to a surface of very limited extent, which properly bore the name of _Ager Romanus_. This name with signification slightly changed appeared to be still in use in the time of the empire, and even at the present day a portion of the Roman territory which very nearly corresponds to the ancient territory of the imperial period is called _Agro Romano.[7]_ That which was properly called _Ager Romanus_ at first only occupied the surface of a slightly expanded arc whose chord was the river Tiber.[8] Primitive Rome did not extend beyond the Tiber into Etruria, and toward Latium her possessions did not extend beyond the limits of some five or six miles reckoning from the Palatine. Toward the east the towns of Antemnae, Fidenae, Caenina, Collatia and Gabia lay in the immediate neighborhood, thus limiting the extension of the city in that direction within a radius of five or six miles;[9] and northward the Anio[10] formed the limit. To the southwest as you approach Lavinium, the sixth milestone marked the boundary of Rome. Thus with the possible exception of a small strip of land extending upon either bank of the Tiber to its mouth, and embracing the old site[11] of Ostia, have we marked out all of ancient Rome. Strabo[12] says it could be gone round in a single day. And according to this same author it was within these limits that the annual auspices[13] could be taken. Both city and land increased with time. Property seemed to have been added and lost successively during the reign of the kings.[14] The last increase of the _Ager Romanus_ was due to the labors of Servius Tullius, and it was in the reign of this king that it reached its greatest limit. Dionysius[15] says: "As soon as he (Servius) was invested with the government, he divided the public lands among such of the Romans as having no lands of their own, cultivated those of others.... He added two hills to the city, that called the Viminal and the Esquiline hill, each of which forms a considerable city; these he divided among such Romans as had no houses, to the intent that they might build them.... This king was the last who enlarged the circumference of the city by the addition of these two hills to the other five, having first consulted the auspices as the law decided, and performed the other religious rites. Further than this the city has not since then been extended." Without doubt these possessions received great additions in later times,[16] but they were not incorporated in the _Ager Romanus_ as the preceding had been. The subjugated territories kept their ancient names while their lands were made the object of distributions to the people, of public sales to the citizens who also extended their possessions outside of Roman[17] territory, or else the new conquests were abandoned to municipia, given up to colonies, or became a part of that which was called _Ager Publicus_. In fine, it was a fundamental principle of the public law of Rome that the lands and the persons of the people conquered belonged to the conqueror, the Roman people, who either in person or by their delegates disposed of them as it seemed best. Among the ancients war always decided concerning both liberty and property. The result of all these facts was that the Roman territory was made the object of a division or a primitive distribution either among the three races of the first population, or a little later among the citizens or inhabitants. This very same principle has been frequently observed in recent times in regard to confiscated[18] territories and conquered peoples. Now what was the allotment of the first distribution of land? Upon this topic the ancient authorities are blind and confusing to such an extent as to be wholly inadequate for the solution of the difficulty. Among the more recent authorities, two opposing systems have been sustained, the one represented by Montesquieu, and the other by Niebuhr. (1) According to Montesquieu, the kings of Rome divided the land into perfectly equal lots for all 4 / 60 Full Text Archive https://www.fulltextarchive.com the citizens and the title of the law of the Twelve Tables relative to successions was for no other object than to establish this ancient equality of the division of lands.[19] (2) Niebuhr,[20] on the contrary, claimed that territorial property was primitively the attribute of the patriciate and everyone who was not a member of this noble race was incapable of possessing any part of the territory. From this theory the author deduced numerous consequences which are important both to law and history. Neither of these systems is free from errors. Montesquieu seems to have made no difference between patrician and plebeian in using the term _citizen_, while it is no longer disputed that the plebeian was not a burgess and consequently had no civic rights save those granted to him by the ruling class. His idea of goods must have, at least, become chimerical at a very early date, as this equality was so little suspected by the ancients that Plutarch,[21] after having spoken of the efforts of Lycurgus to overturn the inequality of wealth among the Spartans, accuses Numa of having neglected a necessity so important. It is moreover difficult to see how Montesquieu could think that testamentary disposition tended to maintain equality when the privilege was accorded to every citizen of disposing of his entire patrimony by will even to the prejudice of his children.