1911 Encyclopædia Britannica/Agrarian Laws
AGRARIAN LAWS (Lat. ager, land). Under this heading we deal with the disposal of the public land (ager publicus) of ancient Rome. It was a principle of the Republican constitution that no gratuitous disposition of state property should be made without the consent of the people. Hence many of the ordinances affecting the public land were laws (leges) in the strictest sense of that word. It is, however, both justifiable and convenient to consider in this article all the regulations that were made for the administration of the public land by the executive authorities, as well as by the people during the Republic, and by the commands of the emperor, which had the force of law during the Principate.
The existence of public land, first in Italy, and then in the Mediterranean world, was the outcome of two ideas which are very familiar to students of antiquity. This land was the prize of conquest and was one of the means of defraying the current expenses of state-administration. For the latter purpose land is often leased or allowed to be occupied on the condition of the payment of dues. But it may be made to fulfil another purpose as well—this purpose being the satisfaction of the individual needs of poorer citizens. To meet this object the land is usually assigned, and on assignment generally ceases to be the property of the state. But it often happens that the state is not wholly disinterested in undertaking such acts of assignment. It gains security and territorial control by planting garrisons in conquered country, and it relieves itself of the necessity of providing for its poorer classes whether by state-aid or by a hazardous tampering with the rights of private property. In this use to which public land could be turned we see at once the connexion between agrarian legislation and colonization—a connexion which was so close that when a Roman spoke of an agrarian law he seems generally to have understood by it a law establishing a colony—and also the two aspects of colonization, the military and the social. These two objects were indissolubly connected throughout the whole of the earlier period of Roman agrarian assignation. They only became separated in the period subsequent to the Gracchi in so far as social motives still continued to be operative when military precautions had ceased to be necessary. It is probable that one of the chief motives which prompted infant Rome to war with her neighbours was the land-hunger of her citizens. This hunger she satisfied after conquest by annexing a portion of the enemy's territory. The amount thus confiscated varied from time to time. It was usually a third, but sometimes a half or even two-thirds, and after the fall of Capua in the Second Punic War the whole territory of the state was annexed. It is possible that by the close of the 2nd century B.C. one-half of the land of Italy belonged to Rome whether in private ownership or as the property of the state. Annexation was carried on in the provinces on a relatively smaller scale: but Rome retained as domain-land much of the territory of communities which had been destroyed, such as Carthage and Corinth, and the estates of former kings, such as the lands of the Attalids in the Chersonese. Other domains in Sicily and Greece, such as the territory of Leontini in the former, or Oropus in the latter case, are also found. This peculiar property of the Roman state in the provinces must be carefully distinguished from the general overlordship which Rome was supposed to hold over all provincial soil, expressed in the statement that provincials had only possession or usufruct of their land (Gaius ii. 7; Gromatici, p. 36, Lachmann). This overlordship was probably merely a legal fiction by which the juristic mind assigned a reason for the fact that the provincials paid a land tax from which Italians were exempt.
Such portions of the territories of conquered cities as were not claimed by Rome were as a matter of course left in the undisturbed possession of these cities. If the city was a federate state (civitas foederata), his possession was guaranteed by a treaty; if it was a free city, the guarantee was made by charter; if it was neither federate nor free, the abandonment of the territory by Rome must have been taken as a sufficient guarantee of the city's right to possess, although statements relative to the surrender may have been contained in the charter of the province (lex provinciae) to which the city belonged. But, whether the states were federate, free or stipendiary, there was only one case in which it was important to specify precisely that land had been restored (redditus) to its former occupants. This was the case where Rome had marked out a territory for assignment to her own citizens, but where in or near the limits of the assignment some of the land had been left in the hands or its former proprietors. Such land was noted in the state registers as redditus veteri possessori. Sometimes it was found that such an ancient possessor owned pieces of land separated from one another. In such cases an exchange might be effected between him and some other possessor, so that his possessions might be continuous. The fact of such an exchange was symbolized in the registers by the entry of land redditus et commutatus pro suo.
When the claims of earlier owners had been satisfied, the state proceeded to deal with such land as it retained. It dealt with it in two ways. It either alienated it, whether in exchange for a price or gratuitously; or it kept it as a source of revenue, whether on a system of lease or on some system of remunerative occupation. We may first consider the cases in which the state decided to alienate. The land might be sold for the benefit of the treasury. Typical instances of this treatment are furnished by the sale of some Campanian land during the Second Punic War (Livy xxviii. 46, xxxii. 7). The censors may have directed the sale, but it was executed by the quaestors as the regular officials of the treasury. Hence such land was described as ager quaestorius. The land was sold in definitely marked out plots, and we must suppose that, as a rule, when this sale had been effected, the lots fell under the absolute ownership of their purchasers. Yet there was some period of Roman history when this ownership was (at least in certain cases) conditioned. The Roman writers on agriculture speak of conditions and their neglect (Gromatici, p. 115). The conditions were probably those of military service or frontier defence. The epoch of history at which this conditioned ownership was recognized cannot be determined. It is a form of tenure that would be equally appropriate to the needs of the earliest period of Roman history and to those of imperial times.
