allotment of the first distribution of land?

Upon this topic the ancient authorities are blind and confusing to such an extent as to be wholly inadequate for the solution of the difficulty. Among the more recent authorities, two opposing systems have been sustained, the one represented by Montesquieu, and the other by Niebuhr.

(1) According to Montesquieu, the kings of Rome divided the land into perfectly equal lots for all the citizens and the title of the law of the Twelve Tables relative to successions was for no other object than to establish this ancient equality of the division of lands.[19]

(2) Niebuhr,[20] on the contrary, claimed that territorial property was primitively the attribute of the patriciate and everyone who was not a member of this noble race was incapable of possessing any part of the territory. From this theory the author deduced numerous consequences which are important both to law and history.

Neither of these systems is free from errors. Montesquieu seems to have made no difference between patrician and plebeian in using the term citizen, while it is no longer disputed that the plebeian was not a burgess and consequently had no civic rights save those granted to him by the ruling class. His idea of goods must have, at least, become chimerical at a very early date, as this equality was so little suspected by the ancients that Plutarch,[21] after having spoken of the efforts of Lycurgus to overturn the inequality of wealth among the Spartans, accuses Numa of having neglected a necessity so important. It is moreover difficult to see how Montesquieu could think that testamentary disposition tended to maintain equality when the privilege was accorded to every citizen of disposing of his entire patrimony by will even to the prejudice of his children.[22] Again, the law of debts was hardly favorable[23] to equality.

Niebuhr clearly[24] denied the existence of the plebs until Ancus incorporated the Latins and bestowed upon them peculiar privileges thus forming a new and third class distinct from both patricians and clients. Had Niebuhr succeeded in establishing this view, the right to landed property would appear to be wholly vested in the patricians, for a client, from the very nature of his position, could hold nothing independent of his master. But this theory has fallen to the ground and no writer of the present day pretends to uphold it. The plebeians existed from the very first and some of them held land in full private ownership very little different from the quiritarian ownership of the patricians. Cicero, who in his Republic[25] has occupied himself with the ancient constitution of Rome and has spoken in detail of the division of the lands, always speaks of the distribution among the citizens without regard to quality of patrician or plebeian, divisit viritim civibus. He has nowhere written that territorial riches were the exclusive appanage of the patriciate. It must be confessed, however, that it is doubtful whether he intended to embrace the plebeians in his civibus. For more than two centuries before the time of Cicero the plebeians had enjoyed the full rights of Roman citizenship, but for more than that length of time property had been concentrated in the hands of the aristocracy. This result was the consequence of the Roman constitution[26] and the establishment of a populous city in the midst of a narrow surrounding country. Roman policy had never been conducive to this concentration, and it will hereafter appear that the nobility who had the chief direction and administration of public affairs had little by little usurped the property which formed the domain of the state, i.e. Ager Publicus, and swallowed up the revenues due the treasury.

• [Footnote 1: Cato, De Re Rustica, I, lines 3-8. "Majores nostri ... virum bonum cum laudabant, ita laudabant, bonum agricolam bonumque colonum. Amplissime laudari existimabatur, qui ita laudabatur."]
• [Footnote 2: Muirhead, Roman Law, 36 et seq.]
• [Footnote 3: Varro, De Lingua Latina, V, 143.]
• [Footnote 4: Frag, to Digest, 287 and 147 of Title 16, Bk. 50 with notes of Schultung and Small.]
• [Footnote 5: Plutarch's Romulus, § 19.]
• [Footnote 6: Mommsen, History of Rome, l, 194.]
• [Footnote 7: Sismondi, Etudes sur l'econ. polit., 1, 2, § 1.]
• [Footnote 8: Pseudo Fabius Pictor, Bk. I, p. 54; Plut., Numa, 16; Festus V° Pectustum Palati, p. 198 and 566, Lindemann.]
• [Footnote 9: Arnold, Roman History, I, ch. 3, par. 4.]
• [Footnote 10: Mommsen, I, 75.]
• [Footnote 11: Strabo, Bk. 5, 253.]
• [Footnote 12: Strabo, Bk. 5, ch. 3, § 2.]
• [Footnote 13: Arnold, I, ch. 3.]
• [Footnote 14: Dionysius, II, 55; V, 33, 36; III, 49-50; Livy, I, 23-36.]
• [Footnote 15: Dionysius, IV, 13.]
• [Footnote 16: Varro, De Lingua Latina, V, 33.]
• [Footnote 17: Sigonius, De Antiq. Juris Civ. Rom., Bk. I, ch. 2.]
• [Footnote 18: Hume's Hist, of Eng., I, ch. 4: IV, ch. 61.]
• [Footnote 19: Esprit des lois, Liv. 27, c. 1.]
• [Footnote 20: Roman Hist., II, 164; III, 175 and 211.]
• [Footnote 21: Lycurgus and Numa, II; Cicero, De Repub., II, 9.]
• [Footnote 22: Muirhead, Roman Law, 46 and note—"uti legasset suae rei ita jus esto."]
• [Footnote 23: Muirhead, 92-96.]
• [Footnote 24: Niebuhr, I.]
• [Footnote 25: Momm., I, 126; Ihne, I; Nitzsch, Geschichte der römischen Republik, 52; Lange, Römische Geschichte, I, 18.]
• [Footnote 26: Dureau de la Malle, Mém. sur les pop. de l'Italie, 500 et seq.]

SEC. 2.—QUIRITARIAN OWNERSHIP.

Citizenship was the first requisite to the right of property in Roman territory. This rule, although invariable and inherent in the Roman state, bent under the influence of international politics or the philosophy of law, yet its severity affords us a notable characteristic of the law of ancient Rome. Cicero and Gaius have preserved to us an important monument of this law in a fragment of the Twelve Tables which proclaims the solemn principle, adversus hostem aeterna auctoritas esto.[1] Hostis in the old Latin language was synonymous with stranger, perigrinus[2] This Roman name was moreover applied to a person who had forfeited the protection of the law by reason of a criminal condemnation, and who was therefore designated peregrinus.[3]

Auctoritas also had in old Latin a different signification from what it has in later Latin. It expressed the idea of the right to claim and defend in equity. It was very nearly equivalent to the right of property.[4] The sense of the Roman law was, then, that the peregrinus could not bar or proceed against a Roman, a disposition somewhat similar to the old law of England.[5] And as it was necessary to be a citizen in order to acquire by the civil and solemn means which dominated the law of property in Rome, it followed that the peregrini were excluded from all right to property in land by these laws. This exclusive legislation for a long time governed Europe and did not disappear even from the Code Napoleon of 1819.[6]

We have a forcible example of the severity of the old Roman law in this regard in the text of Gaius,—Aut enim ex jure quiritium unusquisque dominus erat, aut non intelligebatur dominus.[7]

Dominium was therefore inseparable from Jus