This class now comes forward for the first time, and as a body of the greatest weight, owing to Cn. Flavius. If Appius wished to drag down the leading plebeians from the position which they had won, it was no longer feasible to have recourse to arms in conjunction with clients and isopolites; but he had to gain his point by cunning, which was done by uniting a great mass with the patrician order, and so he introduced libertini into the tribes: he had then a majority in the resolutions of the Plebes. In a like manner, the municipes might further his plans; and he was himself able, by removing, as censor, the independent plebeians from the senate, and by bringing into it men of low birth, to carry measures which were formerly not to be thought of. Something similar occurs in the undertaking of Sylla, who likewise, more than two hundred years afterwards, came back to his legislation, and promoted men of the lowest rank, who were mere proletarians, into the senate. There is to be found in Livy, from the censorship of Appius downwards, a difference between the Plebs sincera and the forensis factio; evidently the former is the old Plebs, and the latter the incorporated freedmen and isopolites.
Those who had been newly received into the senate, must therefore have been only the creatures of Appius Claudius and his party. He certainly did not think of a tyrannis, being too sensible a man to do so: his son is said to have had such an idea; but he must have been mad. His plan could therefore have only been for the interest of the aristocracy: on what is called the “right side” in the French chamber of deputies, there is indeed no want of people who have been raised up by the revolution from the very lowest ranks. That Appius entered libertini upon the rolls of the senate, excited such heartburning, that the consuls summoned the senate according to its former composition: he seems in fact to have also made omissions, very likely among the plebeian senators. His list was therefore never made use of.
The period for which the censorship was held, had for a long time been reduced from five years to one and a half. Appius claimed all the five years, and carried his point, until at last he wanted to be consul and censor both at once. This was against the Genucian law; and the tribunes had decided upon having him arrested, if he should try and do this by force: he then resigned the censorship. It is, however, possible that he wished to retain it, not so much from motives of ambition, as for the sake of those great works which he had begun to execute. He made the Appian road, the regina viarum. For, the Latin one, which led through Tusculum, and through the country of the Hernicans, being then so much infested, and not yet quite restored to the possession of the Romans, the Appian road was to serve as a shorter and safer one: it led by Terracina, Fundi, and Mola, to Capua. At first, he laid it down as far as Velitræ, then to Setia round the Pontine marshes. That portion which crosses the marshes themselves, he did not make;—even that which was afterwards constructed, was not of much use for the Roman troops;—but he cut a canal through them, in order to drain part of them: for to drain the whole, was not, and will perhaps never be possible. This canal was meant for the conveyance of warlike stores from Cisterna to Terracina; which was necessary, as the Romans had no fleet, and the Tarentines could easily cut off their communication by sea with Campania. The mainroad for the troops passed over the mountains, and by Setia, via Setina, which, therefore, in the list of roads is mentioned separately: it is the same road, which throughout the middle ages, until the times of Pius VI., was again the common one, when the Pontine marshes were deserted. The Romans chose it, because the distance between Cisterna and Terracina through the marshes is too great for one day’s march. There lay indeed between the two places Forum Appii on the canal; but indeed it must have been inhabited during the winter only: on the Via Setina, on the other hand, the armies might encamp on the hills during the summer nights. Had they wished to bivouack in the Pontine marshes during the night, they would have been destroyed by the malignant fevers; consequently the Via Setina was a necessity. The Via Appia, even if Appius should have carried it on the whole length to Capua, has not been executed by him with that magnificence which we now admire in those parts of it which have not been intentionally destroyed; those closely fitting polygons of basalt, which thousands of years were not able to disturb, are of somewhat later date. The road was now made because it was wanted; and it was not until the year 457, that they began at all to pave it with peperino, and some years later with basalt (silex),—at first a small portion, from the Porta Capena to the temple of Mars, of which we have positive information in Livy. Before that time, there were highroads already, which along the mainway had footpaths paved with peperino; that is to say, with flag-stones (saxo quadrato) of that material. For the basaltic pavement, the fines especially were appropriated.
