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JOHNS HOPKINS UNIVERSITY STUDIES

IN

HISTORICAL AND POLITICAL SCIENCE


HERBERT B. ADAMS, Editor


History is past Politics and Politics present History.--_Freeman_



NINTH SERIES




V-VI

The Communes of Lombardy from the VI. to the X. Century

AN INVESTIGATION OF THE CAUSES WHICH LED TO THE DEVELOPMENT OF
MUNICIPAL UNITY AMONG THE LOMBARD COMMUNES


BY WILLIAM KLAPP WILLIAMS, PH.D.

NEWBERRY LIBRARY, CHICAGO

May, June, 1891

     "Est error spretus, quo Langobarda juventus
     Errabat, verum loquitur nunc pagina sensum."


RHOTARI: _Legum Prologus_.


THE COMMUNES OF LOMBARDY FROM THE VI. TO THE X. CENTURY.



PART I.


THE LOMBARD CONQUEST AND ITS RESULTS.

Before tracing the beginnings of renewed municipal life in Northern
Italy, we must consider the conditions of land and people, which first
rendered possible and then fostered the spirit of local independence
of which such beginnings were the natural expression. To do this we
must commence our researches with the first domination of the Lombards
in the country.

In detail the story of the conquest of Northern Italy by the Lombards
under Alboin, in 568, hardly differs materially from that of the
inroads of other barbarian tribes of the north on the fertile plains
of Italy. The causes were the same. Where the distinction is to be
found from other such invasions, is in the results of the Lombard
occupation, and in the different methods which the Lombards adopted so
as to render their power and their possessions permanent. Let us look
at the character of this invading host, which sweeps like a tide, at
once destroying and revivifying, over the exhausted though still
fertile plains of the Po and the Adige. Are we to call it a moving
people or an advancing army? Are we to call its leaders (_duces_, from
_ducere_ to lead), heads of clans and families, or captains and
generals? Finally, is the land to be invaded, or is the land to be
settled? To all these questions the only answer is to be found in the
conception of the absolute union of both the kinds of functions
described. A people is moving from a home whose borders have proved
too narrow for its increasing numbers; an army is conquering a new
home, where plenty will take the place of want, and luxury of
privation. It is not an army marching at the command of a strongly
centralized power to conquer a rich neighbor, and force a defeated
enemy to pay it service or tribute. It is a body which, when it has
conquered as an army, will occupy as a people; when it is established
as a people, will still remain an army. The sword was not turned into
the ploughshare; but the power to wield the sword had given the right
to till the land, and soon the power to hold the land was to give the
right to wear the sword. It was the conquest of a highly civilized
agricultural people--whose very civilization had reduced them to a
stage of moral weakness which rendered them totally unfit to defend
themselves--by a semi-barbarous people, agricultural also, but rude,
uncivilized, independent, owning no rulers but their family or
military chiefs.

The conquerors took possession of the country simply as they would
take possession of a larger farm than they had before owned. Their
riches were only such as served for the support of men--herds, land,
wine and corn. They needed cultivators for their large farm, so
instead of destroying every one with fire and sword, they spared those
of the weak inhabitants of the land who had survived the first
onslaught, in order that they might make use of farmers to cultivate
their new possessions. In most cases they did not make slaves of them,
but tributaries; and after the land had been portioned evenly among
the soldiers of the invading host, the original holders of the land
tilled it themselves, under a system somewhat kindred to the metayer
system as to-day existent in Tuscany and elsewhere, paying, according
to the usual custom adopted by the northern conquerors of Italy,
one-third of the produce[1] to their new masters. The whole
organization of society was on a purely military basis; the soldiers
of the conquering army, although they became landed proprietors, none
the less retained their character and name of soldiers. Hence when
these crude forms of social life began to crystallize into the
carefully marked ranks of the feudal system, the "_milites_"[2] formed
the order of gentlemen, the smaller feudatories, who gave land in fief
to their vassals--generally the old inhabitants--while holding their
own nominally from the "_duces_," or dukes, the representatives of
their former leaders in war, who held their tenure direct from the
king or chief.

As the object of this paper is particularly to trace the origin and
early sources of municipal life in Northern Italy, let us turn and see
what were the effects on the already existing towns, of the inroads of
these hordes of northern barbarians. At the outset I must state
emphatically that all our sources of information as to the
institutional history of this obscure period are exceedingly vague,
meagre and unsatisfactory. The progress of events we can follow with
more or less accuracy from the mazy writings of the early chroniclers;
we can get a fair idea of the judicial and the legislative acts of the
ruling powers by studying and comparing the different codes of laws
that have come down to us; but in a study of the internal municipal
life of these early ages, the student meets again and again with
increasing discouragement, and soon finds himself almost hopelessly
lost in a tangle of doubts and inferences.

