CHAPTER XI.

THE PUBLIC LAND.

ROME was always making fresh acquisitions of territory in her early history. She ruined her neighbours without enriching herself. Large tracts of country became Roman land, the property of the Roman state, or Public Domain (ager publicus) as the Romans called it. The condition of this land, the use to which it was applied, and the disputes which it caused between the two orders at Rome, are among the most curious and perplexing questions in Roman history.

Our information on this matter is collected chiefly from Livy and Dionysius, who wrote at a time when the great interests involved in this question had nearly ceased to exist; and from later writers such as Plutarch and Appian who were very imperfectly acquainted with the matter. We learn something from the Gromatici Veteres and the comments of modern critics on them; but the extant writings of the Roman Agrimensores belong to the second century of our aera. Sextus Julius Frontinus, the oldest of them, wrote under Domitian and his successor.

That part of newly-acquired territory, which was neither sold nor given, remained public property, and it was occupied, according to the Roman term, by private persons, in whose hands it was a Possessio. Hyginus and Siculus Flaccus represent this occupation as being made without any order. Every Roman took what he could, and more than he could use profitably. If this was so, it is certain that there must have been a great quantity of vacant land and few people who had the means of cultivating or using it. We should be more

inclined to believe that this Public Land was occupied under some regulations, in order to prevent disputes; but if such regulations existed, we know nothing about them. There was no survey made of the Public Land which was from time to time acquired, but there were certainly general boundaries fixed for the purpose of determining what had become public property. The lands which were sold and given were of necessity surveyed and fixed by boundaries. We cannot tell how early the practice was established, but probably very early, of making plans of the land which was assigned to individuals by the authority of the state. These plans were made on bronze tablets. A plan was named 'forma,' or 'typus,' or simply 'aes,' which was merely the name of the material on which the plan was cut. In the imperial time the originals were deposited in the emperor's registry (sanctuarium, tabularium); and there were copies in the registry of the town or district within which the land lay. These were the only legal evidence of the original boundaries. We might assume that this practice of making plans existed under the republic, even if we had no direct evidence of it; but they are mentioned in a passage of Licinianus which refers to a survey of lands made about B.C. 160, and there is no reason for supposing that this was a new practice.

As to those lands which were occupied in the Roman sense, there were, says Siculus Flaccus, no plans made, for these lands were neither given nor sold by the state. A man might make a plan of his own possessions for his own use, but 'such plans,' adds Siculus Flaccus, ' were neither binding on a man's neighbours nor on himself, since it was a voluntary matter.' It is true that a man could not make his own plan of the land, which he occupied, evidence against his neighbour; but his plan might be some evidence against himself, for it might show how much land, at the time when he made the plan, he considered to be in his occupation. Every Possessor of course made some kind of boundary to his possessions, for though the land was not his, he used it as his own, and every Possessor must in case of dispute with a neighbour be able to show what he claimed. The Possessor, not having the ownership of the land, could not protect his Possession against a

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neighbour, nor if he lost the Possession, could he recover it, by the same legal process which the owner of land could employ. The land of the Possessor belonged to the state against which he had no title. His right to the enjoyment against any other man was founded on the simple fact of possession, if his acquisition of the Possession was free from the three fraudulent modes of acquiring possession, which the Roman lawyers expressed by the terms Vis, Clam et Precario. The protection of the Possessor in his Possession was effected by the Interdicta of the Praetor, which were sufficient for the purpose. This Public Land was dealt with by the Possessors as if it were private property. It was the subject of sale, exchange, succession and of mortgage. That which originally might have been worth little was improved by the outlay of capital, by building on it, and in other ways.

