as the rock walls which it built, and in its continued influence more lasting even than they."

The term moenia, "tasks," retained as the name for walls, shews how they were first built, and how heavy were the direct calls and sacrifices imposed by the State.

But it is the public works of the Republic and Empire that have most interest for our subject, as it is these, if any, that would have created an equitable system of expropriation in Roman law. And here we may say, that there are circumstances in the history of Rome and Roman law which on the one hand shew us how impossible it is to believe that her great public enterprises could be checked by the will of private individuals, and on the other largely take from our surprise at so vast a system of public works, with apparently such frequent occasions therefor, never having given rise to an organized system of land expropriation.

In order to be convinced of the impossibility of Rome suffering her public works to be turned aside out of respect for private rights, we have only to look at her policy and plan in constructing the most important of them all, the great Roman highways, the railways of antiquity, which "issuing from the Forum of Rome, traversed Italy, pervaded the Provinces, and were terminated only by the frontiers of the empire." This vast system of internal communication was an essential part of her great mission of conquest and civilization. No country was considered as completely subdued till it had been rendered pervious in all its parts to the arms and authority of the conqueror.* These highways, which connected the 2000 cities of the empire with each other and with Rome, were carried in a direct line from point to point, over mountain, valley and river, and were turned aside neither by the obstacles of nature nor out of respect for the rights of private property.* "The sense of unity and common dependance on a central authority, says Merivale, was admirably maintained by the instrument of communication with Rome, which in whatever quarter the subjects of the State might cross it, always pointed with a silent finger in the direction of their invisible mistress. Far as the eye could reach, till it was lost in the remote horizon, stretched this mysterious symbol of her all-attaining influence; and where the sense failed to follow the imagination came into

* Gibbon.

play, and wafted the thoughts of the awe-stricken provincial to the gates of Rome and the praetorium of the venerable imperator. Along these channels, as he knew, the arms, the laws, and the institutions of the city streamed in ceaseless flow to every corner of the earth; they were the veins through which the life-blood of the empire circulated from its heart, making every pulse to beat with unfailing harmony and precision."

It is not difficult to see what were some of the circumstances that prevented the construction of these works from giving rise to a system of land expropriation, notwithstanding their construction in the present day would certainly do so equally with the construction of any system of railways.*

Perhaps the most important occasion for calling forth such a system of expropriation was swept away by the fact, that, both in Italy where the great highways were the work of the Republic which inaugurated them, and in the Provinces where they were chiefly the work of the Empire,† the main lines of road were carried over the lands of conquered communities.

* The Roman aqueducts were also gigantic public works, but both on account of their comparative shorter length and manner of construction, they were calculated to interfere much less with the rights of private property than the great highways. Thus the great Marcian aqueduct, built in 144 B.C., upwards of sixty miles in length, was carried underground fifty-four miles, and the rest of the distance mostly on arches. It was built by order of the Senate, a few years after the attempt to build an aqueduct stopped by Crassus, which would indicate that the power existed of carrying out such works when properly authorized. An idea of Roman public works may be had from this one aqueduct (Marcian), which cost the public treasury 180,000,000 sesterces, or £2,000,000 stg. gold, all raised and paid out in cash within three years. (Mommsen.)

It is well known that the celebrated system of Roman roads began with the great Via Appia, called regina viarum, built as far as Capua in 442 A.U., during the Samnite war, by Appius Claudius who, says Livy ix, 29, "viam munivit et aquam in urbem duxit." To him, (Appius Claudius) says Mommsen, the Roman State was indebted for its first great military road, and the Roman city for its first aqueduct. Following in Claudius' steps the Roman Senate wove round Italy that network of roads and fortresses, without which, as the history of all military states from the Archaemenides down to the creator of the road over the Simplon shews, no military hegemony can subsist." With reference to the works of the Empire in the provinces, witness the great roads built throughout Gaul by Agrippa VOL. II. No. 2.

Indeed centuries after the period of construction of the principal of these great public works, the ownership in the soil of nearly the whole Roman world was legally in the State, the inhabitants being in the eye of the law only occupants and as such paying an annual rent or tax for the use of the lands to the State as proprietor.

Gaius (ii, 7) could say in his time, time of the Antonines: "in provinciali solo dominium populi Romani est vel Cæsaris : nos autem possessionem tantum et usumfructum habere videmur."

With reference to Italy: far into the times of the Republic the extent of private landed property was small and mostly owned by the plebeians, the powerful governing aristocracy occupying by preference enormous portions of the ager publicus or public domain.

The numerous agrarian laws during the whole of the Republic shew what a vast public domain the State had at all times at its command, and a legal right to resume. These laws, indeed, in so far as they recognized and provided for indemnifying the possessors as having rights of property on tho score of improvements and long possession, were the most important laws of expropriation in Roman legislation, although they did not expropriate the soil or fonds which legally already belonged to the State.*

in the reign of Augustus; they led from Lugdunum (Lyon): 1. to the Rhine; 2. to the Somme and the Channel; 3. across the Cevennes to the ocean; 4. to Massilia and Narbo; also the great aqueduct, Pont du Gard, yet existing ar Nimes. Vide Merivale iv, p. 80.