In the almost total want of direct evidence, from casual mention
gleaned from the writings of the chroniclers, and from occasional
references in the law codes to municipal offices and regulations,
enough indirect evidence must be sought, to enable us, by the aid of
our powers of reasoning, if not of our imagination, to build up some
history, defective though it be, of municipal life, down to the time
when the internal growth and importance of the cities rendered them
sufficiently prominent political factors to have their deeds and their
progress chronicled. Besides, if we consider the modes by which the
communes slowly rose to independence, it will easily be seen that to
have every step of this slow and almost secret advance chronicled and
given to the world, would have been entirely contrary to the policy of
the cities. These hoped to gain by the neglect of their rulers, and
while clinging pertinaciously to every privilege ever legally granted,
to claim new ones constantly, putting forth as their sole legal title
that slippery claim of precedent and time-honored custom. In that age,
books of reference to prove such claims would have been found alike
inconvenient and unnecessary. All the city folks wished was to be
forgotten and ignored by their superiors, as any notice vouchsafed
them was sure to come only in the restraint of some assumed privilege
or the curtailing of some coveted right.

Hence the principal cause of the poverty of record through all this
period of slow if steady growth; and the disappointed investigator
must in some measure console himself with such a reason. It may be
asked, what of the various local histories of different towns, whose
authors seldom fail to give highflown accounts of their native cities,
even in the remotest and darkest ages of their history? To this
question there is a double answer: in the first place the uttermost
caution must be enjoined in using such material; not only in
separating fact from baseless tradition of a much later period, but in
making large allowance for the heavy strain which a strong feeling of
local patriotism, or civism, puts upon the conscience of the author.
In the second place it must be remembered that most of such histories,
or at least of the monkish or other records from which they derive
their source and most of their material, were written to the glory or
under the auspices of some dominant noble family or ecclesiastical
institution, to whose laudation in ages past and present the humble
author devotes all the resources of his mind, and I am afraid far too
often of his imagination.

Let us now cast a glance at the exhausted civilization of the towns of
Northern Italy, where the formal shell of Roman organization still
remained, after the vigor and life which had produced it had long been
destroyed. To describe the condition of the Roman _municipia_ at the
time of the Teutonic invasions is but to tell a part of the story of
the fall of the Roman Empire. The municipal system, which from the
names and duties of its officers would seem to represent a surprising
amount of local independence in matters of administration, even a
collection of small almost free republics, had lost all its strength
and all its vital power by the grinding exactions of a centralized
despotism, which was compelled to support its declining power by
strengthening the very forces which were working its destruction, at
the expense of destroying those from which it should have gained its
strength. The stability of every state rests ultimately on the wealth
and character of its citizens, and any government which exhausts the
one and degrades the other in an effort to maintain its own unlimited
power has its days numbered. Under the despotic rule of the later
emperors the municipalities had lost all their power, though in theory
their rights were unassailed. The _curia_ could elect its magistrates
as of old, and these magistrates could legislate for the _municipium_,
but by a single word the imperial delegate could annul the choice of
the one and the acts of the other.

The economic condition of the people amounted to little short of
bankruptcy; the possession of wealth, in landed property especially,
having become but a burden to be avoided, and a source of exaction
rather than of satisfaction to the owner. The inequalities of burdens
and of rank were great. The citizens were divided into three classes:
(1) the privileged classes, (2) the Curials, (3) the common people.
The first, freely speaking, were those who had in a manner succeeded
in detaching themselves from the interests of the _municipium_ to
which they belonged; such were the members of the Senate, including
all with the indefinite title of _clarissimi_, the soldiers, the
clergy, the public magistrates as distinguished from the municipal
officers. The second consisted of all citizens of a town, whether
natives--_municipes_--or settlers--_incolae_--who possessed landed
property of more than twenty-five _jugera_, and did not belong to any
privileged class: both these classes were hereditary. The third, of
all free citizens whose poverty debarred them from belonging to either
of the preceding divisions. On the second of these classes, the
Curials, fell all the grinding burdens of the state, the executing of
municipal duties, and the exactions of the central government.

