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by conquest, it would seem that the plcbs had as good a title to a share of the newly conquered lands, as the patricians to the exclusive enjoyment of those lands which had been acquired by conquest before the plebs had become an estate ; and according to Livy (iv. 49), the plebs founded their claim to the captured lands on their services in the war. The determination of what part of newly conquered lands (arable and vineyards) should remain public, and what part should be assigned to the plebs, which, Niebuhr says, " it need scarcely be observed was done after the completion of every conquest," ought to have been an effectual way of settling all disputes between the -patricians and plebs as to the possessions of the former ; for such an appropriation, if it were actually made, could have no other meaning than that the patricians were to have as good title to possess their share as the plebs to the ownership of their assigned portions. The plebs at least could never fairly claim an assignment of public land, appropriated to remain such, at the time when they received the share of the conquered lands to which they were intitled. But the fact is, that we have no evidence at all as to such division between lands appropriated to remain public and lands assigned in ownership, as Niebuhr assumes. All that we know is, that the patricians possessed large tracts of public land, and that the plebs from time to time claimed and enforced a division of part of them. In such a condition of affairs, many difficult questions might arise ; and it is quite as possible to conceive that the claims of the plebs might in some cases be as ill founded as the conduct of the patricians was alleged to be rapacious in extending their possessions. In the course of time, owing to sales of possessions, family settlements, permanent improvements made on the land, the claims on the land of creditors who had lent money on the security of it, and other causes, the equitable adjustment of rights under an agrarian law was impossible ; and this is a difficulty which Appian (i. 10. 18) particularly mentions as resulting from the law of Tib. Gracchus.
Public pasture lands, it appears, were not the subject of assignment.
The property (public-uni) of the Roman people consisted of many things besides land. The conquest of a territory, unless special terms were granted to the conquered, seems to have implied the acquisition by the Roman state of the conquered territory and all that it contained. Thus not only would land be acquired, which was available for corn, vineyards, and pasture ; but mines, roads, rivers, harbours, and, as a consequence, tolls and duties. If a Roman colony was sent out to occupy a conquered territory or town, a part of the conquered lands was assigned to the colonists in complete ownership. [CoLONiA.] The remainder, it appears, was left or restored to the inhabitants. Not that we are to understand that they had the property in the land as they had before ; but it appears that they were subject to a payment, the produce of which belonged to the Roman people. In the case of the colony sent to Antium, Dionysius (ix. 60) states, " that all the Antiates who had houses and lands remained in the country, and cultivated both the portions that were set aside for them and the portions appropriated to the colonists, on the condition of paying to them a fixed portion of the produce j" in which case, if the historian's
statement is true, all the sums paid by the original landholders were appropriated to the colonists. Niebuhr seems to suppose, that the Roman state might at any time resume such restored lands ; and, no doubt, the notion of a possibility of resumption under some circumstances at least was involved in the tenure by which these lands were held ; but it may be doubted if the resumption of such lands was ever resorted to except in extraordinary cases, and except as to conquered lands which were the public lands of the conquered state. Private persons, who were permitted to retain their lands subject to the payment of a tax, were not the possessors to whom the agrarian laws applied. In many cases large tracts of land were absolutely seized, their owners having perished in battle or been driven away, and extensive districts, either not cultivated at all or very imperfectly cultivated, became the property of the state. Such lands as were unoccupied could become the subject of possessio ; and the possessor would, in all cases, and in whatever manner he obtained the land, be liable to a payment to the state, as above-mentioned in the extract from Appian.
This possessio was a real interest, for it was the subject of sale: it was the use (usus) of the land ; but it was not the ager or property. The possessio strictly could not pass by the testament of the possessor, at least not by the mancipatio. (Gaius, ii. 102.) It is not easy, therefore, to imagine any mode by which the possession of the heres was protected, unless there was a legal form, such as Savigny has assumed to exist for the general protection of possessiones in the public lands. The possessor of public land never acquired the ownership by virtue of his possession ; it was not subject to usucapion. The ownership of the land which belonged to the state, could only be acquired by the grant of the ownership, or by purchase from the state. The state could at any time, according to strict right, sell that land which was only possessed, or assign it to another than the possessor. The possession was, in fact, with respect to the state, precarium ; and we may suppose that the lands so held would at first receive few permanent improvements. In course of'time, and particularly when the possessors had been undisturbed for many years, possession would appear, in an equitable point of view, to have become equivalent to ownership ; and the hardship of removing the possessors by an agrarian law would appear the greater, after the state had long acquiesced in their use and occupation of the public land.
In order to form a correct judgment of these enactments which are specially cited as agrarian laws, it must be borne in mind that the possessors of public lands owed a yearly tenth, or fifth, as the case might be, to the state. These annual payments were, it seems, often withheld by the possessors, and thus the state was deprived of a fund for the expenses of war and other*general purposes.
The first mention by Livy of conquered land being distributed among the plebs belongs to the reign of Servius Tullius (i. 46,47). The object of the agrarian law of Sp. Cassius (Liv. ii. 41; Dionys. viii. 70), b. c. 484, is supposed by Niebuhr to have been " that the portion of the populus in the public lands should be set apart, that the rest should be divided among the plebeians, that the tithe should again be levied and applied to paying the army.'* The agrarian law of C. Licinius Stolo (Liv, vi. 36 ;