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On some Problems of Roman agrarian history.

By M. O. B. Caspari.

(A). The post-Gracchan Land Laws.

(a) Chronology.

The only direct evidence which we possess for the dating of the land laws enacted in Rome as a wind-up to the reforming movement of the Gracchi is contained in a somewhat confused passage of Appian:

καὶ ἡ στάσις ἡ του δευτέρου Γράκχου ἐς τάδε ἔληγε.

(1) νόμος τε οὐ πολὺ ὕστερον ἐκυρώθη, τὴν γῆν, ὑπὲρ ἧς διεφέροντο, ἐξεῖναι πιπράσκειν τοῖς ἔχουσαν

.

(2) καὶ περιῆν ἐς χεῖρον ἔτι τοῖς πένησι, μέχρι Σπόριος Θόριος δημαρχῶν εἰσηγήσατο νόμον, τὴν μὲν γῆν μήκετι διανέμειν, ἀλλ ̓ εἶναι τῶν ἐχόντων, καὶ φόρους ὑπὲρ αὐτῆς τῷ δήμῳ κατατίθεσθαι, καὶ τάδε τὰ χρήματα χωρεῖν ἐς διανομάς· ὄφελος δ ̓ οὐδὲν ἐς πολυπληθίαν (3) καὶ τοὺς φόρους οὐ πολὺ ὕστερον διελυσε δήμαρχος ἕτερος. καὶ ὁ δῆμος ἀθρόως ἁπάντων ἐξεπεπτώκει. ὅθεν ἐσπάνιζον ἔτι μᾶλλον ὁμοῦ πολιτῶν τε καὶ στρατιωτῶν. καὶ γῆς προσόδου καὶ διανομῶν, καὶ νομών (?), πεντεκαιδεκα μάλιστα ἔτεσιν ἀπὸ τῆς Γράκχου νομοθεσίας ἐπὶ δίκαις ἐν ἀργία γεγονότες).

Of the first of these laws all that can be said is that it was passed soon after the death of Gaius Gracchus. The expression οὐ πολὺ ὕστερον. which is our only available mark of time, is too loose to permit of a definite assignation to any particular year2).

A clue to the date of the second law is supplied in the last words of the above quotation. These are usually taken to mean that the landcommission instituted in 133 B. C. by Tiberius Gracchus existed for

1) Bell. Civ. I ch. 27 §§ 121-124.

2) For a detailed refutation of theories which propose a more definite date, see Cardinali, Studi Graecani p. 196 n.

15 years all told, and was then abolished1). Appian's second measure, which clearly implies the abrogation of Tiberius' commission, would thus belong to 118 or (counting inclusively) 119 B. C.

But the 15 years mentioned in Appian's text are not made by him to cover the whole period of the commission's existence, but only those years during which its activities were suspended owing to delays in settling disputed claims (ἐπὶ δίκαις ἐν ἀργίᾳ γεγονότες). In another passage 2) Appian informs us that the year in which the distribution of land came to an end was 129 B. C. (consulship of Tuditanus). If this is the time at which the commission entered upon its period of supended animation, its final extinction cannot have occurred before 114 B. C., which is the date accepted by C. Neumann3) and Kornemann1).

Another point, however, remains to be considered. Did the commission remain continuously on the shelf to which it had been consigned in 129 B. C., until it was finally swept into the rubbish heap? If such is the case, it must be assumed that Gaius Gracchus did not bring it again into operation. But the evidence in favour of Gaius having revived his brother's and law is too strong to be set aside); and it follows with tolerable certainty that the land commission was revived at the same time and continued its work during the two years of Gaius' supremacy in Rome. It appears therefore that two further years should be allotted to its total span of life, its final abrogation thus falling in the year 112 B. C.

In corroboration of this date it may be observed that in 112 B. C. some new regulations were undoubtedly made with regard to the ager publicus in Italy, and that these fresh enactments accorded some privi

1) This is the interpretation put forward by Mommsen (Berichte üb. d. Verhandlungen d. Kgl. sächsischen Gesellschaft d. Wissenschaften, philol.-historische Klasse, vol. II (1850) pp. 89-95). The words of Appian's text would seem to admit of another version, viz. that the commission was suspended in the fifteenth year after Tiberius' legislation, i. e. in 118 B. C. It would be hard to say that the somewhat lax rules of late Greek grammar told against this translation any more than against Mommsen's. But Appian himself relates elsewhere (see next note) that the commission was reduced to inactivity as far back as 129 B. C. 2) I ch. 19 §§ 79-80.