It is not necessary for me to trace here the development of that
financial policy which resulted in the ruin, I may say the
annihilation of this order. Suffice it to say that it formed the
capital fund of the government which exhausted it, and when the source
of supply was destroyed, production ceased, and with it, of course,
all means of governmental support. Where the extinction of this
"middle class" touches the point of our inquiry is in affording an
explanation of a circumstance in the history of the Lombard
subjugation of the Italian towns, which without consideration of this
fact would appear almost incomprehensible. I refer to the utter
passivity of the inhabitants, not only in the matter of resistance to
attack, which the greater strength and courage of the invaders perhaps
rendered useless, but in what is more surprising, the fact that after
the easy conquest was completed, we hear nothing of the manner in
which the people adapted themselves to the totally new condition of
life and of government to which they were subjected. Even if we can
understand hearing nothing of what the people did, at least we should
expect to hear what was done with it, what it became. The story of its
resistance might be short and soon forgotten, but the story of its
sufferings, of its complaints, of struggle against the entire change
in the order and character of its life, should be a long one.

But of this no record, hardly mention even appears. When the central
government falls and the last of its legions are destroyed or have
departed, there seems to be no thought of any other element in
society. If the evidence of the law codes did not tell us that a Roman
population existed, history would record little to indicate its
presence. Not only is even the slightest trace of nationality effaced,
but the merging of the old conditions of life into the new seems of
too little consequence to merit even an allusion. This state of
affairs, as said above, is caused by the annihilation, by the despotic
power of the central government, of that middle class which in times
of prosperity formed the sinews of the state. Of the other classes,
the privileged class, with the exception of the clergy, fell of course
with the government which supported it, and the common people
possessed no individuality, no power, and hardly any rights. Such,
then, was the condition of the towns at the time of the Lombard
invasion, a condition of such abasement and such degradation as
literally to have no history; a condition which indeed can truthfully
be said to merit none.

History tells the story of every great nation on the face of the earth
in three short words, growth, supremacy, decline. Vary the theme as
you may in the countless histories of countless peoples; subdivide the
course of its progress as you will, allowing for different local
causes and different local phenomena, the true philosophy of history
teaches that no real departure from this natural development is
possible. But what if by the violent intervention of some new and
entirely foreign force, another development and another life is given
to the inanimate ashes of the old? What if some nation, fresh from the
woods and fields of the childhood of its growth, come with
overwhelming yet preserving strength and infuse new blood into the
withered veins of its predecessor? This is the problem we now have
before us. How many writers of Italian history have entitled this
chapter in its development "A new Italian Nation formed"! It is not
the old glories of Rome, which had been Italy, returning; it is a new
Italian nation formed. Each word tells a story of its own. It is not
the old galvanized to a second life; it is the new superimposed,
violently if you will, upon it. We do not hear of Athens or of Rome,
of an Alexander or of a Caesar, of a city or of a man. It is an
"Italian nation." It is the individualism of the independent spirit of
the North, which "forms" a nation from the exhausted remains of the
development of centralization of the South. The new idea of distinct
nationality among races of kindred stock was already at work, even
though it did not reach a formal expression till the Treaty of Verdun,
more than two hundred and fifty years later.

I do not mean to imply that we must in any measure ignore the passive
force and influence of the old forms on the new. The old veins receive
the new blood; the new torrent, overrunning everything at first with
the strength of its new life, will find again, even if it deepen, the
channel of the old river: a vanquished civilization will always subdue
and at the same time raise its barbarous conquerors, if they come of a
stock capable of appreciating civilizing influences. In the present
case this means that the men of the North brought the new ideas that
were to form modern history, and let their growth be directed and
assisted, while they were yet too young to stand alone, by some of the
framework which had been built up by the long experience of their
Southern neighbors.

To focus this thought on the immediate subject of our present study,
this I think is the only and true solution of the tedious question, so
much discussed by the two opposing schools of thought: whether the
government of the Italian communes was purely Roman in its forms and
in its conception, or purely Teutonic. The supporters of neither
theory can be said to be in the right. You cannot say that the average
city government was entirely Roman or entirely Teutonic, either in the
laws which guided it, or in the channels by which these laws were
executed and expressed. I think much time and much learning have been
spent on a discussion both fruitless and unnecessary. We cannot err if
we subject the question to a consideration at once critical and
impartial.

The widely differing opinions eagerly supported by different writers
on this point, form a very good example of the deceiving influence of
national feeling on the judgment in matters of historical criticism.
For, on the one hand, we find many German writers ignoring entirely
the old framework of Roman organization, and recognizing only the new
Teutonic life which gave back to it the strength it had lost; on the
other, a host of lesser Italian writers who magnify certain old names
and forms, and mistake them for the substance, making all the new life
of Italy but the return of a past, which belonged to a greatness that
was dead. Many there are of this school in Italy, where you will often
find to-day a commune of three hundred inhabitants, with its one or
two constables wearing the imperial badge, "_Senatus Populusque
Albanensis_" or "_Verulensis_," as the case may be. Truly a suggestive
anachronism! It is true that in remote ages especially, when the
records of history are few and uncertain--and the period we are
considering in this paper can almost be called the prehistoric age of
municipal institutions in Northern Italy--much can be learned and much
truth inferred from the evidence of a name. But this is a species of
evidence we can never be too cautious in using, as the temptation is
always to infer too much rather than too little.