Appius was also the first who brought an aqueduct to Rome, the aqua Appia. The Roman aqueducts of later times were of immense extent; the one built by Appius was but a small beginning, being only for immediate wants. They had to fetch water in Rome from wells, but chiefly from cisterns (putei), as that which is got from the Tiber is so bad. Those quarters of the city which lay low on marshy ground, as the Velabrum, the Forum Olitorium, had of course no wells, and people were therefore obliged to do as well as they could with cisterns: to supply those parts, was the object of the aqua Appia. It was brought to Rome from a distance of eight (Italian) miles, and supplied only the lower town, not the hills, as Livy expressly states. It was finished in the middle of the Samnite war, after the year 440, when fortune began to turn in favour of the Romans; and it was all under ground, as Frontinus tells us, that it might not be destroyed in some of the many Latin insurrections. For it was feared that arches built above ground might be demolished, as was done by the Goths in Belisarius’ times. It led by the Cœlius under the Porta Capena to the Aventine, as far as the spot where Piranesi very exactly hit upon it, near the Clivus Publicius, at the corner of the hill. The outlet is now covered with rubbish, the water having been choked by stalactites, as in several other aqueducts. This undertaking was a benefit unknown throughout the whole of Greece.
These two works are said to have induced Appius Claudius not to lay down his censorship, until they should be completed, and much has been written here about the struggle between him and the tribunes. If it was merely his intention to carry out this design, the way in which the tribunes behaved would have been paltry enough: but perhaps these works were too grand for the circumstances of the times; and it is a question, how far he may have burthened the existing generation for the benefit of those who came after. According to a statement which Diodorus has taken from Fabius, who, though a patrician himself, was indeed an enemy to oligarchy, Appius actually undertook them without any authority from the senate. This would certainly have been an audacious enterprise; and, to judge from his disposition, it was not impossible. He seems also to have made sales of the ager publicus for this purpose; and thus, while the Plebes suffered, the members of his own order were losers as well.
His real agent seems to have been the Cn. Flavius, who has been already mentioned. This man was the son of a freedman; he could therefore use the name of his father only, which was Annius. This is an Etruscan name; so that Annius was very likely an Etruscan slave, who had perhaps been a man of consequence in his own country, and had only lost his freedom (ingenuitas) by having been taken prisoner. Cn. Flavius became the benefactor of the people, in a manner of which we cannot easily form an idea. According to the most ancient Roman custom, there were thirty-eight court-days in the year of ten months, the kings, and then the consuls, sitting in judgment every eighth day, consequently on the nundines. This was afterwards done away with; the nundines were no more to be the same as the court-days, as on these the country plebeians were in such numbers in the town, that a tumult might easily be raised. The thirty-eight days were therefore distributed over the whole year of twelve months; and there being too few of them, single days were added, on which likewise lege agebatur. But now there was a double difficulty; and the patricians took advantage of the circumstance to keep the plebeians in a state of dependance. The thirty-eight days had been distributed irregularly throughout the year; so that if any one wanted, for instance, to sue by a vindicatio, he did not know when the prætor would sit in judgment, but had to make inquiries in the forum, or of the pontiffs, on what day a legis actio might be brought in. Now it might be answered, that one could surely have remembered the eight and thirty days: but then there were others besides, half fasti and half nefasti, on which lege agebatur; and others again, on which comitia were appointed to be held, but yet lege non agebatur. And therefore, as we are told, Appius ordered his scriba Cn. Flavius constantly to find out from the lawyers, on what days legi agi posset; Flavius by this means made a calendar on a tablet of plaster (album), and publicly set it up: it was then frequently copied, and the plebeians were full of gratitude towards him. Indeed, to secure their independence still further, he also published the formulæ actionum:—according to Cicero, this was done after his time only, as the forms themselves were first invented at a later period; according to others, it was he who did it, which is much more likely. We must not imagine this to have been a regular system of laws, although it is generally termed jus Flavianum, but a set of forms of proceeding for every case,—a sort of “Complete Lawyer.” This was felt to be a heavy blow to the influence of the higher classes on the common people. Until then, no one could transact any business without a legal adviser; for certain acts could only be performed on certain days, and so forth. This manual of law is a great step in the progress of political freedom.