3) Geschichte Roms während des Verfalles der Republik pp. 265-6.
4) Klio, Beiheft I pp. 52—3.

5) Leaving aside those texts in which a confusion between Gaius and his brother may be suspected, we find an unequivocal statement in Livy, Epit. LX: Gaius... tulit . . . legem agrariam, quam et frater eius tulerat. The frequent passages in the extant Lex Agraria (quoted in next note), in which certain Italian lands are mentioned as exempt from confiscation by a law of Gaius Gracchus, clearly imply that Gaius had renewed his brother's policy of land distribution, and such renewed distribution in turn implies the revival of the land commission.

Klio, Beiträge zur alten Geschichte XIII 2.

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leges to the Latin and Italian tenants of these domains). Although the exact nature of these facilities cannot be ascertained, the most probable inference is that inter alia they appropriated to various Latin and Italian corporations the territories which these had previously held on the precarious basis of possessio2). From this conclusion it is but a small step further to suppose that the same statute which conferred titles of ownership on the Latin and Italian possessores also abolished the land commission of Tiberius. This body had no power to confiscate any estates except certain specified amounts of ager occupatorius. Of such available domains the greater part had certainly been seized by the commissioners long before 112 B. C., and it is unlikely that in this year there remained any large expanse of land liable to confiscation, save only those territories which were held by Latin and Italian corporations and had since 129 B. C. been virtually exempted from distribution for special reasons of federal politics"). To convert these estates into private property was therefore tantamount to abrogating the Gracchan commission, for this body would henceforth find its occupation gone. These is no evidence to show whether the law under discussion proceeded formally to abolish the commission-possibly its formal abrogation was never enacted-, but its contents appear sufficiently in accord with those of Appian's second measure to suggest the identification of the two. In this case Appian's second law certainly belongs to 112 B. C.

The date of Appian's third law depends entirely on the question whether it should be identified with a statute extant in a well-known inscription of the former Bembine collection1), or whether it should be regarded as a separate measure. The former view is commended by the fact that the inscription contains that very provision, the abolition of rent on ager occupatorius 5), which Appian makes the distinctive feature of his law; and the prevalent opinion is that the two measures should be regarded as one. But this identity has been denied by Walter 6), on the ground

1) CIL I 200 ch. 29: item Latino peregrinoque, quibus M. Livio L. Calpurnio [consulibus] (i. e. 112 B. C.) licuit, sed sua fraude facere liceto. It is clear from the general context that the facilities here accorded are in connexion with the use of public land.

2) Greenidge, History of Rome p. 288.

3) Appian I. 19 §§ 79-80. This exemption threw the commission out of employment, a fact which proves that already in 129 B. C. there remained little land to confiscate save what was held by the Latins and Italians. Ed. Meyer has conjectured that the Latini peregrinique held absolutely the greater part of the ager occupatorius. (Kleine Schriften pp. 403-4.)

4) CIL I 200. 5) Ch. 19.

6) Geschichte des römischen Rechts I P. 374 n. 69.

that the inscription contains a great many additional clauses of which Appian makes no mention; and this same consideration has led Hardy1), the most recent editor of the inscription, to express some misgivings as to the correctness of the ordinary view.

Closer consideration of the extant statute will reveal that the discrepancy between it and Appian's law is more apparent than real. Of the residual clauses of the inscription some deal with non-Italian land, which does not come within the scope of Appian's narrative; others merely serve to confirm existing arrangements for the tenure of Italian estates and do not introduce any new features of importance. Furthermore, if it be true, in accordance with the above-mentioned theory2), that the appropriation of ager publicus to Latin and Italian communities had already been accomplished by a previous law in 112 B. C., the clauses of the extant statute which deal with this same matter3) are, like so many others, a mere re-affirmation of existing regulations. In this case the paragraph concerning the abolition of rents is literally the only far-reaching innovation in the inscription with regard to land tenures in Italy. But however this may be, it remains true that the contents of Appian's third law, which no doubt are given by the historian in a highly summarised form, agree sufficiently well with the salient portions of our extant statute to justify our treating the two measures as one.

Now the date of the extant statute has been ascertained beyond all doubt as being 111 B. C.4). This is accordingly the year in which Appian's third law was passed").