In the following pages I will try to sift the evidence obtainable,
with the impartiality of one trammeled by the support of no particular
theory; always bearing in mind, however, one fact, all-important in a
study where so much depends on nomenclature, namely, to give that
shade of meaning and that amount of weight to any term which it
possessed in the age in which it was used, carefully distinguishing
this from its use in any earlier or later age. The importance of this
caution will be soon seen when we come to discuss the origin of
corporate life in the communes, where many have been misled by
attaching to the words _respublica_ and _civitas_, for example, so
continually recurring in the old laws and charters, a meaning which
was entirely foreign to the terms at the period of their use. With
this warning, we will turn to a consideration of the first effects of
the inroad of the northern barbarians on the cities, whose exhausted
and defenseless state has already been pointed out.

One of the chief characteristics of the Teutonic tribes which overran
Italy during the fifth and sixth centuries, was an innate hatred of
cities, of enclosing walls and crowded habitations. Children of the
field and the forest, they had their village communities and their
hundreds, their common land and their allotted land, but these were
small restrictions on their free life, and left an extended
"air-space" for each individual and his immediate household. Homestead
was not too near homestead, each man being separated from his neighbor
by the extent of half the land belonging to each. The centralization
of population in city life was a thing undreamed of, and an idea
abhorred, alike for its novelty and for the violence it did to the as
yet untrained instincts of the people. The strong, independent
individualism of the Teutonic freeman rebelled against anything which
would in any way limit his freedom of action: "ne pati quidem inter se
junctas sedes," says Tacitus.[3] An agriculturist in his rude way, he
lived on the land which supported him and his family, and feeling no
further need, his untrained intelligence could form no conception of
the necessities and the advantages of the social union and
interdependence of a more civilized state of society; nor could he
comprehend the mutual relations of the individual to the immediate
community in which he lived.

He could understand his own relation to and dependence on the state as
a whole; alone he could not repel the attacks of neighboring tribes,
alone he could not go forth to conquer new lands or increase the
number of his herds. But why he should associate with others and so
limit the freedom which was his birthright, for other purposes than
those of attack and defense, of electing a leader for war, or getting
his allotment of land in peace, was altogether beyond the horizon of
his comprehension. He was sufficient unto himself for all the purposes
of his daily life; to the product of his own plough and hunting-spear
he looked for the maintenance of himself and his family, and the loose
organization which we may call the state existed simply so as to
enable him to live in comparative peace, or gain advantage in
war--perhaps the first example of the new power in state-craft which
was to revolutionize the political principles of the world; the
individual lived no longer simply to support the state, but the state
existed solely to protect and aid the individual.

If all this be true of the Teutonic nations in general, in the earlier
stages of their development, particularly true is it of the
Lombards,[4] a wild tribe of the Suevic stock, whose few appearances
in history, previous to their invasion of Italy, are connected only
with the fiercest strife and the rudest forms of barbarism. History
seems to have proved that tradition has maligned the Vandal; the Goth
can boast a ruler raised at the centre of Eastern civilization and
refinement; but the Lombard of the invasion can never appear as other
than the rude barbarian rushing from his wild northern home, and
forcing on a defenseless people the laws and the customs suited to his
own rugged nature and the unformed state of society in which he lived.

Such being the case, there is little cause for wonder that the
invading Lombard directed his fury with particular violence against
the corporate towns, whose strength was not sufficient to resist the
attacks of his invading host. Like all other Teutonic tribes the
Lombards were entirely unskilled in the art of attacking fortified
towns; hence the only mode of siege with which they were acquainted
was that of starving out the inhabitants, by cutting off all source of
supply by ravaging and destroying the surrounding country. This fact,
unimportant as it may seem at the first glance, materially affected
the whole course of the later history of some of the Italian cities.
By this means we are enabled, even at this early epoch, to divide them
into two classes. First, those cities which, after a more or less
short resistance, yielded to the rude tactics of the barbarians and
were made subject by them, for example Milan and Pavia.[5] Second,
those cities like Venice and Ravenna,[6] which, by means of a
connection with the sea which the invaders could not cut off, were
enabled to gain supplies by water, and so resist all efforts of the
besieging host to capture them. They never fell completely under the
Lombard yoke, and either retained a sort of partial autonomy or
yielded allegiance to some other power. It is the cities of the former
class that are the subject of this investigation.