[22] Again, the law of debts was hardly favorable[23] to equality. Niebuhr clearly[24] denied the existence of the plebs until Ancus incorporated the Latins and bestowed upon them peculiar privileges thus forming a new and third class distinct from both patricians and clients. Had Niebuhr succeeded in establishing this view, the right to landed property would appear to be wholly vested in the patricians, for a client, from the very nature of his position, could hold nothing independent of his master. But this theory has fallen to the ground and no writer of the present day pretends to uphold it. The plebeians existed from the very first and some of them held land in full private ownership very little different from the quiritarian ownership of the patricians. Cicero, who in his Republic[25] has occupied himself with the ancient constitution of Rome and has spoken in detail of the division of the lands, always speaks of the distribution among the citizens without regard to quality of patrician or plebeian, _divisit viritim civibus_. He has nowhere written that territorial riches were the exclusive appanage of the patriciate. It must be confessed, however, that it is doubtful whether he intended to embrace the plebeians in his _civibus_. For more than two centuries before the time of Cicero the plebeians had enjoyed the full rights of Roman citizenship, but for more than that length of time property had been concentrated in the hands of the aristocracy. This result was the consequence of the Roman constitution[26] and the establishment of a populous city in the midst of a narrow surrounding country. Roman policy had never been conducive to this concentration, and it will hereafter appear that the nobility who had the chief direction and administration of public affairs had little by little usurped the property which formed the domain of the state, _i.e. Ager Publicus_, and swallowed up the revenues due the treasury. [Footnote 1: Cato, _De Re Rustica_, I, lines 3-8. "Majores nostri ... virum bonum cum laudabant, ita laudabant, bonum agricolam bonumque colonum. Amplissime laudari existimabatur, qui ita laudabatur."] [Footnote 2: Muirhead, _Roman Law_, 36 _et seq_.] [Footnote 3: Varro, _De Lingua Latina_, V, 143.] [Footnote 4: Frag, to Digest, 287 and 147 of Title 16, Bk. 50 with notes of Schultung and Small.] [Footnote 5: Plutarch's _Romulus_, Sec. 19.] 5 / 60 Full Text Archive https://www.fulltextarchive.com [Footnote 6: Mommsen, _History of Rome_, l, 194.] [Footnote 7: Sismondi, _Etudes sur l'econ. polit._, 1, 2, Sec. 1.] [Footnote 8: Pseudo Fabius Pictor, Bk. I, p. 54; Plut., _Numa_, 16; Festus V deg. Pectustum Palati, p. 198 and 566, Lindemann.] [Footnote 9: Arnold, _Roman History_, I, ch. 3, par. 4.] [Footnote 10: Mommsen, I, 75.] [Footnote 11: Strabo, Bk. 5, 253.] [Footnote 12: Strabo, Bk. 5, ch. 3, Sec. 2.] [Footnote 13: Arnold, I, ch. 3.] [Footnote 14: Dionysius, II, 55; V, 33, 36; III, 49-50; Livy, I, 23-36.] [Footnote 15: Dionysius, IV, 13.] [Footnote 16: Varro, _De Lingua Latina_, V, 33.] [Footnote 17: Sigonius, _De Antiq. Juris Civ. Rom_., Bk. I, ch. 2.] [Footnote 18: Hume's _Hist, of Eng_., I, ch. 4: IV, ch. 61.] [Footnote 19: _Esprit des lois_, Liv. 27, c. 1.] [Footnote 20: _Roman Hist_., II, 164; III, 175 and 211.] [Footnote 21: Lycurgus and Numa, II; Cicero, _De Repub_., II, 9.] [Footnote 22: Muirhead, _Roman Law_, 46 and note--"uti legasset suae rei ita jus esto."] [Footnote 23: Muirhead, 92-96.] [Footnote 24: Niebuhr, I.] [Footnote 25: Momm., I, 126; Ihne, I; Nitzsch, _Geschichte der roemischen Republik_, 52; Lange, _Roemische Geschichte_, I, 18.] [Footnote 26: Dureau de la Malle, _Mem. sur les pop. de l'Italie, 500 et seq_.] SEC. 2.--QUIRITARIAN OWNERSHIP. Citizenship was the first requisite to the right of property in Roman territory. This rule, although invariable and inherent in the Roman state, bent under the influence of international politics or the philosophy of law, yet its severity affords us a notable characteristic of the law of ancient 6 / 60 Full Text Archive https://www.fulltextarchive.com Rome. Cicero and Gaius have preserved to us an important monument of this law in a fragment of the Twelve Tables which proclaims the solemn principle, _adversus hostem aeterna auctoritas esto.[1] Hostis_ in the old Latin language was synonymous with stranger, _perigrinus_[2] This Roman name was moreover applied to a person who had forfeited the protection of the law by reason of a criminal condemnation, and who was therefore designated _peregrinus_.[3] _Auctoritas_ also had in old Latin a different signification from what it has in later Latin. It expressed the idea of the right to claim and defend in equity. It was very nearly equivalent to the right of property.[4] The sense of the Roman law was, then, that the _peregrinus_ could not bar or proceed against a Roman, a disposition somewhat similar to the old law of England.[5] And as it was necessary to be a citizen in order to acquire by the civil and solemn means which dominated the law of property in Rome, it followed that the _peregrini_ were excluded from all right to property in land by these laws. This exclusive legislation for a long time governed Europe and did not disappear even from the Code Napoleon of 1819.