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and Adam Smith have taken the popular view of the agrarian law. It may well weaken the confidence, with which we adopt any conclusions on the subject of ancient institutions, to find a writer so sagacious, so practical as the latter, in a work, that constitutes the very Pandects of political economy, espousing an error so gross, on a subject closely connected with that of his treatise. Rome, like most of the other ancient republics,' says he,' was originally founded upon an agrarian law, which divided the public territory, in a certain proportion, among the different citizens, who composed the state. The course of human affairs, by marriage, by succession, by alienation, necessarily deranged this original division, and frequently threw the lands, which had been allotted for the maintenance of many families, into the possession of a single person. To remedy this disorder, for such it was supposed to be, a law was made, restricting the quantity of land, which any citizen could possess, to five hundred jugera, about three hundred and fifty English acres. This law, however, though we read of its having been executed upon one or two occasions, was either neglected or evaded, and the inequality of fortunes went on continually increasing."* It is difficult to conceive how such a view of the legislation of a people so advanced as the Romans could exist for a moment. The agrarian laws, as no one is ignorant, were a great subject of controversy among Patricians and Plebeians. But this monstrous fiction of a law would be as ruinous to one as to the other. Who can believe, that the great plebeian families, some of them as wealthy and as proud as the oldest patrician houses, would have been constantly urging a law, by virtue of which, if Titius, possessed of five hundred jugera, married Titia, possessed of the same, half their estates respectively became forfeited, alike if they were Plebeians or Patricians? The absurdity of the suggestion increases, when we add, that in republican Rome estates were equally divided between sons and daughters, and that the operation of the law for two or three generations would, of course, have been to reduce a family to beggary; the rather, as no child could acquire property for himself, while he was in the patria potestas.

Even our ingenious fellow-laborer in the Quarterly Review, * Wealth of Nations, book iv. ch. vii. part i.

who has ridiculed the credulity of his countrymen on several topics of ordinary belief, and who appeals to Mr von Niebuhr for sounder views, has fallen into the same difficulty, on the subject of the agrarian law, and appears wholly to have overlooked our author's chapter upon it :-The utter impracticability of this scheme,' says our colleague, ' its total inconsistence with an advanced period of society; the obvious truth, that if all were equal, there would be no expansion of that spirit, which in the ornamental or necessary arts refines and civilizes life ; the death blow put by such a law to one of the strongest desires of our nature, that of improving our condition; these truths, though apparent on a very little reflection, made no impression on a people not yet sufficiently cultivated to comprehend their importance.'

To this last sentence the writer subjoins a note, for the sake of pointing out for disapprobation the following sentiment of Montesquieu :- That it was the equal division of lands, which rendered Rome capable at first of rising from her depressed state.' With opinions like these, as universal as they are here confidently expressed, one cannot but reflect upon the facility of the learned, when we add, that most certainly no such law was ever thought of in Rome, no equal division of lands ever attempted or proposed, and that for any thing in the constitution or laws to the contrary, a Roman Patrician might, as many did, possess lands as broad, and tenants as many, as the duke of Bedford or the earl of Fitzwilliam. The importance of the vulgar error on this subject will form our excuse for a brief citation from Mr von Niebuhr's chapter upon

it:

'It is not long since it was necessary, in every work not expressly designed for scholars, in order to prevent the most disastrous misconception, to prove with great care, that the agrarian laws of the tribunes interfered in no degree with private property in land. At the present day the accounts of the Gracchian commotions, compiled from Appian and Plutarch, are so generally understood, that we may assume, as well known, that no tribunitian agrarian law invaded this sacred right; and yet it is important to reflect how two great thinkers were led to form this false and terrific conception in Roman history.',

Mr von Niebuhr then proceeds to remark on the sentiments of Machiavelli and Montesquieu on this subject, and refers to

the passage of the former, which we have just quoted in the extract from the Quarterly Review.*

These renowned agrarian laws, then, the well known source of continual agitation, and the theme in modern times of so much declamation, concerned not landed estates, but public lands, commons, domains. They limited not the quantity of land, which the Roman citizen had a right to own and to cultivate, but the portion of the public lands, he had a right to take on lease from the state. The Roman Patrician was as free to buy of any one, who would sell, as the English or American citizen; but the arrogance of the nobles and the jealousy of the tribunes led to a series of laws limiting the quantity of the public domains, which any one might occupy on lease, to about three hundred and fifty acres.

In the earlier periods of the Roman state, before the growth of the plebeian order, and while the republic consisted of patricians and their clients, the public lands-particularly those acquired to great extent by conquest-were the property of the Patricians, who, in fact, were the state. By the Patricians they were leased to their clients, on a kind of feudal tenure.

