133 



AGRARIAN LAW. 



AGREEMENT. 



131 





were marked out according to the strict principles of Roman limitation, 

 ami placed under the religious sanction of the augury. But a large 

 purtion of the territory which fell into the hands of the conquerors in 

 the issue of a successful war must often have been in a state of utter 

 'iun, for devastation by fire and sword was a constant and 

 leading feature in ancient warfare ; and in a country where the olive 

 and the vine form an important branch of agriculture, such desolation 

 was not easily repaired. Thus large districts were unfit for distribution 

 among the plebeians, or for sale by the qiuestors. Moreover, much of 

 the mountain land, and even of the unhealthy plains in Italy, was, as 

 i.ipted solely for pasturage, and therefore equally unfit for 

 partition, though far superior in immediate value. The disposition 

 of this unappropriated land, which constituted the permanent public 

 domain, led to a singular mode of occupation. An edict was issued, 

 giving authority, most probably to the patricians alone, to cultivate 

 nid.-, but with the full understanding that the state reserved to 

 itself the ownership, and might at any time resume possession, a right 

 which was from time to time exercised. Yet, though the occupants had 

 no title whatever as against the state, they appear to have been pro- 

 tected against individuals by the interdicts of the prsetor, and a branch 

 of law entitled eatuta pommtmtm. Under this protection these lands 

 often passed from father to son by a species of permitted inheritance, 

 or as dowries to daughters, or were even transferred to other citizens 

 by purchase ; and in this way even plebeians, it would appear, might 

 ' i to the occupation of them. But, no matter through how many 

 hands the lauds might pass, the tenure to the last occupier was as 

 precarious aa to the tir.st ; mid, of course, this was always taken into 

 account in estimating the value. On the other hand, the occupier was 

 Mil.jn-t to certain restrictions and payments. He could not legally 

 hold, at least after the Licinian law, more than 500 jugers (about 

 333 acres) of this public land ; on the public pastures he wa* limited to 

 100 head of great, and 600 of small cattle ; and he was bound to 

 employ a fixed number of freemen. Some of these restrictions indeed 

 did not always exist, but it seems highly improbable that some regu- 

 lations of the kind should not have existed from the very beginning, if 

 only to protect one patrician from another. But whatever doubt there 

 may be on this subject, the state was always entitled to the payment 

 of a tenth upon all grain, and a fifth on the olives and the wine, 

 besides gome charge, we know not how determined, for the use of the 

 common p^t.mv hind. The technical terms used with regard to these 

 possessions were as follows : the lauds themselves were called .</<'< 

 ijri'i>i,,it'i. a. iH'rii/nitorii, n. pnttem, a. concetti, a. arcifiualea, or generally 

 ponationet. The holder or puei/r was said to have the utta of them ; 

 and the payment he made to the state was the fructiu or nr/ii/nl. 

 Instead of collecting this branch of the revenue directly, it was the 

 practice to farm it out, which was expressed by selling or letting the 

 jut recliijn/it nrfrurtus ; and in the same sense they used the phrase 

 /''/r, or even more briefly, though somewhat 

 ambiguously, <tyrnm locare. 



It must be confessed, indeed, that in this view of the first occupancy 

 of the public domain, there is still something to be cleared up ; for 

 a mere edict, such as we have spoken of, without qualification or 

 restriction, would have been little better than an invitation to a general 

 scramble. But it is established inoontrovertibly that the possession 

 niply permissive. If the original occupancy was founded in 

 collusion, the case against the patricians will only be the stronger. 



In the various usurpations of the patrician body the restrictions 

 enumerated above were little attended to. The vectigal wa rarely 

 lid. While the plebeian was serving in the army abroad, the portion 

 of the public domain jtoseessed by him and this could only be through 

 purchase was violently or fraudulently seized by a powerful neigh- 

 bour. Large districts were monopolised by single holders. It was by 

 them found more profitable to cultivate the land by slaves than by 

 n, who were always liable and often called upon to perform 

 military errice. Those who held the chief power in the government 

 ' "ii-piii*l to deny the title of the state to resume their possessions ; 

 e-n when new conquests added to the domain, the most desperate 

 were made to resist all further assignments of land to the 

 plebeian*, that is, to the very veterans who had effected the con- 

 -. To redress these grievances, or rather to moderate them, 

 agrarian laws were from time to time brought forward ; but, we repeat, 

 them laws never interfered with private property. The wealthy might 

 hold land really their own to any amount. The cole object which the 



men hod went to check usurpations of the public domain. 



We cannot trace the subject historically through the whole existence 



of the republic, but a few remarks may still be useful. If we look at 



Hie t.irth, the station, the conduct, and the character of the dis- 



lied men whose names are connected with the promulgation of 



agrarian lawa, we shall find little reason for considering them as 



demagogues. Spurius Cassius indeed lived in a time when we can 



place little reliance upon the truth of Roman history ; but he was 



i . he had thrice been consul, and had thrice triumphed ; 



and though he was eventually tried and executed for treason, the trial 



took place, not l*fore a plebeian court, as is generally stated, but, as 



hr has established, in* the ' Comitia Curiata,' where the patricians 



Ives, whose usurpation* he had contended against, were at once 



users and his judges. For understanding the true character of 



Licinius Btolo, and the wisdom and justice of his legislation, we will 



only refer to the first chapter of Niebuhr's third volume. In the time 

 of the Gracchi, it may be thought by many that injustice and tyranny 

 hod obtained a title by prescription ; but though there may be a 

 question about the policy of the reforms they were endeavouring to 

 introduce, no candid reader of Roman history can doubt the purity of 

 their intentions, or the baseness of the majority among those who 

 resisted them by revolution and assassination. Except the presumed 

 guilt of supporting these agrarian laws, not even their enemies could 

 find a blot in the characters of the two sons of the virtuous Cornelia. 