[6] We have a forcible example of the severity of the old Roman law in this regard in the text of Gaius,--_Aut enim ex jure quiritium unusquisque dominus erat, aut non intelligebatur dominus._[7] _Dominium_ was therefore inseparable from _Jus Quiritium,_ the law of the Roman city, the _optimum jus civium Romanorum_. The _peregrinus_ was excluded from landed property both Roman and private; he could neither inherit nor transmit; claim nor defend in equity. Moreover the name _peregrinus_ was not confined to the stranger proper but was also bestowed upon subjects of Rome[8] who, being deprived of their property and also of political liberty by right of conquest, had not received the right of citizenship which was for a long time confined within very narrow limits. It would thus appear conclusive from the law quoted that the client and plebeian could not at first hold land _optimo ex jure quiritium_. Thus the tenure of the patricians was threefold: First, they had full property in the land; second, they had a seigniorial right, _jus in re_, in the land of their clients and the plebeians whose property belonged to the _populus, i.e._ the generality of the patricians; in the third place, in their own hands, they held lands which were portions of the domain and which were held by a very precarious tenure called _possessio_. According to Ihne, all lands in Rome were held by the above mentioned tenure until the enactment of the Icilian law _de Aventino publicando_ which involved a change of tenure by converting the former dependent and incumbered tenure of the plebeians into full property. [Footnote 1: De Officiis, I, 12; Gaius, Frag., 234: Digest, 50, 16.] [Footnote 2: Varro, De L.L.V. 14; Plautus, _Trinummus_, Act I, Scene 2, V. 75; Harper's _Latin Dictionary_; Cicero, _De Off_., I, 12: "Hostis enim apud majores nostros is dicibatur, quem nunc peregrinum dicimus."] [Footnote 3: Cic., _loc. cit._; Gaius, Frag., 234.] [Footnote 4: Forcellini, _Lexic._; Harper's _Latin Lex_.] 7 / 60 Full Text Archive https://www.fulltextarchive.com [Footnote 5: _i.e._ The descendents of a person escheated could bring no action for the recovery of the property.] [Footnote 6: Giraud, _Recherches sur le Droit de Propriete_, p. 210.] [Footnote 7: Gaius, Bk. II, 40.] [Footnote 8: Ulpian, Frag., Title XIX, 4; Giraud, 216.] SEC. 3.--AGER PUBLICUS. In her early history Rome was continually making fresh conquests, and in this way adding to her territory.[1] She steadfastly pursued a course of destruction to her neighbors in order that she might thereby grow rich and powerful. In this way large tracts of territory became Roman land, the property of the state or _Ager Publicus._[2] This public land extended in proportion to the success of the Roman arms, since the confiscation of the territory of the vanquished was, in the absence of more favorable terms, a part of the law of war. All conquered lands before being granted or sold to private individuals were _Ager Publicus_[3] a term which with few exceptions came to embrace the whole Roman world. This _Ager Publieus_ was farther increased by towns[4] voluntarily surrendering themselves to Rome without awaiting the iron hand of war. These were commonly mulcted of one-third of their land.[5] "The soil of the country is not the product of labor any more than is water or air. Individual citizens cannot therefore lay any claim to lawful property in land as to anything[6] produced by their own hands." The state in this case, as the representative of the rights and interests of society, decides how the land shall be divided among the members of the community, and the rules laid down by the state to regulate this matter are of the first and highest importance in determining the civil condition of the country and the prosperity of the people. Whenever but one class among the people is privileged to have property in land a most exclusive oligarchy is formed.[7] When the land is held in small portions by a great number and nobody is legally or practically excluded from acquiring land, there we find provided the elements of democracy. According to the strictest right of conquest in antiquity the defeated lost not only their personal freedom, their moveable and landed[8] property, but even life itself. All was at the mercy of the conquerors. In practice a modification of this right took place and in Rome extreme severity was applied only in extreme cases, generally as a punishment for treason.[9] This magnanimity was not rare and it even went so far as to restore the whole of the territory to the people subdued.[10] But let us not suppose that this humanity toward a conquered people sprang from any pity inspired by their forlorn condition. It was due merely to the interest of the conquerors themselves. The conquered lands must still be cultivated and the depleted population restored. For this reason the conquered had generally not only life and freedom left them but also the means of livelihood, _i.e._ some portion of their land. This portion they held subject to no restrictions or services save those levied upon quiritarian property. It was private property to the full legal extent of the expression, thus being in the unlimited disposition of the individual.