CHAPTER XXIII.

THE THORIA LEX.

B.C. 123-111.

AFTER speaking of the death of Caius Gracchus, Appian continues thus: And this was the end of the disturbance caused by the party of the second Gracchus. Not long after a law was enacted to this effect: That the holders of the land, which was the matter in dispute, might legally sell it; for this too had been forbidden by the law of the elder Gracchus and immediately the rich began to buy from the poor, or on various pretexts forced them (to sell, or turned them out). And things thus became still worse for the poor than before, until Spurius Borius a tribune proposed a law to this effect: That there should be no more distribution of the public land, but it should be left to the possessors who should pay certain (annual) charges (vectigalia) for it to the state (Su), and that the money arising from these payments should be distributed (among the citizens). This was indeed a relief to the poor by reason of the distribution of the money, but it helped not at all towards the increase of population. Now when the law of Gracchus had once been evaded by these tricks, a most excellent law and most useful to the state, if it could have been executed, another tribune not long after abolished also the annual payments, and the people (Sñμos) were completely deprived of every thing. The consequence was that they were still more in want at the same time of citizens and soldiers, and income from land and distributions

. for about fifteen years from the time of the legislation of Gracchus there was a cessation of all suits.' This passage contains many difficulties, but the general

purport of it can be understood. The first enactment mentioned by Appian repealed that clause in the law of Tiberius Gracchus which prohibited those who received assignments of public land from selling them. The object of the clause was to secure the success of this great reform bill, to establish a number of small proprietors who should cultivate their little farms, and breed citizens and soldiers. But such forced culture is impossible. If a man cannot or will not cultivate his little farm and breed men for the use of the state, which at Rome meant breeding for the use of those who held the political power, no legislation can compel the man to do his work. To give land to a man and to deprive him of the power of sale is a great inconsistency, for the power of sale is an essential part of that dominion which we call property in land. If an owner wishes to sell, he has always sufficient reason, whether he sell from necessity or choice; and in either case, it is better that he should sell and that another should buy. If the result of this prohibitory clause being repealed was that the land was purchased only by the rich, this fact shows either that there was no class of poor cultivators able and willing to buy, or that the rich, as Appian names them, gave a better price; and that was an advantage to the seller. But he also speaks of something like forcible ejectments, or at least of such annoyance from the richer landholders as would make a poor man glad to escape from his neighbours. We may easily imagine much more than he has told us, but without adding any thing to the bare facts of the historian, we conclude that the Roman state with all its external splendour and power was at this time in a miserable condition.

This first law, says Appian, was made not long after the death of Caius Gracchus. Rudorff thinks that we may assign this law "to the tribune M. Octavius, who during his tribunate of B.c. 120 also made an alteration in the Lex Frumentaria of Caius," or the law for the distribution of corn among the Roman poor. But Rudorff's conjecture is not supported by the authorities to which he refers; and the change in the Lex Frumentaria was probably made by a tribune M. Octavius, who lived much later. There is in fact

no authority for assigning this repeal of the prohibitory clause in the law of Tiberius Gracchus to any particular tribune.

The second enactment mentioned by Appian stopped all further assignments, but it imposed again on the occupants of the public land the tenths which had been remitted by the Lex Livia. (Chap. xix.) Thus a fund was established for the use of the poor; but we do not know how it was administered, unless it was applied in execution of the Lex Frumentaria of C. Gracchus. This new piece of legislation was well adapted to keep up and to increase the number of the poor in Rome, for applicants for relief will never fail. The name of the tribune who proposed this law is Spurius Borius in all the manuscripts of Appian. The name of Spurius Borius is otherwise entirely unknown, but we know there was a tribune Spurius Thorius, who is mentioned by Cicero twice; and accordingly the early critics suggested that Borius is a mistake in Appian's text, and that the name should be Thorius. Schweighaeuser, in his edition of Appian, has introduced the alteration into the text; but he saw, as he says in his notes, that Cicero's remark on the Lex Thoria cannot be reconciled with what Appian says of the Lex Boria. The name Spurius Borius should therefore stand in Appian's text, and the true conclusion is this. The name Spurius Borius is either a genuine name or not. If it is genuine, we have no more to say. If it is not the true name, the error may be Appian's, or the error of the transcribers of his manuscripts. Now it is rather singular that we should have both a Spurius Borius and a Spurius Thorius; and we might conjecture that Appian did write Spurius Thorius. But then either Appian is mistaken about the purport of the Lex Thoria, or Cicero is mistaken, for they do not agree. There is a third possible case. Both of them may be mistaken: Appian about the purport of this second law, whatever was its name; and Cicero about the purport of the Lex Thoria. But this third hypothesis leaves us in total uncertainty. If Appian wrote neither Borius nor Thorius, he wrote something else, which has been uniformly altered by the transcribers, and made into Borius; and on this hypothesis we must be content not to know what

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Appian wrote, and we do not trouble ourselves about the conjectures of the critics.

