In both of these cases the lands so assigned ceased to be Ager Publicus, and were made over in full property to the recipients, subject, in so far as colonies were concerned, to the conditions of the foundation charter (formula.)

Lastly, land of this description was sometimes left in the hands of the subjugated proprietors, who were, however, transformed from owners into mere tenants, who held the land on lease for a fixed period, and paid a fair rent to the Roman Exchequer for the farms which they occupied. 1 In this case the land remained the property of the state, and formed part of the Ager Publicus.

(2.) (3.) It is manifest that the arrangements with regard to the lands which had been laid waste by the operations of war must have been of a very different description. Here the farm houses and buildings of every description would be in ruins, the population killed or dispersed, the vines and fruit trees cut down or destroyed, and not only much labour, but large capital would be required to render them again productive. In like manner, the wide ranges of wild pasture land would be available to those only who were able to stock them with flocks and herds and to provide troops of slaves to attend and guard their property. Hence the state was in the habit, in the earlier ages at least, of inviting persons to enter upon the occupation of such districts upon very favourable terms, the payment, viz. of one-tenth of the produce of corn lands, and one-fifth of the produce of vines and fruit trees, when the land should have been again brought under cultivation, and of a moderate sum per head for sheep and cattle grazing on the public pastures. These lands fell, as a matter of course, in the earlier ages, into the hands of the Patricians exclusively, the only class possessed of capital, and afterwards the wealthy Plebeians also obtained a share. The persons who so occupied the lands were of course tenants of the state; but they did not hold leases for a fixed period, but were tenants at will, (precario,) who kept possession so long as the state did not desire to apply the land to any other purpose, but who might be lawfully ejected whenever the state thought fit. On the one hand no length of occupancy could bestow a right of property upon the occupier, for it was a fundamental principle of Roman law, that prescription could not be pleaded against the state; but, on the other hand, it does not appear that the state ever attempted to displace one occupier in order to make room for another occupier, but when it resumed possession it was for the purpose of applying the land to a different purpose. Hence, occupiers of the public lands, although liable to be dispossessed at any time by the state, might, and frequently did, retain possession of these lands for many generations; and the right of occupancy might not only be transferred to an heir, but might be sold for a price, the purchaser taking into account, of course, the precarious nature of the title.

A piece of land occupied in this manner was called Possessio, the occupier was called the Possessor, and he was said Possidere; the act of occupancy was Usus, the benefit derived by the state Fructus. Much of the obscurity connected with the Agrarian Laws has arisen from a misapprehension of the words possidere, possessor, possessio, which when used as technical legal terms, never denote an absolute right of property but merely occupancy by a tenant. 2

It will be seen, from what we have said above, that the tenants of the Ager Publicus were divided into two classes, which stood in a very different position.

1 See Appian B.C. I. 7. seqq. Some of the lands in Sicily were held according to this tenure, (Cic. in Verr. V. 6,) and it was very common in the provinces beyond the seas. 2 Fest. s. v. Possessin, p. 233. Cic de Off. II. 22. adv. Rull. III. 23. Liv. II. 61. IV. 36, 51. 53. VI. 5. 14. 37. Epit. LVIII Flor. III 13. Oros. V. 18. Mancipium is the old word for property, and is opposed to Usus, the mere right of occupancy, as in the Lucretian line

Vitaque mancipio nulli datur omnibus usu.

1. Those who had entered upon farms in full cultivation, who held leases for a limited period, and who paid a fair rent for the land. Such individuals might be either the original owners, or Roman citizens, or any persons whatsoever. They stood in the same relation to the state as an ordinary tenant to his landlord in modern times; and if, at the termination of the lease, either party was dissatisfied, the connection would terminate without the other having a right to complain.

