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VI.

REMARKS ON PROFESSOR LONG'S

PAPER ON THE

LICINIAN LAW DE MODO AGRI1.

THE following remarks on the essay of Professor Long have been suggested to me by the desire of not appearing before the scholars of England as a person who, for his part, would weaken the good report of classical studies in Germany, by a superficial and hasty treatment of subjects connected with them. Should my remarks appear fit for a modest place in the Classical Museum, I should prefer this as a more amicable mode of defending myself, to inserting them in a German periodical.

In my attempt to defend my statements respecting the lex Licinia de modo agri against the criticism of Professor Long (in the Class. Mus. Vol. 11. p. 256, &c.), I shall separate, as far as I can, the criticism of my mode of treating the subject, from that of my views themselves. As far as the former is concerned, Professor Long believes that he has found contradictions and absurdities in my account. It would not, perhaps, be modest to draw attention to the fact that such a charge-unless, indeed, one has to do with a person known to have no talent at all— frequently shares the fate of a stone which rebounds against the head of him who inconsiderately flings it at another. But I believe I am justified in expressing my surprise at finding that my expressions have been essentially altered in order to render them susceptible of such a charge, a stratagem, which in German journals is more frequent than I could wish for the honour of my country, but which I thought would not be resorted to in England, except in political party strife, in which unfortunately the object sanctions the means.

I am said to have asserted, that the plebeians, after the Gallic war, had been compelled by their necessities to sell the chief part of their land, which had got into the hands of the rich, who had suffered least by the recent events, and upon this Professor Long makes the observation: "when a man says, 'the

'Translated from the German MS. by Dr. L. Schmitz.

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plebeians' he speaks of them without any distinction of rich or poor; and so we might fairly conclude that all the plebeians are meant, although he afterwards states, that there were some rich persons among them. But as he says that the land had got into the hands of the 'rich,' we presume that by the expression plebeians' he means the poorer plebeians.' What I really did say is literally, this (Cursus der Institut. 1. p. 202): "A great portion of the plebeians had fallen into poverty and debts in consequence of the taking of the city by the Gauls." "But two measures were required to afford relief to the impoverished." "Further, many plebeians had been obliged to sell the greater part of their landed property, either in order to be able to pay their debts, or to obtain money without borrowing. Hence very extensive landed property had come into the hands of the rich, especially the patricians, who had suffered the least." Professor Long, I trust, will admit himself that his observation does not apply to my words.

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I am further stated to have said: "that one object of the law was in the favour of those who were in a condition to recover their landed property by purchase." The absurdity of this view does not escape my opponent: he informs me very circumstantially, that perhaps the present owner of the land sold by a plebeian did not possess more than 500 jugera, and was consequently not obliged to sell any. He might have added, even if he possessed more, he might have sold as surplus any other pieces of his land, and in this case, too, the unfortunate plebeian could have done nothing. I, for my part, have nothing to say on this point; except that the absurdity is not mine, but belongs exclusively to my critic, and that I never dreamt of ascribing to Licinius the romantic idea of a recovery of the identical pieces of land by purchase. My words are: "in favour of those who were in a condition again to acquire landed property by purchase." I should, however, observe, that if Professor Long found my expression ambiguous, it would, undoubtedly, have been a more dignified course to adopt the rational interpretation, or at least to acknowledge its possibility rather than to give way to the temptation of writing a piquant refutation.

But he finds other inextricable contradictions in my supposition. "How had the plebeians (who twenty or thirty years before had been obliged by necessity to sell their lands), become

in such a condition," to recover their landed property by purchase? Were they perhaps those who even now were not able to pay their debts? "Further, on what terms were the poor to repurchase their land? how much were they to give for it?" As far as the last point is concerned it requires no extraordinary knowledge of political economy, to see that a law, which compelled a large number of landowners at once. to throw a considerable quantity of land into the market, and at the same time excluded the richest landowners from becoming competitors in the purchase of it, had no occasion to assist the purchasers by reduction of prices and the like, and that, on the contrary, under such circumstances, there was no fear of the sellers demanding either too high prices, or obstinately requiring the purchasers to pay the whole sum at once and in ready money. It is Professor Long's own fault, if he does not think of a middle class of plebeians, standing between those totally ruined by debts and the richest of their order, who already possessed considerable landed property; and the law respecting the quantity of land, under the circumstances of the case, was intended to benefit that middle class. Niebuhr would hardly have defended in this way his view respecting the Licinian law, as being an agrarian law, and consequently referring exclusively to the ager publicus. I may add that Appian, who is otherwise inclined to describe the Licinian law as much like the Sempronian as possible, expressly recognizes this difference between them, that according to the latter the surplus was distributed by triumvirs, while the object of the former was, that the surplus should be sold in small lots to the poor. Mr. Long's censure of my supposition would have been applicable in a far higher degree to Appian, especially if we suppose with the Professor, that the Licinian law had to do only with public land, which the state, at all events, might have withdrawn from the possessor, and in reference to which it might have said to the poor (toïs névnoi): Do you want landed property? well then go and purchase it?