The condition of these inland towns at the time of the invasion was,
as we have seen, weak in the extreme. The defenses, where they
existed, were of a character to afford little protection, and the bulk
of the inhabitants were so enervated from a life of poverty and
oppression that they were almost incapable of offering any resistance
in their own defense. They were reduced to such a condition as to be
only too grateful if their rough conquerors, after an easy victory,
disdainfully spared their lives, and left them to occupy their
dismantled dwellings.

This seems to have been the almost universal method of procedure. The
Lombards did not in any sense, at first, think of occupying the
conquered cities; for the reasons already given they despised, because
they could not yet comprehend, the life of the civilian. They
contented themselves with pulling down the walls, razing the
fortifications, and destroying every mark which would make of the city
anything but an aggregate of miserable dwellings. The inhabitants were
for the most part spared, and left to enjoy, if the term can be used
for such an existence, what the conquerors did not think worth the
having. These felt the fruits of their victory to lie in the rich
arable lands of the surrounding plains, and here they settled down,
each in his own holding, portioned out by lot to every soldier; the
town being considered but as a part of the _civitas_ or district, if I
may use the term, of the _dux_ or overlord, from whom the several
_milites_, or landholders of the surrounding territory, had their
tenure, and who himself held directly from the king.

It is the very insignificance of the municipal unit at this time that
makes it so difficult to determine anything accurate of its position.
It existed, but little more can be said of it; indeed, even this
statement might be questioned, if we make that term signify a
corporate existence, as will be seen further on when we come to
discuss the question of the unbroken corporate existence of the towns.
In a feudal age, or in an age of incipient feudalism, obligation,
either claimed from an inferior or yielded to a superior, is a good
index of rank and importance. Until we find the cities fulfilling
certain obligations required by a higher power, we can learn little to
tell of their condition or of their internal history. On the other
hand, when we find the time come for fulfilling certain obligations,
we can safely argue that the cities have acquired certain functions
which put them in a position to meet the obligations which their
growing importance has caused to be exacted of them. To trace these
steps accurately and satisfactorily is impossible, but by the aid of
collateral evidence a rough idea of the epochs at least of their
progress can be gained.

For this first period, then, we see the towns reduced to the lowest
depths of wretchedness and disintegration; critically speaking hardly
existing, but simply holding together. In studying institutions and
tracing the course of their development, we must always remember that
the uninterrupted continuance of their history may depend as much on
the moral force of their existence as on the more limited and defined
fact of their accurate and legal recognition by others. In every
society a state of fact must in time become a state of law, as wise
legislation is more the recognition by law of existing conditions than
the formulating of new codes. So the towns, even at the period
immediately succeeding their conquest by the Lombards, though their
corporate existence cannot be claimed, nevertheless cannot be said in
any measure to have ceased to exist; for as collections of individuals
and of dwellings they were there, with an individuality uneffaced
though as yet unrecognized.

It was a period of utter stagnation, of suspension of life, but the
source remained intact, from which, by the evolution of events and the
progress of time, seeds were to spring that only needed external
pressure to force them into a growth, slow indeed but certain, and in
the end fruitful. A transition period we might call it. The theory of
Roman universal domination, by relegating to the central power all the
_political_ functions of the municipality and leaving it only its
_civic_ ones, and these in later imperial times grudgingly and with an
impaired independence, had left it simply an administrative instead of
a political division of the state. In the flush of triumph the rough
hand of the barbarian overthrew the framework of administration, and
at first failed to recognize the necessity of replacing it by any
other. The passivity of the conquered inhabitants--the cause of which
has already been explained--was such that a long period elapsed before
they realized that to regain in some measure the position of local
independence that they had lost, and to free themselves from the
shackles of dependence on the rural communities in which they were
placed--a dependence forced upon them by the natural development of
the new state system of their Teutonic conquerors--some common effort
at organization was needful, for purposes at least of self-defense.
That this effort came from the town itself, from the people and not
from the external power of the ruler or overlord, is the fact which
first makes the history of these municipalities interesting.

There are two facts, however, which, even at this early date, begin to
influence the internal history of the communes. These are the
influence which the Church,[7] through its bishops, began to attain in
the civil affairs of the country; and the idea beginning to gain
currency that the locality where a number of individuals, however
wretched in state, were collected together, would afford a safer
refuge than the open country to the oppressed, the homeless and the
outcast. I will briefly consider the latter first, as of less
importance, though not unconnected with the former.