2. Those who had entered upon the occupation of land lying waste and desolate in consequence of the ravages of war or from any other cause, who were bound, as the land was reclaimed, to pay to the state a certain moderate proportion of the produce, and who were tenants at will, upon an understanding, however, that they were not liable to be displaced in order to make room for another rent-paying tenant. The state reserved to itself the power of resuming possession when it thought fit, and unquestionably had a legal right at any time to eject the tenant; but it does not follow that this right could at all times be exercised with equity, especially after long occupation. Those who, in the first instance, had become the tenants of the state, had probably in most cases expended large sums in the erection of buildings, in the purchase of slaves and agricultural stocking, and in improvements of various descriptions. As the productiveness of the land was increased, the tax of one-tenth or one-fifth, as the case might be, would become less and less burdensome, and a very large reversion would accrue to the occupier, the result, in a great measure, of his own industry, skill, and capital. Here it is evident, that the state, after allowing such occupants to remain in occupation for a lengthened period, and encouraging them to invest larger and larger sums in improvements, had suddenly required them to remove, without, at the same time, offering adequate compensation, it would have been guilty of gross injustice and bad faith. But this was not all. Land held in this manner being a source of great profit, the right of occupancy was, as we have mentioned above, frequently sold and transferred from one occupier to another for a large sum, and the validity of such sales and conveyances was fully recognized by law. Hence, if the state, by allowing occupation to remain undisturbed for generations, had, as it were, permitted the precarious nature of the tenure to fall out of view, the purchaser who had paid a large sum for the right of occupancy would have naturally regarded the sudden resumption by the state as little better than an arbitrary confiscation of his fortune.

The original occupiers of the public pastures were in a more favourable position, because here the capital was not sunk in buildings or in the improvement of the soil, but was laid out upon cattle and slaves, which were at all times sure of finding purchasers, although loss might be sustained by forced sales. Those, however, who had purchased the right of pasturing their stock upon a particular district would, as a matter of course, have lost the purchase money if called upon by the state to surrender their right soon after they had acquired it.

Having thus explained the origin of the Ager Publicus and its occupation, we now proceed to consider the

Leges Agrariae. It is impossible to form a distinct idea of the Roman constitution unless we fully comprehend the nature and object of the laws so frequently mentioned by historians under this appellation-laws which were upon many occasions the source of furious and fatal discord. Their character was totally mistaken by scholars for many centuries after the revival of letters. It was universally believed that they were intended to prohibit Roman citizens from holding property in land above a certain amount, and for confiscating and dividin g

among the poorer members of the community the estates of private persons in so far as they exceeded the prescribed limits. Although the expediency of such a doctrine was never recognized in any well regulated state, ancient or modern, although it is at variance both with the principles and practice of the Roman constitution, and although the expressions of ancient writers, when correctly interpreted, give no support to the supposition that such ideas were ever mooted, yet the opinions first broached with regard to the Agrarian Laws were received and transmitted by successive generations of learned men almost without suspicion, and the innumerable embarrassments and contradictions which they involved were overlooked or passed by in silence. It was not until the latter end of the last century, (1795,) amid the excitement caused by the wild schemes of the French revolutionary leaders, that Heyne first distinctly pointed out the real nature of these enactments. His views were almost immediately embraced by Heeren, while the penetrating and vigorous Niebuhr quickly perceiving and appreciating their vast importance, brought all his vast learning and acuteness to bear upon the discussion, and succeeded so completely in developing and demonstrating the truth, that all are now astonished that the subject could have been so long and so grossly misunderstood.

The discovery, for such it must be regarded, thus happily made, may be enunciated in the following proposition

The LEGES AGRARIAE of the Romans were in no case intended to interfere with or affect private property in land, but related exclusively to the AGER PUBLICUS.