 Velleius was no friend to democrats, but he says, speaking of the elder 

 Gracchus, Vir aHoqui i-ita Innocentigtimiu, inyenio jtorentiss-imus, pro- 

 posito saHCtiwimus, tantit doiiquc adornatut rirtutlbut, quantae perfecta 

 et natum el induslria mortal'a conditio recipit. ("A man in other 

 respect (that is, except in his opposition to the usurpations of the 

 patricians) as to his life most blameless, in ability most distinguished, 

 in principle most upright, in fine adorned with every virtue in as high 

 a degree as man can attain to, when the best gifts of nature are 

 improved by discipline.") At the same time his opponent Octavius, 

 and his murderer the Pontifex Maximus, Scipio Nasica, were actually 

 offenders under the very law which Tiberius was endeavouring to 

 enforce. On the other hand, the consul Opimius, who headed hia 

 party in the premeditated massacre of the younger Gracchus and 

 three thousand of his defenceless countrymen, and then erected a 

 temple to Concord, was afterwards convicted of sacrificing the 

 interests of his country for the gold of Jugurtha. For a full 

 examination of the agrarian laws of Rome, see Niebuhr's ' History,' 

 translation by Hare and Thirl wall, vol. ii. pp. 129 173; and among 

 the ancient writers, Appian's 'Civil Wars,' book i. c. 7 27; Plu- 

 tarch's ' Lives of the Gracchi ; ' Dionysius and Livy ; Cicero's speech 

 against Rullus, &c. 



AGREEMENT, a mutual bargain, contract, or covenant. In its 

 most extended sense, the word comprehends a large proportion of the 

 transactions of civilised man in the mutual intercourse of society, and 

 may even be said to form the basis of society itself. In a more limited 

 and technical sense, an agreement gives rise to those obligations which 

 it is the object of the law to enforce. In the latter sense, agreements 

 are with more propriety termed contracts. All contracts are agree- 

 ments, but all agreements are not contracts. 



When the word agreement is used in its technical sense ill the 

 English law, it signifies a " mutual contract, on consideration, between 

 two or more parties ; " and the essentials of such an agreement are few 

 and simple. 



1. Assent is of the essence of an agreement. The parties to a con- 

 tract must be in a situation to testify their free assent to it. Thus 

 lunatics, infants, and married women are incapable of binding them- 

 selves except in some few transactions of necessity. In the purchase 

 of those articles which conventional usage has rendered necessary (and 

 which the law therefore terms " necessaries"), the contracts of the two 

 f ornier classes are obligatory on them ; or, in the case of a married 

 woman, on her husband. In the same way, fraud, intimidation, or 

 undue advantage taken by a party to secure a benefit by an agreement, 

 will discharge him who, from ignorance or the operation of external 

 force, has apparently assented to it. 



2. The subject of agreement must not be tainted with illegality. It 

 would be repugnant to common sense that the law should enforce 

 performance of any act which it had expressly forbidden, or which 

 contravened its general policy. 



3. An agreement, to secure the aid of the law in carrying it into effect, 

 must have certain qualjties-niutually beneficial to the parties, or must 

 be entered into with certain solemnities. Courts of justice cannot be 

 called upon to give effect to every idle or Inconsiderate promise. An 

 agreement must either be contracted by a formal instrument in writing, 

 sealed by the party who has bound himself by it, which is technically 

 called a deed, and the contract is then a specialty contract ; or if con- 

 tracted in a less formal manner, by -word or otherwise, it must appear 

 that the parties derive from it reciprocal benefit. This is the meaning 

 of lawyers when they affirm that a parole agreement (that is, an agree- 

 ment not contained in a deed) cannot be legally enforced, unless there 

 be a sufficient consideration to support it. Thus A cannot found legal 

 proceedings against B, in respect of a promise made by B to A, unless 

 by the original agreement A was either to confer some reciprocal 

 advantage upon B, or was to put himself to some specific disadvantage 

 at B's request. Upon this principle it is that, by law, a promise to 

 make ,1 voluntary gift can never be enforced. An agreement, thus 

 defective for want of consideration, is called a 'nudum pactum'a 

 phrase borrowed from the Roman law, from which also is derived the 

 maxim ' ex nudo facto nun oritur actio.' It must be added that the 

 ' nudum pactum' of the civil law differs materially from oxir simple 

 contracts, which are so called when without consideration. 



4. The /<> of agreements has in some cases been regulated by law. 

 The most remarkable instance is that introduced by the Statute of 

 Frauds, in the reign of Charles II., by which among other provisions, 

 it is enacted that contracts in certain cases shall not be available, unless 

 there be some memorandum or note of them in writing, duly signed by 

 the parties to be charged, or their agents. [FRAUDS, STATUTE OF.] 



The rules respecting the construction of agreements; the varioi 

 modes by which parties maybe released from the performance of them; 

 and the circumstances under which they may excuse or justify nou- 