(b) Authorship.-The only thing that can be said for certain concerning the authorship of the laws now under discussion is that one of them was carried by a tribune named Sp. Thorius; but it remains a vexed question whether his measure was the second or the third in Appian's series). Appian himself, it is true, distinctly brings him into

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2) Pp. 186.

3) Chs. 31-2.

1) Six Roman Laws p. 61 n. 17.
4) See Mommsen's commentary, CIL I p. 76.

5) According to the present theory the second and third of Appian's laws were passed in consecutive years. This stands well in accord with Appian's statement that the third law was enacted où лодì voτεgov after the third. This argument has been used by Kornemann in favour of dating the second law to 114 B. C. instead of 118 B. C.; but it carries still greater force if 112 B. C. is the year in question.

6) The former view has been put forward by Mommsen (CIL I p. 77), and adopted by Rudorff (Römische Rechtsgeschichte pp. 40, 211); Lange (Römische Altertümer II pp. 581-2); Herzog (Geschichte und System der römischen Staatsverfassung I pp. 477-8); Kornemann (loc. cit.); Heitland (The Roman Republic II p. 326), and Hardy (op. cit. pp. 47-8); Niese (Grundriß der römischen Geschichte, 4th ed., p. 174)

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connexion with his second statute (Σπόριος Θόριος δημαρχῶν νόμον εἰσηγήσατο, τὴν γῆν μήκετε διανέμειν, ἀλλ' εἶναι τῶν ἐχόντων, καὶ φόρους ὑπὲρ αὐτῆς τῷ δήμῳ κατατίθεσθαι). But there is a passage in Cicero which apparently contradicts Appian's statement: Sp. Thorius satis valuit in populari genere dicendi. Is qui agrum publicum vitiosa et inutili lege vectigali levavit 2).

Not a few scholars have thought it possible to reconcile Cicero's words with Appian's by taking them to imply that Thorius relieved the public land of an improperly enacted and harmful law by [imposing] a rent', which agrees perfectly with all that Appian says. But, as has often been pointed out, this translation is very far-fetched, and does scant justice to Cicero's powers of expressing himself clearly. Furthermore, it raises an insoluble question with regard to the lex vitiosa et inutilis which Thorius ex hypothesi abolished. The only conceivable reference is to the land law of Tiberius Gracchus. fons et origo mali, by which the ager occupatorius was made liable to confiscation"). This measure might indeed be described from Cicero's point of view as inutilis, but on what grounds could it be called vitiosa, i. e. passed by an improper procedure? However much Tiberius may have dislocated the constitution, not one of his reforms was carried in contravention of legal propriety. His legislation was unimpeachable in form, and no exception could be taken at all events to the procedure by which his agrarian act was carried 4) 5).

inclines to the same view. The latter opinion was expressed by Rudorff in his earlier work, Das Ackergesetz des Sp. Thorius, and is also maintained by Long (Decline of the Roman Republic I p. 354); Ihne (Römische Geschichte V p. 113 n. 3); C. Neumann (op. cit. pp. 265–6); Strachan-Davidson (Appian bk. I p. 31 n. 2); Greenidge (op. cit. p. 288 n. 2) and Maschke (Zur Theorie und Geschichte der römischen Agrargesetze pp. 87—8). Daremberg - Saglio (s. v. Agrariae Leges) refrains from offering a definite decision, and Walter (loc. cit.) circumvents the difficulty by assuming that the Lex Thoria was distinct both from the second and from the third of Appian's measures. Walter's expedient is unsatisfactory, as he admits the similarity or identity of content between the Lex Thoria and Appian's third measure: plebiscita non sunt multiplicanda praeter necessitatem.

1) The MS. readings Borgios and Bógios have been generally rejected by modern critics and commentators in favour of Oógios. This emendation is quite justified, as the forms Borgios and Bógios are mere ghosts, being unknown to Roman nomenclature.

cit. P.

47-8.

2) Brutus ch. 36 § 136. 3) Hardy, op. 4) Though criticised and vilified by several ancient authors, Tiberius Gracchus is never accused by them of having violated the established forms of procedure in legislation.

5) The correctness of Tiberius' procedure is also admitted by modern critics Mommsen (on the deposition of the tribune Octavius): 'sie ist besonders deshalb merkwürdig, weil hierbei alles in Form Rechtens vor sich ging, wie denn auch die Gültigkeit des Schlusses nirgends angefochten wird.' (Staatsrecht 13

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