The second mode of alienation was that by assignation. Lands thus assigned were known as agri dati assignati. The gift on the part of the state was gratuitous, and ownership passed wholly to the assignee. The land so given was definitely surveyed, marked out and registered. Such an assignment might take one of two possible forms. It might be the means of establishing a new "plantation" (colonia), with some independent political organization of its own, however slight—a settlement, therefore, which could be thought of as an entity separate from the city of Rome and from any other municipality. Or it might be the means of providing allotments for individuals who remained domiciled at Rome or continued to be members of some already existing municipality. It has been frequently held in modern times that this latter method of assignment is the one which our ancient authorities describe as assignment to individuals (viritim), and that the antithesis lies between the "colonial" and the "viritane" method of distribution. It is true that the passages which speak of the latter mode of assignation need not, and perhaps cannot, be interpreted as presenting the antithesis (Varro, de Re Rustica, i. 2. 7, i. 10. 2; Livy iv. 48, v. 24; Festus, p. 373; Gromatici, pp. 154, 160); yet it is not improbable that the antithesis is latent in this specific use of the term. It seems clear that the idea of assignation to, and, therefore, of ownership by, individuals must originally have been developed in contrast to the idea of ownership by some larger group (see Roman Law). When the stage of individual ownership was reached, all assignation was "viritane," but only some assignation was "colonial." "Viritane" was, therefore, the wider term which would cover, and may sometimes have been used specially to denote, the system of non-colonial assignment. The amount granted to individuals in assignments of both types varied from time to time. It was reckoned in terms of the jugerum, which was approximately ⅝ of an English acre. The earliest and smallest assignment was 2 jugera—an amount so small that it seems to presuppose on the part of the recipient some share in common or gentile property or some additional private property of his own. Other quotas were 3, 3 7/12, 7, 10 + 14 jugera. The last was the maximum amount granted before the time of Ti. Gracchus (133 B.C.), and it was held by representatives of the old school that 7 jugera were as much as any frugal Roman should want (Pliny, Historia Naturalis, xviii. 18). The division was carried out by commissions of 3, 5 or 10 men appointed by the people (Cicero, de Lege Agraria ii. 7. 17). The land which the state retained as ager publicus was always placed in the hands of individuals, who occupied it in some manner remunerative to the state. These individuals (possessores) were never regarded as owners of the land thus occupied. It remained the property of the state, was held without a contract (precario) and could be resumed by the state at will. But though the possessors had no claim against the state, their ownership could be defended against all other individual claimants; and it seems probable that from an early date the praetor's possessory interdict was used to protect all occupiers, provided their tenure had been acquired neither by force (vi) nor by seizure of land in its occupiers, absence (clam), nor by mere permission of the previous holder to occupy (precario alter ab altero). Moreover, Appian says that possessors of this type could transfer their land by inheritance, and that the land was accepted as security by creditors. This kind of occupation, therefore, though clearly distinguished from ownership (dominium), was yet regarded as a perfectly secure form of tenure. All occupiers of public land paid dues to the state through a state contractor (publicanus). These dues varied in amount, and in the method of their collection. We learn from Appian that the ordinary dues paid by occupiers of arable land in Italy were 1/10 of seed crops and 1/5 of plant produce. Owners who turned cattle or sheep on pasture land belonging to the state also paid fixed dues to the treasury. The occupiers of the Roman public land in Campania paid a large rent (Cic. de leg. Agr. i. 7. 21). Appian's account of the public land (Bell. Civ. i. 7) would lead us to suppose that the amount of tax paid by the occupier, and the method adopted by the state for the collection of the revenues, depended upon the nature of the land at the time when it first passed to a possessor. He says that some of the public land which was in a good state of cultivation was let on lease; but that with regard to the poor or devastated land proclamation was made that anyone might squat on it and till it in return for the small payment in kind mentioned above. It has been questioned whether the land described by Appian and by Cicero as let on lease, of which the Campanian land and some lands in Sicily are typical, represents a legally distinct class. It seems probable that the distinction is one of practice rather than of law, and that the difference lay not in the relation between the state and the possessor (as would be the case if the leased land were really let to individuals by the censor, while the occupied land was held by mere permission of the state without any contract) but in the details of the contract between the censor and the publicanus with regard to the collection of the dues. The conditions of the tenure of the Roman public land in Africa are known to us from the Lex Agraria of 111 B.C. (Bruns, Fontes, i. 3. 