*We do not know when the attention of the learned was first called to the true solution of the question relative to the nature of the agrarian laws; but it is scarcely possible, that it should have been proposed without immediately approving itself to the judicious. In the accounts given by Appian and Plutarch of the Gracchian seditions, and in the allusions of Cicero and others to the agrarian laws, the epithet public is almost invariably applied to the land proposed to be divided. Thus in the Epitome of Livy, 1. lviii. the words of the law are given, ne quis ex agro publico plus D jugera possideret. As late as 1775, Bach, in his history of the civil law, follows the old notion of this law. Hist. Jur. Rom. p. 135. Schweighæuser, in his edition of Appian, in 1785, seems to have established the correct view of the subject, by shewing the true reading of the leading passage in Appian (De Bello Civ. i. 8.) to be Μηδένα ἔχειν τῆσδε τῆς γῆς πλέθρα πεντακοσίων πλείονα. The former editions of Appian omitted the node, and it was restored by Schweighauser on the authority of good manuscripts. Mr Hugo does not scruple to ascribe to this happy correction the chief effect, in correcting the public opinion on this subject (Geschichte des Romischen Rechts, p. 265 ;) but there are very many places in Appian and Plutarch, which needed no correction, and are equally decisive of the matter in hand. Thus in Plutarch, it is said of Octavius, the colleague of Gracchus, who opposed the latter in his attempts to procure the passage of the law, Ἐπεὶ δὲ ἑώρα τὸν Οκτάβιον ἐνεχόμενον τῷ νόμῳ καὶ κατέχοντα τῆς δημοσίας χώραν συχνήν, &c. position of Scipio Nasica to the same law is thus accounted for by Plutarch : #λírτην γάρ εκέκτητο γῆν δημοσίαν, καὶ χαλεπῶς ἔφερεν ἐκβαίνειν αὐτῆς ἀναγκαζόAvos. Plut. Op. i. 829 and 830. We forbear to multiply these authorities, but the foregoing we have thought due to our readers, in support of a proposition, which, though familiar to the learned on the continent of Europe, has never, we believe, been maintained in England or America.

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In process of time the plebeian order grew in number, strength, and consequence; and the Cassian law was passed, bestowing on the Plebeians, in fee, small tracts of this ager publicus, while the Patricians, as before, received the greater portion of it. While the Patricians continued faithfully to observe this law, no disturbances arose. But with the growth of the population on the one side and the progress of luxury on the other, it was more and more the interest of the Patricians to keep the domains in their hands, and to defraud the Plebeians; and as the latter acquired power in the state, it was more and more their interest to limit the quantity of the ager publicus, which a Patrician could hold, and of course increase the portion to be divided in fee among the Plebeians. These struggles were constantly renewed till the Licinian law was enacted, on which all the subsequent agrarian laws were modelled, and of which. our author enumerates the following as among the chief provisions:

1. The public land of the Romans shall be ascertained in its limits. Portions of it, which have been encroached on by individuals, shall be restored to the state.

2. Every estate in the public land not greater than this law allows, which has not been acquired by violence or fraud, and which is not on lease, shall be good against any third person.

3. Every Roman citizen shall be competent to occupy a portion of newly acquired public land, within the limits prescribed by this law, provided this land be not divided by law among the citizens, nor granted to a colony.

4. No one shall occupy of the public land more than five hundred jugera, nor pasture on the public commons more than a hundred head of large, nor more than five hundred head of small stock.

5. Those who occupy the public land shall pay to the state the tithe of the produce of the field; the fifth of the produce of the fruit tree and the vineyard; and for every head of large stock and every head of small stock

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yearly.

6. The public lands shall be farmed by the censors to those willing to take them on these terms. The funds hence arising to be applied to the pay of the army.'

The foregoing were the most important permanent provisions of the Licinian law; and for its immediate effect, it provided that all the public land occupied by individuals over five hundred jugera should be divided by lot in portions of seven jugera to the Plebeians.

Such is the substance of the renowned agrarian law. We need not say, that the simple statement of it dispels into thin air all the eloquent speculations, which have been made on a compulsory equality of estates at Rome, with which it had no connexion whatever. Nor will it escape the observation of practical readers, that the first use, which two thirds of the Plebeians would make of their seven acres, would be to sell them to their patrician neighbors, did the law grant them a power of alienation.

We must here take leave of this interesting subject and of Mr von Niebuhr's work. We feel how little justice we have been able to do it; and can only hope, that our remarks may draw the notice of our readers to a work destined, we are sure, to shed a broad light on the study of history, and to fill a large space in the attention of the reasoning and thinking part, not only of the European,' but of the American community.

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