In the period of great confusion in all relations of property which
ensued from the Lombard military system of small independent
landholders and a few great overlords, with a nominal royal ownership
of title, and before the feudal system was established, with its iron
rules in regular working order, constant inequalities of wealth and
consequent changes in the relative positions of individuals were sure
to ensue. In practice if not in theory, might makes right in such a
state of society. The weaker goes to the wall, and the stronger gains
in strength by his downfall. Besides, it was long before the roving
and predatory instinct of the barbarian was moderated; and his weaker
neighbor was the natural prey of the more powerful landholder, an
example not unfrequently set by the king himself. Now, if the weaker
party remained to brave the attack and was conquered, he was reduced
to a state of villeinage or of dependence more or less complete. If on
the other hand he wished to escape this change of condition, where was
he to find refuge? The only safe asylum in those days of rapine and
violence was that offered by the Church and its precincts. The church
of the greatest importance in the district, in this early age when no
walled monasteries existed, would without doubt be that situated
within the limits of the nearest town. To this haven then comes the
outcast, hastily collecting his family and all of his wealth of a
portable character; the country loses a small landed proprietor, but
the town gains a citizen, a freeman, a member of the upper class.

Of course many of the fugitives who sought asylum in the towns were as
low as the great numbers of the semi-servile population, but much that
was new and of a better character and intelligence, and even a large
amount of property, which later gave birth to commercial and other
interests, were introduced by members of the higher classes fleeing
from their more powerful neighbors. Also the human instinct of seeking
fellowship in misfortune probably assisted in increasing the numbers
which in times of trouble flocked towards the towns as a haven of
refuge and a place to seek support. To see how they were in a measure
enabled to attain these results, we must now consider the first of the
two facts mentioned above, that is, the power in civil affairs gained
by the bishops.

When the Lombards of the conquest, in their hatred of everything which
savored of the old Roman civilization, overthrew all the established
offices of city government to replace them with others of barbarian
name and origin, or to leave them unfilled altogether, among the
time-honored officers of the Roman rule was one whose powers were
everywhere recognized, even if at present it is a little difficult to
define with precision his duties. I refer to the _defensor urbis_.
This office came into prominence when Roman despotism found that it
was overreaching itself by grinding down the defenseless _curiae_
below the margin of productiveness. The duties of the _defensor_ were,
as his name implies, to protect the powerless inhabitants of the
cities against the exactions of the imperial ministers. He enjoyed
many important privileges of jurisdiction, and these were materially
increased by the legislation of Justinian; and soon the _defensor_
became an important officer of the municipality.[8] What particularly
concerns us is that he was the only municipal officer who was elected
not by the votes of the _curia_ alone, but by those of the whole
people forming the _municipium_, including the bishop and his clergy.
Now in the period just preceding the invasion of the barbarians, the
clergy alone possessed any energy and influence; so into their hands
fell the control of this new institution, and consequently all that
remained of life in the municipal system.

As in city matters these conditions remained unaltered after the
coming of the Lombards, what was more natural than that the bishops
should retain their moral position of defenders of the people, even if
we admit that the form of the office fell with the old administration?
To these considerations we may add two important facts: that the
office of bishop was for a long time the only one in the election to
which the people--and by this term I mean the people as a whole, not
the _populus_ of the old laws and charters--had any voice whatever;
and that the bishop, from his spiritual position as pastor of the
flock, and from his civil position as having great legal influence in
the town and being probably the only man of superior intellect
interested in the internal affairs of the community, was the proper
and most effectual mediator between the people and their temporal
rulers. Hence arose that important influence of the bishops which was
to have so perceptible an effect on the subsequent development of the
principles of liberty in the communes.

To appreciate properly, and to give the true value to this power in
its later progress, we must remember one thing: that it did not have
its origin by any seeking of power by either the Roman or the
Ambrosian church as a body, in any concerted effort to extend the
ecclesiastical power at the expense of the civil. It came from the
spontaneous effort of the pastor, the natural and at that time the
only protector of the people, trying to save his flock from the
extortion and the injustice of their temporal rulers. In addition to
this it must be remembered that at that time the office of the bishop
was the only one where even the shadow of the democratic idea was
preserved, the only one where the lowest of the people, theoretically
at least, had a voice in the election. In later times, when the feudal
system becomes established in its completeness, the position of the
bishop undergoes a great change, as his relations to the state and to
society become more complex in their character; and his importance in
the community, while it at first increases, in time surely diminishes,
under the influence of his double relation of lord and vassal to some
higher temporal power. When he in his turn becomes the possessor of
political power as a great baron or as head of a _civitas_, his
interests, and consequently his influence, are concerned with
intriguing and with efforts for his own political advancement, in many
cases leaving but few traces of the old relation of "defender of the
people." It is, however, of importance to note that this decline in
his prominence in civil life is commensurate with the diminished need
by the people of his protection, owing to the steady increase in the
security and independence of their position.