The Ager Publicus having been acquired and occupied as explained above, numerous abuses arose in process of time, especially among the tenants belonging to the second class. These being, as we have seen, in the earlier ages, exclusively Patricians, who, at the same time, monopolized the administration of public affairs, they were in the habit of defrauding the state, either by neglecting altogether to pay the stipulated proportion of the produce, or by paying less than was due, or, finally, by claiming what was in reality Ager Publicus as their own private property, it being easy, of course, in the absence of all strict superintendence and of scientific surveys, to shift the land-marks which separated public from private property. Meanwhile, the deficiencies in the public treasury were made up by heavier taxes; and the Plebeians complained that they were impoverished by new imposts, while the lands belonging to the community, which they had acquired by their blood, if fairly managed, would yield a sufficient return to meet all demands upon the Exchequer, or, if portioned out in allotments among themselves, afford them the means of supporting the increased burdens. These complaints, unquestionably founded in justice, were soon vehemently expressed, and were revived from time to time more or less loudly and enforced more or less earnestly, according to the state of public feeling and the energy of the popular champions. It is true, that the wealthier Plebeians soon became tenants of the Ager Publicus as well as the Patricians; but although this circumstance materially strengthened the hands of the occupiers, it did not improve the condition of the poor or make them less keenly alive to the injustice of the system against which they protested. Hence, from an early period in the commonwealth, Leges Agrariae were employed as most formidable and efficient weapons of offence by the Tribunes of the Plebs, and by the leaders of the democratic party.

1 Even Arnold, in his excellent articles which appeared in the Encyclopædia Metropolitana about the year 1827, proceeded upon the supposition that the laws of the Gracchi were intended to limit private property. Before publishing his history of Rome, however, which was printed about eleven years later, he had fully adopted the views of Heyne and Niebuhr.

According to our definition, the term Lex Agraria will include any enactment with regard to the disposal of the Ager Publicus; but it was usually employed to denote, (1.) Those measures which had for their object a reform in management of the public lands, by enforcing the regular payment of rent on the part of the occupiers, prohibiting them from occupying more than a certain extent, demanding the surrender of portions and dividing these in small allotments among the poorer citizens; and, (2.) Those which were intended to prevent the occupation of newly accquired territory, by insisting upon its immediate application to the establishment of colonies or its distribution to individuals (viritim.) It is manifest that Agrarian Laws, belonging to the first class, were those which would give rise to the most bitter contests, because they would more nearly affect existing interests.

The first Agrarian Law upon record was the Lex Cassia, proposed and passed by Sp. Cassius Viscellinus when Consul, B.C. 486, (tum primum Lex Agraria promulgata est, nunquam deinde usque ad hanc memoriam sine maximis motibus rerum agitata.) Cassius was a Patrician, and the measure must, in all probability, have originated in some intestine feud among the dominant class. His opponents proved too strong for him; for as soon as he laid down his office he was impeached of treason and put to death, while his law, regarding the provisions of which we have no precise information, seems not to have been enforced. We hear no more of Agrarian Laws, until the years B.C. 424,2 417, 416,3 when much agitation prevailed on the subject, but without any marked result. By far the most important measure of this class was the Lex Licinia, carried, after a protracted struggle, by C. Licinius Stolo, in B.C. 367, which served as the foundation of almost all later Agrarian Laws. The chief provisions

were

1. That no one should occupy more than five hundred jugers of the Ager Publicus (ne quis plus D. iugera agri possideret.)

2. That no one should have more than a hundred large and five hundred small cattle grazing upon the public pastures. ®

3. That each occupant of the Ager Publicus should employ a certain proportion of free labourers in cultivating it.

The enforcement of these regulations seems to have been intrusted to the Plebeian Aediles, whom we find, on several occasions, prosecuting and fining those who had transgressed; one of the first convictions under the new law being that of C. Licinius Stolo himself who had, by a legal fraud, obtained possession of one thousand jugers, and was, in consequence, sentenced to pay ten thousand asses. 9

In addition to these fundamental provisions, the law would doubtless contain regulations for ascertaining correctly the boundaries of the Ager Publicus and private property, for the regular payment of rent to the state on the part of the occupants, and for ascertaining the amount to be paid in each case. Niebuhr has endeavoured to reproduce the law in full; but in descending to details, we

1 Liv. II. 41. Dionys. VIII. 76

2 Liv. IV. 36. Agri publici dividendi coloniarumque deducendarum spes ostentatae.

3 Liv. IV. 47. 48. Discordia domi ex agrariis legibus fuit.

......

promulgassent ut ager ex hostibus captus viritim divideretur, &c.