But I have said enough, perhaps already too much, of this part of the criticism on me, and I am anxious to come to the subject itself.

In that part of my history of the Roman law, which has induced Professor Long to write his essay in the Classical Museum, it was my object to represent the substance of the

Licinian law de modo agri in its historical connexion with the development of the Roman constitution.

According to the opinion prevalent before the time of Niebuhr, this law referred to landed property, and this view was coupled with the gross mistake, that the agrarian laws too applied to landed property. Niebuhr, in removing this mistake, went so far as to take the Licinian law also for an agrarian law, and to limit its application to public land exclusively. In both cases the question had been treated as if every law respecting the ager, and consequently that of Licinius also, must have been an agrarian law in that particular sense in which the classical writers commonly use this term. Hence the earlier critics believed that agrarian laws were laws respecting landed property, because the Licinian law was of this nature; and Niebuhr believed that the latter affected public land, because agrarian laws referred to public land.

Huschke came forward against this confusion of the two ideas, and he shewed the difference between a lex de modo agri and a lex agraria. His view, in which the earlier one is divested of its errors, appeared to me, although up to that time I had adhered to Niebuhr's opinion, to be in all essential points perfectly in accordance with the ancient authorities, and consequently I did not hesitate to abandon the view of Niebuhr.

When, in my work above mentioned, I came to this point, I thought it proper to refer to Huschke's treatise, on account of the positive evidence by which his view is supported, and, with the exception of a few modifications which I thought necessary, I confined myself to some additional support which his view receives from the political junctures of the time, a support which I did not think superfluous in a question controverted by means of the ancient authorities, and in an age which has given up the belief in a direct inspiration of the authors whom we reverence as classics.

The extent to which I thus made use of the labours of others, has led Professor Long to charge me with not having supported by any passage my view, that the Licinian law referred to private property, while he himself refused to look into Huschke's treatise referred to by me, although it was in his possession at the time when his criticism was printing. I shall now shew, that my view has not to fear this field of inquiry.

There may be three opinions respecting the Licinian law:

1, that it affected merely the ager publicus; 2, that it affected both the ager publicus and privatus; and 3, that it affected the ager privatus exclusively. The first, which is the opinion of Niebuhr, must be given up, if either the second or the third is

correct.

Among the numerous passages of the Roman writers which mention the object of the Licinian law, there is not one which says that the ager PUBLICUS was the subject of the law. This argument might be deemed precarious, with regard to those who speak in general only of 500 jugera without any other addition, but it receives weight from the number of those who say jugera agri. This is the case, especially with Livy (see the passages quoted by Huschke; vi. 35, 36, 37, 40, 41; vii. 16; x. 13; xxxiv. 4), and with Livy this circumstance, as Huschke has observed, is of great importance, since when Livy speaks of agrarian laws, he is in the habit of not omitting to characterize the ager as publicus (e. g. 11. 61; 1v. 36, 51, 53, 57; vi. 5), whereas it is not customary to add the word privatus, when private property is spoken of, unless the addition is required by particular reasons.

We must have recourse to Greek writers in order to obtain the appearance of a testimony for the limitation of the Licinian law to the ager publicus. I admit to my opponent, that he has used the passages of Plutarch (Tib. Gracch. 8) and Appian (Bell. Civ. 1.7—9), as skilfully as they can be used. However, it is not their fault but his own, if his attempt has nevertheless remained unsuccessful.

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Both authors speak in the first place of the Sempronian agrarian law; in order to explain this law, they go back to earlier times, and are thus led by the way to speak of the Licinian law, which Tib. Gracchus followed, as to the amount of land; it was not their object distinctly to state the difference between the two laws, even if they knew it both laws agreed in their objects to give landed property to the poor, and this was sufficient for those two authors. Even their deficient conception of the means by which the two laws were intended to attain their end, that is, their mistake of believing that where the object is the same the means also must be the same, should not, perhaps, under these circumstances, be made too heavy a charge against them.

We must above all things distinguish between the bare sub

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