As Plutarch and Appian expressly state that the law applied to the γῆ δημοσία only, it was evident that something else must have been meant by it. The first who thought here of the ager publicus was Heyne, in a programme the occasion for which was taken from the revolutionary confiscations; yet the question, What then was the ager publicus? was not cleared up, as Heyne so often had a general notion of the truth which he but rarely worked out. Afterwards also, the historical writers who treated of the Gracchi were still completely in the dark with regard to it. Once upon a time, when I did not yet see my way into these riddles, I asked the great F. A. Wolf his opinion on it. Yet he, with all the distinguished qualities of his mind, had this fault, that he sought to have the credit of knowing every thing, and then gave himself the air of not wishing to commit himself. He too did not know how to get over this difficulty. I was brought to the subject by chance. In Holstein at that time bondage was abolished. Instead of the peasants, serfs as well as freemen, having hereditary abodes on the estates as formerly, their possessions were taken from them, and changed into tenant farms, whilst they themselves were arbitrarily transferred to small and worse farms. This was quite abominable. Even where there were no serfs, the same measures were now to be enforced. I called to Heaven against this injustice, and came to raise the question,—“What right have they to do this?” On this occasion I was led to inquire into the nature of tenure at will, and traced it among various nations; and this gave me the key to the Roman jus agrarium.
The general notion of the Italian nations was this, that there is an indissoluble relation between the land and the right of citizenship; that every kind of ownership in the soil is derived from the state alone. The soil is merely the substratum on which the preconceived idea of the civil organization rests. There is a great similarity in this to the feudal system. According to strict feudal law, there is no land whatever but what has a liege-lord. All fiefs derive from the prince as the lord paramount, and then follow the mesne tenures. In point of fact, this idea has never indeed been carried out in its full meaning. Another analogous case is in the East, especially in the East Indies, where we find the sovereign the real owner of the soil, and the peasant’s tenure to be only at will (precario). Thus also among the Italian nations, all right of property in the soil is from the soil.
We read in Appian a statement, of which it is evident that it has not sprung from his own intellectual resources, but that it is an extract from the history of the Gracchi by Posidonius, who was not inferior to Polybius, and whom he uses as his chief authority for that period, as he did Dionysius before, and then Polybius, Fabius, and at last, in all probability, Rutilius. Now, if we see it mentioned by him, that the ager publicus was partly turned into colonies and demesnes, and partly sold or let on lease (the latter notice is found in Plutarch only), we may ask ourselves, How was it possible that difficulties should have arisen on this subject? The Roman republic had only to lay down the law, that no one should possess more than a certain number of lots, and all the evil consequences were prevented. The fact is that Appian and Plutarch misunderstood the ambiguous expression of their predecessor. There is no question of any letting on lease; but a tax was laid on the estates, the tithe (decuma), from corn; the fifth (quinta), from fruit; and from every thing else in proportion. If, then, the corn was taken in kind, the state was obliged to establish great storehouses; for the cattle it had to pay the pasturage; so that of course the revenue was different in different years. A new system was therefore adopted of letting out the revenue from those taxes to publicani. The political forms of the Romans have almost always an analogy in the Greek constitutions, and so has often the civil law; but with regard to the jus agrarium the Romans stand alone. The Greek state made conquests and founded colonies, but the possessio agri publici is unknown to that people: in one instance only does any thing like it happen. We see from Xenophon’s Anabasis that he devoted an estate at Scillus to the Artemis of Ephesus; and that the temple did not cause the estate to be let on lease, but received the tithe from it, and that this was farmed. As the victim was never offered as ὁλόκαυστον, but a part of it only was burnt in honour of the god; thus of such an estate, not the whole proceeds, but a part only, was offered as a gift. According to the system of Roman law, the state did not keep as much as possible of what was publicum for itself; but it proclaimed that every Romanus Quiris who wished to cultivate a part of the conquered country, might take it. This was called occupatio agri publici. At first, those who were patricians, as the oldest citizens, might take a plot wherever they liked. This was for the most part waste land, become desolate in the war, on the hostile frontier, and therefore there was no great competition for it. From the very first, the obligation was imposed of paying the decumæ and quintæ. It was this revenue which was farmed, and this has always been overlooked. The terms agrum locare and agrum vendere are synonymous, and mean neither more nor less than fructus agri vendere, agrum fruendum locare. One really had the possession of such an estate very much as if it were one’s own, so that a third party could not claim it; just like the tenant at will, from whom the landlord may under certain conditions take his farm, but who enjoys perfect protection against any one else. This was secured among the Romans by the possessory interdicts, so that this possession might also become hereditary. But the state, on the other hand, might at any time interfere, and say, “Now I want to establish a colony here, or to divide the land viritim, the occupant has therefore notice to quit;” and in that case the latter had no auctoritas whatever against the state. From this it is evident that the state could always dispose of the ager publicus, so that, for instance, no more than a certain number of jugera came into the possession of a single person; for others would thus have been excluded from it, and the excessive influence of an individual, from the immense number of his clients, might have become dangerous to the whole community.