To sum up briefly the chief characteristics of the early and obscure
period which we have been considering, I think we can truly call it a
transition period, and its history a tottering bridge from the dead
Roman municipal system of the past, to the new state and city life of
the future; from a state of society where, as we have seen, the city
had changed from a political to an administrative division, to one
where the city was to prepare itself again to claim, and eventually,
by the growth of internal resources, to gain the lost function of
sovereignty. The condition of the people during this time we have seen
to be wretched in the extreme; the dismantled city but a bunch of
comfortless dwellings; its inhabitants but a semi-servile population,
with a small admixture of refugees of a better class; the city
occupying but a subordinate place as part of the rural holding within
whose limits it stood; whatever of wealth it contained an easy if not
a legitimate prey to the turbulent spirits, whose mutual contests kept
the surrounding country in a continual state of disturbance. The only
men of any influence in the community we have seen to be the bishops,
who, while steadily gaining in rank and power, stood forth as
defenders of the people. During all this time, however, the new sap
brought by the northern conquerors has been slowly but steadily
entering into and forming the constitution of the people. The chaste
and uncorrupted Northmen have by means of legitimate intermarriage
with the best of the enervated inhabitants of the land, raised up an
almost new race, who combine in their nature the humanizing effects of
the old civilization with the love of independence and the temperate
virtues of the northern conquerors, a race willing to benefit by the
experience of the past, and resolved to carve out for itself a new and
independent future.



PART II.

ELEMENTARY SOURCES OF MUNICIPAL UNITY IN LOMBARD AND FRANKISH TIMES.


In the second part of this paper we have to consider a period of
development rather than one of transition, of growth rather than of
change. We have before us the task of tracing the advance from a
period of barbarism to one when the feudal system had obtained an
almost complete domination over the social system of Europe.
Considering the principles which lay at the base of the society of new
Europe, this system is a natural, indeed an unavoidable evolution from
the stage of barbarism and social disorganization. The confusion in
all social and economic relations consequent on the combination of the
old and the new elements in European life, had led to a state of
disintegration that could not continue. A new regulative force was
required which would at the same time have power sufficient to control
the various warring elements with which it had to deal and reduce them
to some sort of harmony, and yet which would not in its nature be in
opposition to the decentralizing spirit and the idea of individual
independence, which formed the most marked characteristic of the
dominant element of the new society. Feudalism sprang from the midst
of barbarism not by a sudden birth, but by a growth at once natural
and necessary: natural, because it was but a regulation by law of
conditions produced by the character of the people and their mode of
life; necessary, because the progress of civilization was carrying
society ahead of the stage of anarchy and barbarism in which the
overthrow of the old regime had left it.

The economic changes which were produced by the transition to the new
principles represented by the feudal system, are as great and in their
way as important as the political ones. When we say that feudalism
represents the transfer of the dominant power from a central head to
scattered members, from the capital to the castles, we speak of it in
its most prominent, its political character. But we must not forget
that this transfer also meant a great economic change in the
organization of society: that it meant a transfer of the seat of
economic importance from the city to the country; the spirit of the
times requiring, especially in the earlier stages of the development
of the institution, that the seat of wealth should follow the seat of
power. I note this now because we shall soon have occasion to consider
how important a factor, in the earliest period of the development of
the cities, their entire lack of prominence in both political and
economic affairs was to prove itself. Under the old Roman system, as
we have seen, the city was the important unit: Rome was a subduer and
an upbuilder of cities. Under the new Teutonic element the land is
what is brought into prominence, and the possessor of it into power.
The dominant member of society is the landowner and not the citizen.
In ancient society the "citizen" need own no land; in the modern
society of the feudal age, the "gentleman" could not be such without
owning land.