As a requital for these benefits, Cn. Flavius had the votes of the plebeians in the election for the ædiles. When it was objected to him that he could not be an ædile, quia scriptum faceret, he took an oath that he would give up his notary business; from which we may gather, that, at that time, it was still incompatible with the condition of an ingenuus. Together with him, one Q. Anicius of Præneste, who a few years before had still been a public enemy of the Romans,—perhaps the remote ancestor of that Anician family which was so brilliant in the last days of the western empire,—was elected in opposition to two distinguished plebeians, a Pœtelius and a Domitius; which proves that in this case, isopolites and libertini, the factio forensis, combined, and decided the election. We find from Pliny, that Flavius made a vow, si populo reconciliasset ordines; by populo the patricians are meant, and as Flavius performed his vow, the reconciliation must have been effected: very likely he acted as mediator during the later censorship of Fabius and Decius, inducing the libertini to allow their rights to be abridged, as the good of the republic required. For from the mingling of these men with the tribes, there arose great fermentation, down to the censorship of Q. Fabius Maximus and P. Decius. A reconciliation then took place (449): the libertini could not entirely forego their rights; but they were combined by Fabius into four tribes, the tribus urbanæ, which always remained tribus libertinorum, and consequently minus honestæ. This measure had most beneficial results. For when we call to mind that the votes were given by tribes, in each of which it was the majority which decided; we may easily imagine, that if the libertini, who were engaged in trades and dwelt in the city, were scattered through all the tribes, they, being always present, must have formed the majority in any meeting which was suddenly called; as among the plebeians of each tribe, but few of those who lived out of the town, could have made their appearance: and thus, in such assemblies of the commonalty, the whole power had passed into the hands of the libertini. The system of Appius would therefore have become most pernicious, without this wholesome change.
At the time of the second Samnite war, another change took place, namely, the abolition of the nexum, which Livy assigns to the consulship of C. Pœtelius and L. Papirius; but according to Varro, as corrected from the MS., it was brought about during the dictatorship of Poetelius, 441. With this also agrees the circumstance, that the impoverished state of the families of the bondmen for debt is said to have been a consequence of the disaster at Caudium. We thus see, how even at so late a period, events which did not strictly belong to the province of real political history, were arbitrarily interpolated in the annals. A youth is ill treated; he rung to the forum; a tumult arises: then it came to pass that the nexum was abolished, so that the person of the debtor, or those of his children, were now no more to be detained. This shows us a state of things in which the mob have already great power. We cannot doubt but that by this time indeed, wealthy people pledged themselves realiter by the fiducia, if they had quiritary property; and this kind of mortgage may have become more general, the more the quiritary property increased among the plebeians. It was now permitted as the only one, and it was forbidden to pledge one’s person. But if any one incurred a debt by a delictum, the relation of the addictio remained; and he was to continue in it, until he redeemed himself: this is certainly the case, even as late as in the war with Hannibal. The continuance of this relation has led many into error, and has awakened in them a suspicion of the law of Pœtelius; but addictio is something quite different from the nexum. Livy calls this law novum initium libertatis plebis Romanæ.
In consequence of the Ogulnian law, from the year 462, the number of the Pontifices majores was increased from four to eight, and those of the augurs from four to nine: the increase was taken from the ranks of the plebeians. A ninth pontiff was the Pontifex maximus, who without doubt was chosen promiscue from both orders. Afterwards cooptatio was by a decree: whether it were thus from the beginning, is hidden in darkness. Twenty years later, Ti. Coruncanius was the first plebeian Pontifex maximus. Livy gives us the suasoria of Decius on the occasion of the Ogulnian law; but the speech is not quite in the character of that age: for, the patricians now knew right well, that they could no longer keep their privileges. This change is evident from the fact, that, although at that time there is no doubt that the nominations to the priesthoods were made by the curies, or by cooptation on the part of the college, yet the law was not transgressed at all, and the plebeians were at once admitted to these offices. Thus the spirit of real life had prevailed over the letter of mere institutions. People as yet only called themselves patricians and plebeians; but there existed already the parties of those who were noble, and of those who were not: the former comprised all the eminent patrician and plebeian families.
The admission to the priesthoods was a point in which the plebeians were highly interested; as the pontiffs were the guardians of the civil law, and the keepers and the fountain head of the whole of the jus sacrum, and the augurs, whose declarations in that age were certainly still considered authentic, exercised influence upon all transactions of importance.