This is the great difference between property and a mere possessio. The possessio was given by the prætor in the edict by which one was called upon to take it; the prætorian right of inheritance rests wholly and entirely upon this ground: the prætor gives possessionem bonorum secundum tabulas. Property, one might leave by will as one liked; but possession (occupancy) one could only transfer to another by a sale before witnesses according to a fair arrangement, and he who had received it, proved the legal acceptance, and armed himself with his interdictum possessorium; he had witnesses of his having got possession neque vi, neque clam, neque precario. But how was it when the possessor died? By his will he could utterly disinherit his children, and leave what he had in property to the most unworthy person, without the prætor in the earlier times being able to interfere; but the prætor could do so when the tenure was that of possession, and as being the source of possession, he decided in the latter case according to a principle quite different from that which applied to the former, as the chancellor of England does in Equity. Even those who entertain unfavourable views of the Plebes and the tribunes, as for instance Livy and Dionysius, cannot deny that the patricians were usurpatores agri publici; yet these might according to the letter of the law rightly make their claims, and it is moreover not impossible that they appeared to have been perfectly honest. It is in general a great result of historical research, that one learns to judge fairly, and can see that there are good men in the most opposite parties; that the distinctions of party do not constitute the worth of man. Thus it was with regard to the patricians. When Livy and Dionysius, although against the Plebes, state that the ager publicus had been occupied per injuriam ὑπὸ τῶν ἀναιδεστάτων πατρικίων, their remarks are unjust; a fact which can only be understood by going back to the origin of the matter.
Only the original Roman citizen of the three old tribes, that is to say, the patrician, could, according to the earliest law, be admitted to the possessio. He got from the prætor as much as he thought he could cultivate, no limits whatever being fixed; and for this he had nothing to pay, but only to invest his capital in making the land productive. The Plebes now grew up at the side of this order. These were the real strength of Rome: they furnished the whole of the infantry; their blood was shed in the wars; and they achieved the conquests. It was therefore undoubtedly also the right of the Plebes to have their share in these conquests: the Populus, however, continued to look upon these as their own property. Servius Tullius had already ordered that no more unlimited grants should be made, but that a part of the conquered land should remain with the state, and that the rest should be divided among the Plebes as their freeholds. According to the rules of the augural system, squares were made, and then lots were numbered, and tickets issued to all those who were to have a share: each of these tickets represented a square (centuria). This is called assignatio. Such is the law of Servius Tullius, which is inseparably connected with the constitution of the Plebes. From Sallust’s expressions, we are to suppose that after the expulsion of the kings the Servian institutions were restored. Yet they were again done away by the patricians. Only the ager regius was as yet divided; afterwards every thing remained with the patricians, who likewise dispensed themselves from paying the tithes. The tribunes were anything but mutinous; they only wished as the natural advocates of their order to make good its right. Perhaps the plebeians felt particularly aggrieved by the Etruscan war, as they had to sustain the deficiency of the lost third.
Sp. Cassius was the first who brought in an agrarian law, first in the senate, then in the curies, and lastly in the centuries; or else perhaps, first in the centuries, and then in the curies. It was his proposition, to restore the Servian law; to re-establish the tithes and fifths; to sell part of the conquered country, and to mete out the remainder and assign it to the Plebes. This is all that we know of the lex Cassia. All the rest of Dionysius’ statement, as I positively assert after mature consideration, bears evident traces of having been taken from a writer of the second half of the seventh century, and is invented with great ignorance of the old state of things. The senatus-consultum of which he speaks has not the slightest authenticity. The law for the division of the land is so closely connected with the whole fate of the plebeians, that there is every likelihood that it was already mooted in the peace on the Mons Sacer; under Cassius it is fully brought out. According to all appearance, it was carried; as the Lex agraria, down to the time of the decemvirs, is spoken of as a right of which the Plebes were in possession, but which was not kept as they were promised. Thus Cassius stands out as a remarkable man; in Cicero he is mentioned as being well known, and yet there is very little said about him.