4 Liv. VI. 42.

5 Liv. VI. 35.

6 Appian. B.C. I. 7. 8.

Appian. 1.c.

et quum (Tribuni) legem

8 e.g. Liv. X. 13. 23. 47. XXXIII, 42. XXXV. 10. Ovid. Fast. V. 289.

9 Liv. VIL 16.

have little to guide us beyond conjecture. (See Niebuhr's Roman History, Vol III. p. 11. Engl. trans.)

For upwards of two centuries after the passing of the Lex Licinia no attempt was made to interfere with the actual occupants of the Ager Publicus. Meanwhile immense additions had been made to the domains of the commonwealth during the contests which terminated in the subjugation of all Italy, and, during the second Punic war, by the confiscations of lands belonging to those states which had revolted to Hannibal. Large portions of the territory thus acquired had, it is true, been assigned to the faithful allies of Rome, had been disposed of in the foundation of colonies, and made over to the veterans of Scipio, but, at the same time, vast tracts had been retained as Ager Publicus; and no division among the poorer citizens individually (viritim) had taken place since the Lex Agraria passed, greatly to the disgust of the Senate, by C. Flaminius when Tribune of the Plebs, (B.C. 233,) in terms of which the lands conquered from the Senones, south of Ariminum, had been portioned out in small lots; and hence the district received the name of Ager Gallicus Romanus.' Moreover, although the Lex Licinia had never been repealed, the most important provisions had been violated. A large number of the wealthier families had gradually become occupiers, many of them, doubtless, by purchase and inheritance, of an extent far beyond five Lundred jugers, their flocks and herds grazing on the public pastures greatly exceeded the lawful number, and the free agricultural labourers had been almost entirely superseded by slaves, who, especially after the conquest of Macedonia, could be obtained at a very low price. On the other hand, the estates of small proprietors had been almost all swallowed up by the rich landholders, and the number of the poor was everywhere increasing. It was to arrest the downward progress of the humbler classes, and to remedy the abuses by which it had been caused that Tiberius Gracchus introduced his celebrated Lex Sempronia Agraria, the declared object of which was to revive, under a modified form, the ancient Lex Licinia. It proposed that no single individual should occupy more than five hundred jugers of the Ager Publicus, but that a father should be allowed a further amount of two hundred and fifty jugers for each of his sons, not exceeding two, so that no one should hold for himself and family more than one thousand jugers; that the surplus remaining over after this new adjustment had taken place should be divided among the poorer citizens, and that funds should be advanced to them out of the treasures bequeathed by Attalus sufficient to enable them to stock their allotments. It is evident, from what has been said above, (see p. 268,) that a sweeping change of this nature suddenly introduced, although containing clauses providing for compensation in certain cases, would entai heavy loss on a large class of persons, and would, in many instances, amount to a confiscation of property. Hence, the bill was met by the most violent opposition; but it was passed notwithstanding, and a standing commission appointed to carry it into effect. The difficulties and obstinate opposition encountered at every step rendered the progress of this body very slow; and the reader of history is well aware, that this and all the other enactments of Tiberius Gracchus and his brother were set aside or eluded after the death of the latter."

In the civil strife which preceded the final dissolution of the commonwealth,

1 Cic. Brut. 14. Acad. II. 5. De Inv II. 17. Val. Max. V. iv. 5. Varro R. R. I. 2. Polyb. [1. 21.

2 See on this point Plut. Tib. Gracch. 8.

3 Plut. Tib. Gracch. 3 seqq. Liv. Epit. LVIII. Velleius II. 2. Appian. B.C. I. 9. Cic. pro. Sext. 48. Victor de vir. ill. 64.