[Footnote 18: Professor Long thinks that the law of Tiberius soon became a dead letter. Lange (Rom. Alter., III, 26-29), inclines to this view. Duruy (II, 419-420), and most other modern writers agree with Mommsen.]

SEC. 12.--LEX SEMp.r.o.nIA GAIANA.

Gaius Gracchus really enacted no new agrarian law but merely re-established the power of the commission which had been appointed by his brother ten years before; which power they had lost by the law of Scipio.[1] Gaius' law was enacted merely to preserve the principle, and the distribution of land, if resumed at all, was on a very limited scale. This is made known from the fact that the burgess-roll showed precisely the same number capable of bearing arms in 124 and 114. As has already been stated, the domain land had been exhausted by the commission before losing its power, and, therefore, Gaius had none to distribute.[2] The land held by the Latini could only be taken into consideration with the difficult question of the Roman franchise. But when Gaius proposed the establishment of colonies in Italy, at Tarentum and Capua, whose territories had been hitherto reserved as a source of revenue to the treasury,[3] he went a step beyond his brother and made this also liable to be parcelled out; not, however, according to the method of Tiberius, who did not contemplate the establishment of new communities, but according to the colonial system.

There can be little doubt that Gaius designed to aid in permanently establishing[4] the revolution by means of these new colonies in the most fertile part of all Italy. His overthrow and death put a stop to the establishment of the contemplated colonies and left this territory still tributary to the treasury.

[Footnote 1: Scipio must have caused a plebiscitum to be enacted, for the repeal of this clause, as an existing law could not be repealed by a _senatus consultum._ See Ihne, IV, 414, note.]

[Footnote 2: Momm., III, 137.]

[Footnote 3: Cicero, _De Leg. Agr._, II, c. 29-32; Marquardt u. Momm., _Rom. Alter._, IV, 106: "ager publicus mit Ausnahme einiger dem Staate unenbehrlicher Domainen, wozu namentlich das Gebiet von Capua und das stellatische Feld bei Cales gehorte."]

[Footnote 4: Ihne, IV, 438-479. Plutarch, _Gaius Gracchus_, 13.]

CHAPTER III.

SEC. 13.--LEX THORIA.[1]

According to Appian, during the years which followed the death of Gaius Gracchus up to the tribunate of Saturninus, that is to say, between the years 120 and 100, three agrarian laws were proposed and adopted.

1. A law "That the holders of the land which was the matter in dispute might legally sell[2] it." Appian, who is the only authority for this period, does not give the date of the law nor the name of the tribune who proposed it, but Ihne[3] makes the date 118, and Mommsen a.s.signs the law to Marcus[4] Drusus. This law was a repeal of all the restrictions which the Gracchi had placed upon a.s.signments of public land. The object of this clause was to secure the success of their great reforms, and to establish a number of small proprietors who would cultivate their little farms, and breed citizens and soldiers. But forced cultivation is impossible, and sumptuary laws have never yet succeeded in increasing[5] population. Again it is inconsistent to give land to a man and deprive him of the power of sale, for this is an essential part of that domain which we call property in land. If a man wishes to sell, he will always have sufficient reasons for so doing, and a rich man can afford to pay[6] the highest price, freedom of exchange thus bringing ultimate good to both parties. It is easy to comprehend the consequences of this law. It was the commencement of a reaction entirely aristocratic in its nature.[7] It was skillfully conducted with the ordinary spirit of the Roman senate, the ruses, mental reservations, and dissimulations under guise of public interest. The aristocracy presented to the plebeian farmers, established by the lex Semp.r.o.nia, a means of promptly and easily satisfying their pa.s.sions.

They had never earned their little farms, nor did they appreciate the independence of the tiller of the soil. Unaccustomed to farm labor,[8] and the plodding unexciting life of the Roman _agricola_, they made haste to abandon a toilsome husbandry, the results of which seemed to them slow and uncertain, and with the pieces of silver which they received as the price of their lands, returned to Rome to swell the idle and vicious throng[9]

which enjoyed the sweet privilege of an existence sustained without labor.

