Mommsen’s theory

From: Origin of Property in Land
by Fustel de Coulanges

III. Mommsen’s theory as to community of land amongst the Romans.

One never for a moment expected to find agrarian communism amongst the Romans; in the first place because Rome was one of the youngest of the cities of the ancient world, and, at the date of its birth, private property had long held sway in Italy; and, in the second place, because it is well known that the Romans had a very precise and very firm conception of the right of private property, and did as much as any other ancient people to define and protect it. And yet Professor Mommsen states that with the Romans “land was originally held in common;” that “community in land is closely bound up with the constitution of the city;” that “it was only in later times that the land was divided amongst the citizens as private property.”[1] In support of this assertion, the learned and able historian gives three references—to Cicero, Dionysius of Halicarnassus, and Plutarch. But on examining these three references it seems to me that none of them says exactly what Professor Mommsen makes them say.

The first is from Cicero in the De Republica, II., 14. Numa agros guos hello Romulus ceperat divisit viritim civihus. The meaning of this passage is that the lands which had been conquered by Romulus in his wars with the neighbouring cities had not been divided by him amongst the citizens. But it does not prove, as we shall presently see, that the small Roman territory occupied prior to these conquests was not divided when the city was founded. The quotation from Cicero applies to a certain area of land; it does not apply to all land. It does not imply that no division had taken place before this time; and Cicero does not say a single word which can refer to a period of community.

The second reference is to Dionysius of Halicarnassus, II., 74; and the following is a literal translation: “Numa enacted laws concerning the boundaries of estates; he laid down that each man should surround his land with a boundary and set up landmarks of stone; he dedicated these landmarks to the god Terminus, and ordained that sacrifices should be offered up to him every year; he appointed the festival of the Terminalia.” That the second king of Rome drew up regulations for the worship of boundaries cannot be regarded as distinctly proving that before his time there were no boundaries; and certainly it is not clear evidence that till then private property did not exist. The historian does not say that in the preceding generation the Romans lived under a system of common ownership of land. On the contrary, he says a little earlier that the founder of the city did divide the territory as other founders were wont to do. In so doing he had paid attention to the social divisions already existing; and as the people were divided into thirty curiae, he apportioned the territory into thirty lots in such a manner that the members of each curia might remain together. Dionysius adds that the founder, when dividing the land, reserved a part to form the ager publicus, i.e., the property of the State. This piece of information proves beyond doubt that in the mind of the historian the whole territory was not ager publicus, as M. Mommsen thinks. Dionysius of Halicarnassus indicates distinctly that the distinction between ager publicus and ager privatus dates from the earliest days of the Roman city.

The third authority quoted is Plutarch, Life of Numa, 16: “The Roman city had in the beginning only a small territory; Romulus gained for it by conquest an additional territory larger than its old one; and the whole of this was divided by Numa amongst the poor citizens.” This passage, like the one from Cicero, states that a division was effected by the second king; but at the same time it draws a distinction between the two territories; and it is not possible to draw from it the conclusion that the district first occupied had not been already divided.

Thus not one of three passages quoted by M. Mommsen seems to me to have the meaning he attributes to it. Not one of the three implies that the Romans held their land in common even for a single veneration. Other authorities also, which must not be passed over, expressly tell us of this earlier partition, the recollection of which was preserved, as was that of everything else connected with the founding of the city. Besides Dionysius of Halicarnassus whom we have already referred to (II. 7), Varro, who was as learned as a man could well be at that time, declares that Romulus divided the territory into hereditary portions, each consisting of but two jugera[2] (about an acre and a quarter). The elder Pliny, Nonius and Festus give us the same information.[3] But this first partition, which is contemporaneous with the very foundation of the city, did not follow upon a period of non-division. No Roman historian makes any such statement as that the land remained for a period undivided.

M Mommsen tries to dispose of these statements, and argues as follows: Two jugera are too little to support a family; therefore we cannot consider that this was a real partition of the territory; and it necessarily follows that the families must have lived under some kind of communistic system, with a common use of the public lands. An ingenious process of reasoning, but nothing more, mere guess-work. The question is not as M. Mommsen thinks, whether two jugera are enough for the support of a family; but rather whether the founder, who had only a very small extent of territory at his disposal, with a population already numerous could grant more. The lots were too small, as it would appear, because the territory also was too small; but we cannot deduce from this, as M. Mommsen does, that the Romans followed some system of communism. The insufficiency of the land, besides, gives a reason for the conquests which were soon afterwards effected under Romulus.

In conclusion, it appears to me exceedingly rash to maintain that the Romans had at first a system of common ownership of land. Such a statement is not supported by any ancient authority. On the contrary, the early writers describe a partition of land which takes place at the very time when the city is founded; and the land thus divided becomes complete and hereditary property. Some years later the city conquers fresh territory; and again, with but little delay, it is divided into private property. This is all that we are told.

We are, however, able to gather that these two successive partitions were not in every respect alike. The first related only to the ager Romanus, i.e., to that part of the territory which was in primitive times attached to the Urbs; the second related to conquered territory. In the first, the ground was distributed amongst the curios, each curia then distributing it amongst its gentes, whence it came about that these lots for a long time retained the name of the several Roman gentes; in the second partition, which followed the first but did not annul it, the land was divided according to heads, viritim. This innovation will be seen to be of deep importance by any one who is acquainted with toe ideas of the ancients and with ancient law. At the time of the first division, property still belonged to the family; at the second, it belonged to the individual. Thus, then, the two kinds of proprietary right that the ancient world successively recognised are seen, one after the other, with an interval of but forty years between. The Roman nation was one of the first to substitute individual for familv nroperty. They made use of bequest and sale from an early date. Roman law did indeed retain some traces of the early rights of the family; but what really characterises it is that it brought about the triumph of the system of individual ownership.

[1] Mommsen, Roman History, Engl, trans., vol. i., p. 194. This theory has been copied and reproduced word for word, without verification, by M. Viollet and M. de Laveleye.

[2] Varro, De re rustica, I. 10 : “Bina jugera, quod a Romulo primum divisa viritim, quae heredem sequerentur.”

[3] Pliny, XVIII. 2, 7 : “Romulus in primis instituit. … Bina tunc jugera populo Romano satis erant nullique majorem modum attribuit.” Nonius, edit. Quicherat, p. 61. Festus, v. centuriatus ager.