It is historical that Sp. Cassius was executed in the following year for high treason, and that from his estate (ex Cassiana familia) a votive-gift was offered in the temple of Tellus on the Carinæ. It was probably in order to remove from this deed the appearance of crying injustice, that the tale of his having been judged by his father was invented. Dionysius already is justly startled at the fact that Cassius, who at that time had no less than thrice been invested with the consulship, should have been put to death by his father. The leges annales were indeed not yet then in force; but nevertheless it is incredible that one who had been thrice consul, and had triumphed, should have still remained under his father’s rule. Another tradition gives a milder version, which is followed by Dionysius and Cicero de Republica. The father of Sp. Cassius is said to have declared before the court that he considered his son as guilty, and on this the latter was executed. The truth is that the public accusers (Rüge Herrn), the quæstores parricidii impeach Cassius before the curies; and the curies, as the community to which he belongs, cause him to be executed. This is intelligible: he had most grievously offended his order, and therefore they are only too glad to wreak their vengeance upon him. Dionysius is perplexed with the account; Livy gets over the difficulty. According to him, it is the Plebes, which condemns Cassius, as the tribunes are envious of him:—as if these had at that time already been able to bring forward any proposition of the kind! A question which has before now been mooted by the ancients, is whether he was guilty or not. Dionysius believes him guilty; Dio Cassius holds him to have been innocent; the all-seeing God alone can decide on it. What he did was done with the clearest right; yet the same act may have sprung from the best or from the most perverse intentions, and he may either have wished to further the welfare of the state, or he may have aspired to the royal dignity. To suspect such a design twenty-five years after the expulsion of the kings, was by no means so absurd as when, seventy years later, Sp. Mælius was charged with it. Cassius was no common man, otherwise he would not in those times have been thrice consul, which was then a thing quite unheard of: no one besides had been invested so often with that dignity but P. Valerius Poplicola, and with regard to him also the Fasti are very indistinct. The manner in which Cassius concluded his leagues betokens a great soul. It is therefore quite possible that he entertained the purest intentions of wisdom and justice; for Rome’s position in consequence of the spread of the Volscians was not free from danger, and it was necessary to keep together, and to concentrate all her forces. Guilty or innocent, a great man he was, and detestable the faction which condemned him. With him his clan disappears from among the patricians. Very strange is what Dionysius says about his having had children, and that a question thereupon had risen of executing them also; but that they were spared, and ever since the children of criminals likewise. This looks like a quotation from the law books relative to the establishment of a new juridical institution; yet it may be something quite different. We shall afterwards find a son of Sp. Cassius, and in a place where we should certainly have least expected to have met with him. In all likelihood, the stern judge, L. Cassius Longinus, 640, as also the murderer of Julius Cæsar, are sprung from his stock: it is no wonder that this family went over to the Plebes. The condemnation of Sp. Cassius by a Fabius lays the foundation of that greatness of the Fabian house, of which no other instance is to be discovered in the Roman Fasti. During seven years (269-275), we always find a Fabius consul; as in the beginning of the republic the Valerii were for five years. The conclusion therefore is quite natural, that the Fabii were at that time in possession of a rightful claim, and that the second tribe, that of the Tities, was represented by them.
One of the drawbacks of a free government is the extreme difficulty of retrieving a fault which has been once committed. The efforts of rulers to amend it are rarely acknowledged by the people. An independent prince may do so without weakening his authority, and without any danger to himself. But the case is different in republics. If the people were good-natured and conscientious enough to hold out the hand of reconciliation, it would do. But it is not so. If a government wishes to make amends to those whom it has injured, the first step which these take is to revenge themselves. This must excuse the Romans who were in power,—especially if Sp. Cassius fell an innocent victim,—when they were guilty of another arbitrary act, and after his death once more changed the constitution in their own favour. The government could not now stop short; and least of all, if it was conscious of guilt. If it had let the constitution remain as it was, it had to expect, that in the free election of the centuries for the consulship the plebeians would only have allowed patricians who were like Sp. Cassius to get it. They were therefore obliged to do what Dionysius so strangely describes, when he tells us that the Plebes had withdrawn from the elections, and that these were now conducted by the principal men alone. As if under the Servian constitution any other but the principal men could ever have turned the scale! The fact is quite different. I state it as it is; the proofs I will not adduce here.
