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The first great utterance of the Plebs, which followed the Valerio-Horatian law, was one of this character, for it attached a criminal (and therefore a public) penalty to a derogation of duty to the Plebeians. On the proposal of M. Duilius, the tribune, the Plebs resolved that “any one who left the Plebs without tribunes or created a (plebeian) magistrate without appeal should be scourged and executed.”[426] It was a mode by which the Plebs tried to guard itself from any possible surrender of its liberties such as that which had created the decemvirate.

The Plebs, thus secured in its original privileges, recognised as a corporate body, and feeling, as a result of the Twelve Tables, that its law was in the main the law of the state, began to aim at something more than protection. From this time begins the continuous struggle for the complete equalisation of the two orders. It was opened by the tribune Canuleius in the year 445. He rightly held that social must precede political equality, and proposed in the assembly of the Plebs that marriage should be permitted between Patricians and Plebeians.[427] The only reasonable objection which the consuls, representing the feeling of the Patriciate, could bring forward against the measure, was the time-worn pretext that was said to have influenced the decemvirs in inserting the prohibition in their code, viz. that the Plebeians had no auspices, and that the disappearance of a pure race would mean a break in the chain which connected the state with heaven.[428] But the pretext expressed the real fears of the Patriciate. Intermarriage between the orders would break down the religious barrier which guarded the consulship; this was the prize for which the Plebs was striving. In fact a suggestion, emanating from the tribunes at the beginning of the year, had already assumed the form of a rogatio to the effect that “the people should have power to choose consuls at its pleasure either from the Plebs or from the patres.”[429] Over the marriage question the usual contest ensued, and with the usual result. The consuls led the opposition as long as they could; at last the Senate was beaten, the magistrates were forced to bring the question before the people, and marriage between the orders was legalised.[430] The tribunes followed up their victory by pressing their measure for the opening of the consulship. It was felt that open resistance would be useless; and a device was resorted to which illustrates the Roman genius for adaptability, for dignified political chicanery, and for satisfying at the same time the demands of reason and prejudice. The immediate evil felt was the irruption of the Plebeians into supreme office; but there must have been for some time a growing sense that the executive machinery of the state was by no means equal to the demands made on it. The two consuls were at once military leaders, the sole administrators of the higher civil and criminal jurisdiction, and the sole officials entrusted with the duty of registering and distributing burdens over the citizens. Such a combination of functions could not continue to exist with the widening of Rome’s political horizon, and the first attempt was now made at a division of the military, judicial, and registrative duties of the supreme magistrate.