Thus the n.o.bles re-entered promptly and cheaply into the possession of the lands of which Tiberius had but a short time before deprived them, and, by means of a little sacrifice, substantially and legally converted their possessions into real property, while the plebeians whom Tiberius had wished to elevate by means of forcing[10] upon them the necessity of labor, fell back into their accustomed poverty and brutality. But the object for which the n.o.bles were striving was not yet completely gained. The present victory was theirs; they now strove to guarantee the future, and so render impossible dangers similar to those already pa.s.sed through.

2. A second law was thus enacted: "Spurius Borius, a tribune, proposed a law to this effect; that there should be no more distribution of the public land, but it should be left to the possessors who should pay certain charges (_vectigalia_) for it to the state ([Greek: daemo]) and that the money arising from these payments should be distributed."[11]

It is easy to comprehend the effect of a law so conceived. On the one hand it guaranteed to the possessors full property in the public lands which they held. From this point of view it was aristocratic. But on the other hand it aimed to unite the interests of the common people with those of the aristocracy, by placing a tax of one tenth of the produce upon the holders of these lands,[12] thus reestablishing the law which had been annulled by Drusus. This took the place of distributions of land, which had now been made impossible[13] in Italy. In reality this law was disastrous to the plebeians as it established a tax[14] for their benefit, a _congiarium_, and placed a premium upon laziness.

The narration of Appian presents some grave difficulties. In all the ma.n.u.scripts of Appian the name of the tribune proposing the second law is Spurius Borius.[15] Cicero mentions a tribune by the name of Spurius[16]

Thorius and Schweighauser in his edition of Appian has changed 'Borius' to 'Thorius.' But this does not lessen the difficulty, as the law which Cicero attributes to Thorius is entirely different from the second law of Appian which, according to him was introduced by Spurius Borius. Cicero says that Spurius Thorius "freed the public lands from the vectigal."[17] Appian says that Spurius Borius guaranteed the _possessions_ in the public lands, levying a tax on them for the benefit of the people. It is a sheer waste of time to attempt to harmonize these two statements.[18] Granting that Spurius Borius and Spurius Thorius are one and the same person, the statements still remain diametrically opposed according to a simple and commonly accepted translation of Cicero's words: "Sp. Thorius satis valuit in populari genere dicendi, is qui agrum public.u.m vitiosa et inutile lege vectigali levavit." Mommsen makes Cicero agree with Appian by changing "vectigali" into the instrument, and rendering[l9] "relieved the public land from a vicious and useless law by imposing a vectigal." No other writer agrees with Mommsen in making such a translation.

3. The third law is mentioned by Appian alone who says: "Now when the law of Gracchus had once been evaded by these tricks, an excellent law and most useful to the state if it could have been executed, another tribune not long after [Greek: oupolu husteron] abolished even the vectigalia."[20]

This is evidently the same law which Cicero mentions as that of Spurius Thorius and as he also mentions him in another place (_De Or_., II, 70, 284), we may possibly accept him as the author.

There are still extant some fragments of a bronze tablet which contains upon its smooth surface the Lex Repetundarum and has cut upon its rough[21]

back an agrarian law. These fragments were discovered in the 16th century among the collections in the Museum of Cardinal[22] Bembo at Padua.

Sigonius attempted the reconstruction of this law and after him Haubold and Klentze, but Rudorff has completed the reconstruction as far as possible and made the law the subject of an interesting essay.[23] Mommsen has a commentary in the Corpus Inscriptionum Latinarum[24] upon this law. From all these sources the date of this law has been established almost beyond doubt as 111. Sigonius a.s.signed it to Spurius Thorius, and, as the name is immaterial and[25] his arguments moreover for this t.i.tle are not easily set aside, we can do no better than adopt it.

_Argument of the Lex Thoria._[26]

The law evidently consists of three parts, although the rubricae are absent.

I. De agro publico p. R. in Italia (1-43).

II. De agro publico p. R. in Africa (44--95).

III. De agro publico p. R. qui Corinthorum fuit (96-105).

I. On the Ager Publicus in Italy.

This part may be divided roughly into three sections: (1) Lines 1-24, defining _ager privatus_; (2) 24-32, defining _ager publicus_; (3) 33-43, on disputed cases.

