Note 697 — Chapter XLVI · CONSTITUTIONAL AND JUDICIAL CHANGES AT ATHENS UNDER PERIKLES.

Sir Thomas Smith, in his Treatise on the Commonwealth of England, explains the Court of Star-chamber as originally constituted in order “to deal with offenders too stout for the ordinary course of justice.” The abundant compounds of the Greek language furnish a single word exactly describing this same class of offenders,—Ὑβριστόδικαι—the title of one of the lost comedies of Eupolis: see Meineke, Historia Critica Comicorum Græcorum, vol. i, p. 145.

Dean Tucker observes, in his Treatise on Civil Government: “There was hardly a session of parliament, from the time of Henry the Third to Henry the Eighth, but laws were enacted for restraining the feuds, robberies, and oppressions of the barons and their dependents on the one side,—and to moderate and check the excesses and extortions of the royal purveyors on the other; these being the two capital evils then felt. Respecting the tyranny of the ancient baronage, even squires as well as others were not ashamed to wear the liveries of their leaders, and to glory in every badge of distinction, whereby they might be known to be retained as the bullies of such or such great men, and to engage in their quarrels, just or unjust, right or wrong. The histories of those times, together with the statutes of the realm, inform us that they associated (or, as they called it, confederated together) in great bodies, parading on horseback in fairs and markets, and clad in armor, to the great terror of peaceable subjects; nay, that they attended their lords to parliament, equipped in the same military dress, and even dared sometimes to present themselves before the judge of assize, and to enter the courts of justice, in a hostile manner,—while their principals sat with the judges on the bench, intimidating the witnesses, and influencing the juries by looks, nods, signs and signals.” (Treatise concerning Civil Government, p. 337, by Josiah Tucker, D. D. London, 1781.)

The whole chapter (pp. 301-355) contains many statutes and much other matter, illustrating the intimidation exercised by powerful men in those days over the course of justice.

A passage among the Fragmenta of Sallust, gives a striking picture of the conduct of powerful citizens under the Roman Republic. (Fragm. lib. i, p. 158, ed. Delph.)

“At discordia, et avaritia, et ambitio, et cætera secundis rebus oriri sueta mala, post Carthaginis excidium maximè aucta sunt. Nam injuriæ validiorum, et ob eas discessio plebis à Patribus, aliæque dissensiones domi fuere jam inde à principio: neque amplius, quam regibus exactis, dum metus à Tarquinio et bellum grave cum Etruriâ positum est, æquo et modesto jure agitatum: dein, servili imperio patres plebem exercere: de vitâ atque tergo, regio more consulere: agro pellere, et à cæteris expertibus, soli in imperio agere. Quibus servitiis, et maximè fœnoris onere, oppressa plebes, cum assiduis bellis tributum simul et militiam toleraret, armata Montem Sacrum et Aventinum insedit. Tumque tribunos plebis, et alia sibi jura paravit. Discordiarum et certaminis utrimque finis fuit secundum bellum Punicum.”

Compare the exposition of the condition of the cities throughout Europe in the thirteenth, fourteenth, and fifteenth centuries, in Hüllmann’s Städte-Wesen des Mittelalters, especially vol. iii, pp. 196-199, seqq.

The memorable institution which spread through nearly all the Italian cities during these centuries, of naming as podesta, or supreme magistrate, a person not belonging to the city itself, to hold office for a short time,—was the expedient which they resorted to for escaping the extreme perversion of judicial and administrative power, arising out of powerful family connections. The restrictions which were thought necessary to guard against either favor or antipathies on the part of the podesta, are extremely singular. (Hüllmann, vol. iii, pp. 252-261, seqq.)

“The proceedings of the patrician families in these cities (observes Hüllmann) in respect to the debts which they owed, was among the worst of the many oppressions to which the trading classes were exposed at their hands, one of the greatest abuses which they practised by means of their superior position. How often did they even maltreat their creditors, who came to demand merely what was due to them!” (Städte-Wesen, vol. ii, p. 229.)

Machiavel’s History of Florence illustrates, throughout, the inveterate habit of the powerful families to set themselves above the laws and judicial authority. Indeed, he seems to regard this as an incorrigible chronic malady in society, necessitating ever-recurring disputes between powerful men and the body of the people. “The people (he says) desire to live according to the laws; the great men desire to overrule the laws: it is therefore impossible that the two should march in harmony.” “Volendo il popolo vivere secondo le leggi, e i potenti comandare a quelle, non è possibile che capino insieme.” (Machiavelli, Istorie Fiorentine, liv. ii, p. 79, ad ann. 1282.)

The first book of the interesting tale, called the Promessi Sposi, of Manzoni,—itself full of historical matter, and since published with illustrative notes by the historian Cantù,—exhibits a state of judicial administration, very similar to that above described, in the Milanese, during the sixteenth and seventeenth centuries: demonstrated by repeated edicts, all ineffectual, to bring powerful men under the real control of the laws.

Because men of wealth and power, in the principal governments of modern Europe, are now completely under the control of the laws, the modern reader is apt to suppose that this is the natural state of things. It is therefore not unimportant to produce some references, which might be indefinitely multiplied, reminding him of the very different phenomena which past history exhibits almost everywhere.