11, vv. 85 foll.). Here the publicanus is the middleman between the state and the possessor, and purchases from the censor the right of collecting dues. The law places no restriction on bargaining between the censor and the publicanus, but enacts that no possessor or pastor shall ever be required by the publicanus to pay more than the amount prescribed by the censors of 115 B.C. These conditions may be regarded as typical for the occupation of public lands. And when Cicero speaks of public land as let on lease (locatus) by the censor, he no doubt refers to the farming of the taxes to a publicanus for a fixed period, and not to the letting of the land. This seems clear from a passage (in Verr. iii. 6. 12) where he speaks of land in Sicily which had been restored by Rome to former owners as being leased. The land itself could not be leased by Rome if it belonged not to Rome but to the Sicilian inhabitants; but the collection of the revenues due to Rome could be so leased to Publicani (q.v.). And the same explanation would apply to Cicero's statements that the Campanian land was let on lease by the censors (cf. Festus, s.v. venditiones). The view that there was a distinct class of the public land which was let out for a fixed term of years to tenants on a definite lease, unlike the ordinary public land which was always held in occupation merely at will (precario), has been maintained by W. A. Becker, and seems to be supported, with the help of conjecture, by a few passages in Cicero and by Hyginus (Gromatici, p. 116). But the passage of Hyginus is barely intelligible even on this supposition; and Cicero's repeated statement that the Campanian land was expressly exempted from the legislation of the Gracchi (cf. Lex Agraria, Bruns, loc. cit. v. 6) shows that there was not sufficient distinction between the Campanian tenure and that of other public land in Italy to make this definite exception by name superfluous. The Sempronian law could obviously not touch land which the state had leased to occupiers on the basis of a definite contract. Moreover, we have absolutely no evidence for such a contract, even in Cicero's speeches against Rullus, when he might be expected to mention it as an objection to Rullus's bill. That there were some distinctive characteristics about the tenure of certain lands, of which the Campanian land is typical, seems proved by the repeated association of these lands with certain special lands in the provinces, especially at Leontini in Sicily, and by some passages in the Gromatici where agri vectigales are spoken of as a distinct class. But what these characteristics were cannot be clearly determined. It seems certain that in every case the possessor occupied precario, and that only in the bargain between the censor and the middleman was there room for contract. Thus the state was justified in the claim to resume public land which it made in many of the Agrarian laws.
The earliest agrarian measures of which we have any record are the distributions of land conquered in war to poor citizens, which later authorities attribute to Numa and Servius Tullius. Such assignments, however, are not the result of legislative acts, but of a voluntary surrender on the king's part of his own portion of the spoils. It is probable that the agrarian law which resulted from the proposals of Spurius Cassius (consul 486 B.C.) was the first attempt made by the Roman people to exercise its control over the occupation of state territory. According to the traditional account, Cassius proposed that such portion of lands lately conquered from the Hernici as fell to the Roman state should be divided in equal shares between the Roman plebs and the Latins; and further that poor citizens should receive allotments of land previously conquered, and occupied without any legal right by the Patricians. The inclusion of the Latins in the distribution was afterwards dropped; but the law in its final form certainly asserted the right of the Plebeians to take their share in the public land. The accounts given of it by Livy and Dionysius are no doubt coloured by their knowledge of later agrarian legislation, and it seems hardly likely that the proposal to resume and redistribute public land already occupied was made at this early stage; but it probably challenged the exclusive claim of Patricians to occupy. We hear of another agrarian law proposed by the tribune Lucius Icilius in 456 B.C. (Lex Icilia de Aventino publicando) which regulated in some way the tenure of public land on the Aventine. In 376 B.C. the tribunes Licinius and Sextius introduced into their laws, for the promotion of the privileges of the plebs, a clause enacting that no more than 500 jugera of land should be occupied by a single cultivator. It seems almost certain from Livy's account that this measure referred only to the occupation of ager publicus, though some modern authorities have upheld the view that it dealt with land held on any kind of tenure, others again that it dealt only with private property in land. According to Appian, the law also enacted that only 100 cattle and 500 sheep might be turned by one owner on the public pastures. But it failed of its object because it did not provide any adequate machinery for the resumption by the state of land held in excess of the prescribed amount, and was therefore easily evaded. The next agrarian law we hear of was a more special measure dealing with lands conquered from the Senones and Picentines. In 232 B.C. C. Flaminius, then tribune of the plebs, proposed to resume these lands for the state, although they were already occupied by large landholders, and to distribute them in allotments to poor citizens. The measure met with much opposition from the richer classes, and