There is no direct evidence that any payments to the state in respect of this Public Land were originally made by the Possessors. It is certain however that at some early time such payments were made or at least were due to the state; but the great difficulty in all this matter of the Public Land is to fix the time when any particular rules prevailed. Both antient and modern writers often show little care in this respect; and what may have been true at one time is often assumed to have been always true. If the occupation of the Public Land began in such a disorderly way; if the parts occupied by the several Possessors were not surveyed by public authority, and we are told that they were not, it is impossible that any payments could have been originally made to the state in respect of such possessions, for each man alone knew what he occupied, and sometimes he would hardly know even that. It is true, as we shall see, that the payments are said to have been a certain part of the produce, and as the produce of land must be collected and brought together in some place on the land, it would have been possible to collect the part due to the state. This was done in later times by the Publicani or farmers of the revenue, but in the earliest times we read of no Publicani.

It remains to consider who were the Possessors of the Roman Public Land.

It is affirmed by some modern writers that the settlers in the old coloniae before the reform of king Servius Tullius were only Patricians, which is the same as saying that they were only Roman citizens; and one cannot conceive that they were any thing else. Further, it is said that after the reform of Servius these settlers were the citizens included in the Classes, the men who were liable to military service and had sufficient means to establish themselves on their allotments. But all such affirmations as to the early condition of the Roman state rest on little or no evidence. Whatever was the political status of these early Roman colonists, they must have been very poor men, if they had only two jugera of land to live on or even three times that

amount.

It seems likely that for some time after two orders existed in the state in consequence of the legal constitution of the Plebs, the Public Land was occupied only by Patricians. Livy sometimes writes as if that was his opinion; but I need hardly observe that it may be Livy's opinion without being a fact. Such Public Land as lay far from Rome could only be occupied by rich Romans, and with the help of their clients or slaves; and probably this land was chiefly used for the feeding of sheep and cattle, a kind of industry which can be managed easier and cheaper than any other where there are extensive waste lands. No poor citizen could find the necessary capital for cultivating or stocking a large piece of land; and poor cultivators could not venture into remote parts to occupy a few acres by the side of a wealthy man. Even in historical times we read of encroachments of the rich on their poorer neighbours as common events in Italy; and bloody frays sometimes took place between neighbours. It is certain also that the occupation of Public Land was the beginning of the great slave agriculture in Italy, and the foundation of enormous fortunes. Thus this wretched system had for its results the extension of slave and the diminution of free labour, the growth of large estates, and the destruction of small, the conversion of cultivated land into pasture, and a consequent decrease in the population of Italy.

As to the question of title to the enjoyment of the Public

Land, it may be that the Patricians by usage claimed the exclusive right to the occupation of the undivided Public Land. Livy sometimes speaks of it as 'wrongfully possessed' by the Patricians, but it is impossible to know exactly in what sense he used these words. The two jugera or more, as the case might be, of land assigned or given in ownership to Plebeians, may have been the portion of those who were under the power of their political superiors. But the settlement of this question is not material for my purpose, nor can it be settled. The greater part of the Public Land was certainly in the hands of the rich long before the time of Gracchus. These rich men might be and undoubtedly often were Plebeians, who had gained wealth by trade. If the Patricians alone had originally the title to occupy Public Land and use it as their own, the land might still pass by sale or mortgage into the hands of rich Plebeians. It was natural that the poorer citizens should continually call for fresh assignments of lands, and when there was none to give, they would turn their eyes to the lands which belonged to the state, and were in the hands of Possessors whose only title to the enjoyment of them was a tacit permission which was always revocable. Thus the Possessors were driven to all kinds of devices to stop the noisy demands of the poor. We read in Livy of an instance in which it was proposed to settle a Colonia at Antium for no other reason than to silence the clamour against the Possessors of the Public Land.

The first Agraria Lex, the first measure by which it was proposed to disturb the Possessors, was the Lex of B.C. 486, proposed by the consul Sp. Cassius, a kind of measure, says Livy, which from that time to the time when he was writing under Augustus had never been proposed without exciting the greatest disturbances. A treaty had been made by the Romans with the Hernici, by which the Hernici surrendered two-thirds of their lands. Cassius proposed to divide half of this land among Latini, and the other half among Roman plebeians. He also proposed to add to the land to be divided some Public Land which, as he alleged, was in the possession of private persons. But the Possessors were too strong for Cassius. He was charged with designs hostile to the state,