Public Lands and Agrarian Laws of the Roman Republic.

by Andrew Stephenson.

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.

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 const.i.tutional 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.

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 ill.u.s.trious 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 const.i.tution 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 doc.u.ments 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 inst.i.tution. 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 emanc.i.p.ation. 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 const.i.tution 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 inst.i.tutions 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.

The Roman territory was confined for many ages to a surface of very limited extent, which properly bore the name of _Ager Roma.n.u.s_. 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 Roma.n.u.s_ 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 Roma.n.u.s_ 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 circ.u.mference 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 Roma.n.u.s_ 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 the citizens and the t.i.tle 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 n.o.ble 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 cla.s.s. 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 cla.s.s 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 const.i.tution 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 const.i.tution[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 n.o.bility 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 c.u.m 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 t.i.tle 16, Bk. 50 with notes of Schultung and Small.]

[Footnote 5: Plutarch's _Romulus_, -- 19.]

[Footnote 6: Mommsen, _History of Rome_, l, 194.]

[Footnote 7: Sismondi, _Etudes sur l'econ. polit._, 1, 2, -- 1.]

[Footnote 8: Pseudo Fabius Pictor, Bk. I, p. 54; Plut., _Numa_, 16; Festus V 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, -- 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 lega.s.set suae rei ita jus esto."]

[Footnote 23: Muirhead, 92-96.]