did not gain the sanction of the senate; but C. Flaminius ignored constitutional usage and brought it direct before the council of the plebs, by which it was made law. In 133 B.C. the tribune Tiberius Gracchus (q.v.) re-enacted the earlier measure of Licinius and Sextius, with the additional provisions that each owner might occupy 250 jugera for each son, in addition to the original 500, and that a commission of three (iii. viri agris dandis adsignandis) should be appointed to carry out the terms of the law. He also enacted that the land occupied in excess of the prescribed amount, and on that account resumed for the state by the land commission, should be distributed in inalienable lots to poor citizens. Subsequent modifications of those provisions which dealt with the powers of the land commission led to a re-enactment of the whole by C. Gracchus, the brother of Tiberius, tribune in 123 B.C. But within 15 years from the tribunate of C. Gracchus the whole of his law had been rendered null by three further enactments. The first of these permitted the sale of land allotted under the law, which thus tended to return into the hands of its former occupiers as private property, which the state had no longer any right to resume. The second abolished the commission appointed to carry out the terms of the law, thus putting a stop to further resumption and distribution, and also transformed existing occupiers into owners of the land they occupied, paying only a small due to the treasury. The third (probably the surviving Lex Agraria, Bruns, loc. cit.) abolished the payment. This law belongs to the year 111 B.C. The dates of the two former laws are uncertain, but it is probable that the first was passed in 121, the second in 119 or 118. From this time forward a change comes over land legislation. The ordinary public land in Italy, in the hands of occupiers, which had given rise to all the agrarian legislation between 376 and 111, had practically ceased to exist. The Campanian land still remained, but the same reasons which led to its exemption from the Gracchan legislation seem to have continued to protect its holders until 63 B.C. In the meantime several agrarian laws were passed which provided for the distribution of land placed in some other way at the disposal of the state. In 100 B.C. Appuleius Saturninus (q.v.), tribune of the plebs, proposed the allotment of lands recently taken from the Cimbri in Gaul. This law was passed, but eventually declared null by the senate, with the rest of Saturninus's laws. A more dangerous precedent was set by Sulla in his dictatorship (82-81 B.C.) He was the first to confiscate the lands of his political foes, and of communities which had resisted him, and treating them as ager publicus, assign them to his veterans as a prize. This example was followed by Octavian (Augustus) and Antony (M. Antonius) after their proscriptions in 43 B.C. A third method of providing land for distribution was that adopted by Servilius Rullus (q.v.) in 63 B.C. His bill enacted that land should be purchased in Italy with money gained by the sale of Roman territories abroad, and allotted to citizens. A commission of ten (x. viri agris dandis adsignandis), annually elected by 9 out of the 35 tribes, was to carry out the terms of the law. Rullus also ventured to propose the distribution of the Campanian land, which had hitherto been respected by all agrarian reformers. It was chiefly on this ground that Cicero in his three speeches on the Agrarian law succeeded in exciting such a general feeling against it that it was eventually withdrawn. In 60 B.C. the tribune L. Flavius brought forward a bill for the distribution of lands to Pompey's veterans. The Campanian land was certainly to be included in the distribution, and it is clear from Cicero that the bill in some way dealt violently with the rights of private owners. It also, however, enacted that land should be purchased by the state with the wealth which Pompey's conquests had brought into the treasury. The last proposal was supported by Cicero, but the bill seems to have been dropped, only to reappear in more moderate form in the following year. A consular bill, the lex Julia Campana, was passed by Julius Caesar in 59 B.C., which provided for the settlement of Pompey's veterans on the Campanian land, and other lands purchased by the state from private owners in Italy with the full consent of the latter. In its original form, the bill omitted all reference to the Campanian land, which seems to have been included by Caesar in the distribution only when the continued and unreasoning opposition of the senate had goaded him to extreme measures. A commission of twenty was to be appointed to carry out the law, from which Caesar himself was expressly excluded. This measure finally settled the question of the Campanian land, which now passed out of the category of ager publicus. The last agrarian law of the republic was that passed in 44 B.C. on the proposal of the consul M. Antonius, or of his brother L. Antonius. We have no detailed account of the measure, but it seems to have provided grants of land for veterans, and was to be administered by seven commissioners. The law was afterwards cancelled by decree of the senate, probably on the ground of some technical flaw. The emperor Vespasian attempted to reclaim for the state small oddments of land (subseciva) which were held by neighbouring owners to whom they had never been definitely assigned. The attempt met with violent opposition, and though resumed by Titus, was finally crushed by Domitian, who issued an edict recognizing all oddments of land thus held to be private property.