The Republic, too, built great highways in the earlier acquired Provinces, as the great Via Egnatia across Macedonia, spoken of by Polybius (34, 12, 3); and the Via Domitia, from the Rhone to the Pyrenees, to connect with Spain, which was the primary object in conquering southern Gaul and founding the early Roman province of Narbo. A strip of from 1 to 14 miles wide along the coast was handed over to the Massiliots to keep the road in repair. Vide 3 Mommsen, 403.

Thus as late as 133-115 B.C., uuder the agrarian laws of the Gracchi alone, about 80,000 allotments of 30 jugera each were made of the public domain in Italy, equal to 2,400,000 Roman acres. These laws made provision for indemnifying the possessors; and the fact that some of the public lands retaken by the State had been in herit able private possession 300 years, shews what a permanent legal hold the State kept on its lands, and how rigidly the principle of "no prescription against the State" was carried out. Vide 3 Mommsen, 95.

To sum up here some of the reasons which we think prevented the want of a system of expropriation being felt and springing up in Roman law: The monarchy with its walls, and perhaps also as constructor of the great Cloaca, provided for the fortifications. and sanitary requirements of the city and relieved the Republic for a long time from the construction of public works on this score in the capital: that the Republic, intent upon war, constructed, during its first period, few public works of importance beyond great military roads and fortresses which were constructed over conquered territory; and later, public works were largely constructed by powerful and wealthy public and private individuals, acting from different motives, without expropriation or interference by the State.

That the quantity of private landed property, even in Italy, was long small, and the domain, ager publicus, of vast extent; while in the Provinces the whole soil, with slight exceptions, belonged to the State as private property.

For these reasons, among others, the construction of the great public works of the Romans interfered much less than might be supposed with the rights of private ownership in lands, and infinitely less than the construction of similar works would do in any civilized country of the present day.

But notwithstanding these facts, and that the other great public structures, besides highways, such as circuses, baths, temples, aqueducts, and other works of use or embellishment, of the later Republic and Empire, were largely constructed by private liberality, or by politicians and successful leaders seeking popular favor, or by the emperors, who had large resources, public and private, at their command, both in lands and money, and whose wishes were not likely to be thwarted; notwithstanding all this in favour of the absence of a system of expropriation, there must have been, and were, many cases, particularly under the Empire, where private property had to be taken in invitum by the State for purposes of public utility; and we do find in Roman law certain provisions made for those cases.

It is not, however, during the Republic nor early Empire, but only in the later Empire, after separation of East and West, that we find any provisions of a general nature on the subject. One title De Operibus Publicis, of the Theodosian Code, A.d. 438, with some fragments of the Corpus Juris Civilis, comprehend substantially all the passages that we possess in Roman law on

expropriation, and it is in consequence this later Roman law that has been the subject of examination by Serringy and by most others who have treated of the subject.*

These passages, particularly from the Digest, shew that the principle of expropriation was applied at times to moveables and incorporeal things as well as immoveables. Thus, for instance, there were a great many cases in which the master might be forcibly deprived of his slaves for an indemnity or price; as when the slave was required to be examined as a witness under the usual torture (quæstio); where the slave was cruelly treated as in the wellknown cases mentioned in the Institutes: where the slave received freedom from the State as a reward for making known manufacturers of spurious coin § or deserters.

Art. 407 of our Code, like Art. 545 Code Napoleon, says: "No one can be compelled to give up his property except for public utility and in consideration of a just indemity previously paid." This Art. clearly recognizes the principle of expropriation as applicable to moveables as well as immoveables, but as neither our law nor the law of France contains any provisions for carrying this principle into effect as regards moveables—a thing seldom or never required-the Roman law in this one respect went further in practice than does even our law or the French law.

Still, much as with us, it was chiefly to immoveables that expropriation was applied in Roman law. The principal provisions relative to immoveables, nearly all of which, indeed, relate to cases at Constantinople, are contained in L. 50, L. 51, L. 53 of the Theodosian Code Title De Operibus Publicis, and in the VII. Novel of Justinian, chapter 2.

L. 50, Th. Code, relates to the construction of the Portico of

* We find before this certain exceptional cases. Vide Bauny de Récy, Exp. L. 12, Dig.: "De Religiosis et Sumpt, somewhat like Art. 540 of our Code, said: "Si quis sepulchrum habeat, viam autem ad sepulchrum non habeat et a vicino ire prohibeatur, imperator Antoninus cum patre rescripsit iter ad sepulchrum peti precario et concedi solere: ut quotiens non debetur impetretur ab eo qui fundum adjunctum habeat," &c.

†D. 48, 5, 27. D. 48, 18, 6 and 13.

I. 1, 8, 2: "praecepit, ut, si intolerabilis videatnr saevitia dominorum, cogantur servos suos bonis conditionibus vendere ut pretium dominis daretur."

§ C. 7, 13, 2 and 4.