[11] These people formed the nucleus of the plebeians, the freemen who were 8 / 60 Full Text Archive https://www.fulltextarchive.com members of the Roman state[12] without actually having any political rights. The _Ager Publicus_ was the property of the state and as such could be alienated only by the state.[13] This alienation could be accomplished in two ways: (a). By public sale; (b). By gratuitous distribution. (a). The public sale was merely an auction to the highest bidder and in the later days of the monarchy and early part of the republic, rich plebeians must have become possessed of large tracts of land in this way; the privilege of acquiring property in land having been extended to them some time before the Servian reform.[14] (b). The gratuitous distribution of land was accomplished by means of Agrarian Laws or royal grant and had for its object the establishment of colonies for purposes of defence, the rewarding of veterans or meritorious soldiers,[15] or in later times, the providing for impoverished plebeians. But even in the earliest times a portion of the domain lands was excluded from sale or private appropriation,[16] in order to serve as a resource for the needs of the state. This was the general usage of ancient republics and this maxim of reserved lands was recommended[17] by Aristotle as the first principle of political economy. Such reserved _ager publicus_ was leased either in periods of five years (quinquennial leaseholds) or perpetually, _i.e. _, by emphyteutic lease or copyhold. From these lands[18] the treasury received an income of from one-tenth to one-fifth of the annual crops. Besides these legal methods mentioned there was another very common one which was seemingly never established by any law and therefore existed merely by title of tolerance. I speak of the indefinite _possessio_ which was nothing but an occupation on the part of the patricians[19] of the land belonging to the state and was in nature quite similar to the so-called "squatting" commonly practiced in some of our western states and territories. The title to the enjoyment of the public lands was at first clearly vested in the patricians nor was this right extended to the plebeians until after they had been admitted to full citizenship. With regard to the state the _possessor_[20] was merely a tenant at will and could be removed whenever desired; but as regarded other persons he was like the owner of the soil and could alienate the land which he occupied either for a term of years, or forever, as if he were the real proprietor.[21] The public land thus occupied was looked to as a resource upon the admission of new citizens. They customarily received a small freehold according to the general notion of antiquity that a burgess must be a landowner. This land could only be found by a divison of that which belonged to the public, and a consequent ejectment of the tenants at will. In the Greek states every large accession to the number of citizens was followed by a call for a division of the public lands and, as this division involved the sacrifice of many existing interests, it was regarded with aversion by the old burgesses as an act of revolution. A great part of the wealth of the Romans consisted in domains of this kind, and the question will occur to the thoughtful mind how the government was able to keep the most distinguished part 9 / 60 Full Text Archive https://www.fulltextarchive.com of her citizens in a legal position so uncertain and alarming. English law is very different from the Roman in this respect and would decide in favor of the tenant and against the state. It is fairly possible that this uncertainty of tenure tended to render the government more stable and less liable to sudden revolutionary movements, thus having the same effect upon the Roman government which funded debts have upon the nations of to-day. [Footnote 1: Long, _Decline of the Roman Rep_., I, ch. 11.] [Footnote 2: Muirhead, _Roman Law_, 92.] [Footnote 3: Ortolan, _Histoire de la legislation Romaine_, p. 21.] [Footnote 4: Mommsen, I, 131; Arnold, I, 157.] [Footnote 5: Dionysius, IV, 11, Livy.] [Footnote 6: Ihne, I, 175.] [Footnote 7: Ihne, I, 175.] [Footnote 8: Livy, Bk. I, c. 38, with note by Drachenborch; Livy, Bk. VII, c. 31.] [Footnote 9: Siculus Flaccus, _De Conditione Agrorum_, 2, 3: "Ut vero Romani omnium gentium potiti sunt, agros alios ex hoste captos in victorem populum partiti sunt, alios verro agros vendiderunt, ut Sabinorum ager qui dicitur quaestorius."] [Footnote 10: Cicero, in Verrem, II, Bk. 3, Sec. 6.] [Footnote 11: Giraud, _Droit de propriete chez les romains_, 160.] [Footnote 12: Ihne, I, 175.] [Footnote 13: Muirhead, 92; Giraud, 165.] [Footnote 14: Higin., _De Limit. Const. apud Goes. Rei Agr. Script._, pp. 159-160.] [Footnote 15: Giraud, 164.] [Footnote 16: Dionysius, II, 7.] [Footnote 17: Aristotle, _Polit._, [Greek: Z. Keph. th. 7: Anagkaion toinun eis duo merae diaeraesthai taen choran kai ton men einai koinaen, taen de ton idioton.]] [Footnote 18: Giraud, 163.] [Footnote 19: Festus, p. 209, Lindemann; Cicero, ad Att. II, 15; Philipp. V, 7; De Leg. Agr. I, 2, III, 3; De Off. II, 22; Livy, II, 61, IV, 51, 53, VI, 4, 15; Suet. Julius Caesar, 38; Octavius, 13, 32; Caesar, De Bell. Civ., I, 17; Orosius, V, 18.] 10 / 60