[58] Livy has been cited; but if those who have done so had first read him, they would have seen that every time that he wishes to speak of public land, he says _ager publicus_ and not _ager_ by itself. ii. 41: agrum publicum possideri a privatis criminabatur. ii. 61: Possessores agri publici. iv. 36: agris publicis. iv. 51: possesso per injuriam agro publico. iv. 53: possessione agri publici cederent. vi. 5: in possessione agri publici grassabantur, etc. That it sometimes happens that in a passage where he has written _ager publicus_, he afterwards writes _ager_ without the adjective, is natural enough. If he speaks in one place of _triumvirum agro dando_ or _de agris dividendis plebi_, he has no need to add the adjective which is obviously understood. In chapter xxxv. of book vi. he speaks of the _lex Licinia_ “_de modo agrorum_,” _i.e._, as to the maximum size of rural properties. It has been conjectured that he made a mistake, and that he meant to speak of the _ager publicus_; but this is very doubtful. Varro, _de re rustica_ 1, 2, and Columella, 1, 3, understand the law as Livy does; they see in it a limitation of property in general. I cannot, therefore, agree with M. d’Arbois de Jubainville, who interprets _de modo agrorum_, as if it were _de modo agri publici_. We must translate literally, and not change the sense. [59] See the _Lex dicta Thoria_, in the _Corpus inscriptionum latinarum_, I., p. 79: “Qui ager publicus populi romani fuit ... ager privatus esto, ejusque agri emptio venditio uti ceterorum agrorum privatorum esto.” [60] Javolenus, in the _Digest_, 50, 16, 115: “Possessio ab agro juris proprietate distat; quidquid enim adprehendimus cujus proprietas ad nos non pertinet, hoc possessionem appellamus; possessio ergo usus, ager proprietas loci est.” Notice that this idea of property is found even in the expression _ager publicus_, which does not at all mean common land; it means the property of the state, the public domain. If Maurer and his German or French disciples had known Latin or Roman institutions a little better, they would never have identified the _ager publicus_ with the _allmend_. [61] As to the synonymous character of these two words, see Varro, _De re rustica_, 1, 4, where both are used for the same thing; for another example, see _ibidem_, iii. 2. Similarly Columella, 1, 2 and 1, 4, pp. 27 and 33 of the bipontine edition. [62] Paul, in the _Digest_, xviii. 1, 40. [63] _Digest_, L., 16, 211. [64] Ulpian, in the _Digest_, L., 15, 4: “Forma censuali cavetur ut agri sic in censum referantur: nomen fundi cujusque, arvum quot jugerum sit, vinea ... pratum, ... pascua ... silvæ.”