It thus embraces the first forty-three lines of the law, and is concerned with the public land of Italy, from the Rubicon southwards. It commences by referring to the condition of this land in the year 133, when Tiberius Gracchus was tribune. The law does not affect to touch any thing which had been enacted concerning this land prior to 133. It either confirms or alters what had been done in 133, and since that time. All the public land which was exempted from the operation of the Semp.r.o.nian laws, _i.e._, _Ager Campa.n.u.s_ and _Ager Stellatis_, was also excluded from the operation of the _lex Thoria_.

(1) The first ten lines of the law relate to that part of the ager publicus which was occupied before the time of the Gracchi, if the amount of such land did not exceed the maximum fixed by the Semp.r.o.nian laws;

(2) Also, to the a.s.signments made by lot (_sort.i.to_) to Roman citizens by the commissioners since the enactment of the Semp.r.o.nian laws, if such a.s.signments were not made out of land which had been guaranteed to the old possessors;

(3) Also, to all lands taken from an old possessor, but on his complaint restored to him by the commissioners;

(4) Also, to all houses and lands, in Rome or in other parts of Italy, which the commissioners had granted without lot, so as such grants did not interfere with the guaranteed t.i.tle of older possessors;

(5) Also, to all the public land which Gaius Semp.r.o.nius, or the commissioners, in carrying out his law, had used in the establishment of colonies or given to settlers, whether Roman citizens, Latini, or Italian Socii, or which they had caused to be entered on the "_formae_" or "_tabulae_."

All the lands comprised in the above are declared in lines seven and eight to be private property, in these words: "Ager locus omnis quei supra scriptus est, extra eum agrum loc.u.m, quei ager locus ex lege plebeivescito, quod C. Semp.r.o.nius Ti. f. tr. pl. rogavit, exsceptum cavitumve est nei divideretur ... privatus esto."

Lines 8-10 declare that the censors shall, from time to time, enter this land upon their books like any other private property; and it is further declared that nothing shall be said or done in the senate to disturb the peaceful enjoyment of this land by those persons possessing it.

Of lines 11-13 (ch. II) nothing definite can be said, because of the few words which have been preserved.[27] Rudorff explains them as referring to land granted to _viasii vicani_ (dwellers in villages along the roads), by the Semp.r.o.nian commissioners; such lands to remain in their possession, but to be theoretically _ager publicus._

Lines 13-14 refer to lands occupied since 133 _agri colendi causa_. They allow to every Roman citizen the privilege of occupying, for the purpose of cultivation, thirty jugera of public land; they further declare that he who shall possess or have not more than thirty jugera of such land, shall possess and have it as private property,[28] with the provision that land so occupied shall be no part of the public land excepted from appropriation, and further, that such occupation shall not interfere with the guaranteed lands of a previous possessor.

Lines 14-15 relate to holders of pasture land (_ager compascuus_). This _ager compascuus_ was land which had been left undivided, and had not become the private property of any individual, but was the common property of the owners of the adjacent lands. These persons had the right to pasture stock upon this land by paying pasture dues (_scriptura_ or _vectigal_) to the state. The _Thoria lex_ freed these lands from the _vectigal_ or _scriptura_, and granted free pasturage to each man for ten head of large beasts--cattle, a.s.ses, and horses--and fifty head of smaller animals--sheep, goats, and swine. This common pasture must be carefully distinguished from the communal property which was granted to the settlers in a Colonia and called "_compascua publica_" with the additional t.i.tle[29]

of the colony, as "_Julienses_."

These rights of common resemble, in some respects, the English common of pasture as described by Bracton.[30] By English customary law, every freeholder holding land within a manor, had the right of common of pasturage on the lord's wastes as an incident to his land.

Lines 15-16. The possession of land, granted by the commissioners in a colony since 133, to be confirmed before the Ides of March next.

Lines 16-17. The same rule applied to lands granted otherwise by the same commissioners.