In the year after Cassius’ death, or even in the same year, when consuls were to be elected, the election was no more held by the centuries; but the senate nominated the candidates, and the curies confirmed them. Yet owing to this there arose the most violent contention between the Plebes headed by the tribunes and the consuls. For though the tribunes at that time were still confirmed by the curies, yet the wrong was so glaring, that even the meekest could not have borne it. And hence the character of the tribunate is now suddenly changed. Up to that time no traces are found of tribunician commotions. The honour of the order was too deeply wounded: on one side the agrarian law had not been carried out; on the other, unlawfully elected consuls were in power. The tribune Ti. Pontificius therefore puts a veto to the levy, on the ground that the people ought not to serve under an illegal government. The old annals would hardly have recorded his name, if his resistance had not been the first made by a tribune. The enlistment was then carried on by force, be it, that open defiance was now bidden to the tribunes, and that those who did not answer were seized and punished; or that the consuls ordered the houses of those living in the country to be set on fire, and their cattle to be driven away; or finally, that they transferred the place of enlistment from the town to the country, whither the power of the tribunes did not reach. An army being raised in this manner, the despair of the plebeians went so far that they would rather let themselves be killed by the enemy like victims, than fight in behalf of their tyrants. This fermentation lasted for two years, and at length it came to such a height, that the senate, as if by a free act of grace, consented to give up to the Plebes the election of one consul by the centuries, perhaps without a senatus-consultum. The consequence of which was, that the consul whom the centuries had chosen, met with no resistance from the plebeians; whilst, on the other hand, they in every possible way opposed the other. Meanwhile the times were so bad, the neighbouring nations also growing more and more bold against Rome, that the tribunes themselves saw, that one ought rather to put up with a wrong, than to let the commonwealth go to ruin. The Plebes therefore in the following year (272) conceded to the senate and the curies the election of one of the consuls. Yet on that occasion it must also have wrung from them the right, that the tribunes no more needed to be confirmed by the curies. Publilius could never have become a tribune, if this change had not already taken place before his law was passed. According to the traditions, there must even at that time have been as many as five tribunes.
During this period the Volscian wars continued, yet they may not have been of great importance, so that the Latins and Hernicans could by themselves make head against them. But another war weighed upon Rome alone,—that against the Veientines. Veientine wars are already mentioned under all the kings beginning with Romulus; but they are quite apocryphal. Veii, according to the latest researches, was about one German mile (5 Engl.) in circumference, as was Rome in the days of Servius Tullius. That there should have been two such large towns so near each other, almost within two or three German miles, is very remarkable: it shows how strong the opposition must have been in those times between the Latins and the Etruscans. The incidents of the war are diffusely told by Livy and Dionysius; and very prettily indeed by the former, who deemed it all to be true. A long and severe war against the Veientines may be held to be authentic. The details are found in Livy; there is nothing improbable in them, and the story of the death of Cn. Manlius, that vain attempt to elude Fate, has quite the colouring of antiquity. If the accounts of this fight be compared with those of the battle at the lake Regillus, a marked difference will be found. The many narratives of it are most likely taken from the laudations of the Fabian family, which were a tissue of repetitions, like the panegyrical λόγοι ἐπιτάφιοι. I believe that the plebeians always refused obedience to the consul elected by the patricians. The Fabii doubted also this time whether the plebeians would obey their orders; yet when the latter were filled with ardour for the fray, their co-operation decided the battle, and the Fabii were thus reconciled to them. With this reconciliation all the relations changed. Of the chiefs of the Fabii, who are mentioned as three brothers (they may have been clansmen), one had been slain; the two others who remained at the head of their house, had their eyes opened to the fact that the oligarchs had brought the state into a wretched condition. The Veientines were beaten; but the war still lasted, and although the Latins and Hernicans had been called into the field, the Volscians spread more and more. What was therefore most requisite was union. For this reason the Fabii themselves declared that the agrarian law must be granted; and in consequence from henceforth no Fabius became patrician consul, while on the other hand, the plebeians now elected Cæso Fabius, their former enemy, to be their consul. The most frightful commotion arose; the Fabii were looked upon by their own order as traitors. When their propositions are rejected, they leave the city, three hundred and six of them, and found on the Cremera a settlement of their clan and of several thousand plebeians who had joined them. This must have been a settlement of a peculiar kind; a colony it was not, as it had arisen per secessionem: it was a political emigration; for the Fabii were at feud with their order, and therefore established for themselves an abode distinct from Rome.[95] It is therefore stated that only one single Fabius, who as a child had been left sick in Rome, had remained behind. Perizonius has sifted this matter before now with able criticism, and has shown how preposterous it is, that three hundred and six strong men should all but one have been childless. This child we again meet with a few years afterwards as already consul. The probability is this, that the number 306 is not indeed symbolical; nor did it comprehend, as Livy has it, merely warriors, nay, leaders only, but the whole of the Gens Fabia engaged in the settlement, women and children included. If we take them to have been three hundred and six men able to bear arms, we should be obliged to estimate the number of the patricians at something beyond all belief. That they had a vast number of clients is not to be doubted; and the circumstance that these emigrated with them, is a remarkable evidence of the nature of the clientship.[96]