The third law mentioned by Appian abolished the tenths and the money paid to the State for the pasture of animals. Appian does not mention the name of the tribune who proposed this law, but Cicero (Brutus, c. 36) says 'that Spurius Thorius, by a bad and mischievous law, relieved the public land from the vectigal.' This passage of Cicero is incorrectly. explained by H. Meyer, who assumes that we should read Spurius Thorius for Spurius Borius, in Appian's text, and then forces Appian and Cicero into agreement by giving to Cicero's words a meaning which they do not bear. In fact, he interprets Cicero as if he said what Appian says about the law of Spurius Borius; but a comparison of the words of both writers will show that they say different things. However, Cicero's words about the Lex Thoria do agree with Appian's statement about the enactment of the third tribune; and as Cicero and Appian are speaking about the same law, we may accept Cicero's statement of the name of the legislator, particularly as he mentions him in another passage also (De Or. ii. 70).

The last part of this extract from Appian is corrupt; and the part which is not corrupt is strangely expressed. It is literally, the consequence was that they were still more in want at the same time of citizens and soldiers, and income from land and distributions and laws.' The words 'and laws' are unintelligible, and apparently have been foisted in by a blunder, the origin of which is not very difficult to see, if a man will look at the Greek text. Musgrave accordingly proposed to omit the words, and laws.' The persons who were still more in want' are first, the whole Roman people. They were in want of citizens and soldiers, and income from the public land. But the persons who were in want of the distributions' can only be the poor. The 'distributions' here spoken of were distributions of land, as I think. The words which follow and laws,' though they stand as part of the same sentence in Appian's text, cannot be connected with the first part of the sentence. The Latin translator Gelenius saw this, and has given the meaning

thus: a judiciis quoque cessatum est ad annum ferme quintum decimum ex quo lata fuerat lex agraria.' Rudorff, by a comparison of this passage with another (Appian, Civil Wars, i. 19), has restored the Greek text in a probable manner, thus: "And those who distributed (assigned) the land were for about fifteen years from the time of the legislation of Gracchus inactive (unemployed) in suits (about the land).”

There are extant some fragments of a Roman Lex, which was cut on the rough back of a bronze tablet; the front of the tablet is smooth, and contains the Servilia Lex of Glaucia. This Lex, which is cut on the back part of the bronze, is the subject of the essay of Rudorff, the title of which is placed at the head of this chapter. (Table of Contents.) It is one of the many valuable essays on Roman Law and matters closely connected with it, which have been contributed to the Zeitschrift by Savigny, Eichhorn, Rudorff, Klenze, Puchta, and other learned German writers.

The bronze tablet, which contains on one side the Servilia, and on the other an Agrarian law, has been broken into many fragments, and the lower part, which probably is the larger part, has been lost. The fragments now exist in six pieces. Four of the pieces are in the Museo Borbonico at Naples. These are the largest and most valuable of the fragments. Two are in the Imperial Library of Vienna. The seventh piece of the tablet was in the royal collection at Fontainebleau in 1567, but it is now lost. Rudorff has given the history of these fragments at some length. Two of them, which have been numbered I. and IV., were copied by Sigonius, who saw them at Padua in the collection of Cardinal Pietro Bembo. Rudorff observes that both inscriptions appear for the first time in the Paris edition of Sigonius' work, De Antiquo Jure Italiae, 1576, lib. ii. c. 2, for the older Venetian quarto edition of 1560 does not contain them. But these two fragments of the law are printed in the Bologna edition of the De Antiquo Jure Italiae, 1574.

Sigonius found in his two fragments the names of the consuls P. Mucius and L. Calpurnius, who were the consuls of B.C. 133, the year in which Tiberius Gracchus promulgated his Agrarian Law; and he found also the names of