This opposition between the citizen, the burgher, and the landowner,
the baron, leads us to a conclusion of the utmost importance to the
whole study of city life during the middle ages. We note the universal
prevalence of the _forms_ characteristic of the feudal system, and
from this we conclude that its _principles_ were as universally
adopted. Now this is to a certain extent an error. There were certain
institutions which from the very nature of their origin and of the
principles on which they were based, must have been, at once in their
idea and in their structure, opposed to the fundamental principle of
feudalism. The Roman Church, for example, conformed itself to the
forms and customs of this system, but never lost its structural unity
and centralization, ideas founded on principles which stood in direct
opposition to those of feudalism. So it was, though perhaps in a less
degree, with the cities. Though adapting themselves in many ways to
feudal forms, here the idea of democracy was as strong in its
opposition to the dominant principle of feudalism, as ever was that of
centralization in the Church. The people, in their own conception at
least, stood out as an organic unity, and they considered their rights
and duties as matters which concerned them collectively, not
separately, as the commonwealth, not as individuals. Of course it was
long before any such opposition assumed a definite form and shape,
before even the people became conscious of its existence; but what I
wish to point out is, that it was there in fact from the beginning,
and must have formed a structural part of the development of city life
in the middle ages.

In outlining the course of the history of institutions, it is seldom
that we are so fortunate as to find definite landmarks by which we can
accurately mark the chronological course of their development. The
giving of definite dates for the progress of ideas is in most cases
both misleading and illusory, as, except in instances of violent
revolution, changes are apt to be gradual, rather than immediate and
arbitrary. But we can indicate the periods of progress by comparing
them with the contemporary political changes, and roughly designate
their eras by the dates of prominent political events. In doing this,
however, we must always remember that the dates given, while definite
from a political standpoint, are in most cases, from an institutional
standpoint, only indicative of a more or less extended period of
change. This fact being recognized, let us proceed to examine the
changes introduced into Italy by the Carlovingian rulers, and the
condition of the society upon which these changes were engrafted.

When in the year 773-774, Charlemagne, in pursuance of his idea of
universal empire, and aiding the Pope as "Patricius" of Rome, entered
Lombardy with his army, took Pavia after a siege of six months, and
shut up Desiderius in a monastery, he found in Lombard society a well
defined, if not a perfectly developed system. In all their relations
with other nations, the evidence of history proves the Franks to have
been a conquering rather than a colonizing race; consequently we may
expect to find that in their conquest of Lombardy, they rather gave
her only new rulers without materially interfering with the condition
of the inhabitants or altering their mode of life. The institutions of
the Frankish nation were similar, in many important matters identical,
with those of their neighbors across the Alps; so the changes
introduced into the Lombard system by the Carlovingian rule are, with
a few exceptions, not such as affect the integral structure of
society, but for the most part only such as refer to the character and
position of the central or ruling power.

I say with a few exceptions, for among these very exceptions are to be
found certain alterations in the government of the cities, introduced
chiefly by the necessities of the system of central government
established by Charlemagne, but also partly by the claims of
individuality, which at this time first began in the cities timidly to
call for recognition. The very relation of the cities with the central
power seems to me to be a much more important factor in their growth
during this period than is generally supposed; for it not only secured
to their inhabitants better chances of justice and protection from the
powerful local rulers, but, bringing them, through certain officers,
into direct connection with the head of the state, added not a little
to their moral importance, a condition which in a growing community is
always closely followed by an increase of material importance.
According to their size they were the seats of courts of varying
degrees of importance, and from them as centres proceeded the acts of
royal officers, both ordinary and extraordinary. Ticinum was the
capital, where in Lombard times the king had his palace.[9]

For a satisfactory study of the development of the municipal
institutions we need a thorough understanding of the organization of
society at this time, and especially of the relations which the
municipal and rural communities bore to one another and to the
government. I will endeavor to give, therefore, a description of
Lombard society about the close of the eighth century, as brief as is
consistent with a clear understanding of these relations, and as
complete as the great difficulties of the subject will permit,
pointing out, whenever they are authentically traceable, the changes
introduced in consequence of the Carlovingian conquest.

When we reach in Lombard history the period when the power of the
native kings was first overthrown by foreign arms, we are no longer
confronted by many of the problems which necessarily formed an
important part of the earlier portions of our investigation. I mean
the problems which arise in a state of society where the mass of
individuals forming it is made up of two elements, a conquering,
dominant one, and a conquered, subject one. During the two centuries
elapsed since the Lombard barbarians conquered Italy, the two races,
originally so different in their ideas and in their character, so
opposed in their customs and in their nature, have been slowly but
surely blending together, on the strength of common environment and by
the necessities of mutual relations: so that by the last half of the
eighth century, we can truly say that national differences, as such,
have disappeared, and left behind them a single race, a combination
but still a unity. We no longer have to deal with a double
nationality, with the northern conquerors and their southern victims,
with the oppressed and their oppressors. In considering the
development of the institutional life of the people, we need no longer
seek for differences, but may assume the easier task of tracing
similarities. In a word, we no longer speak of Lombards and of Romans,
but describe all that remains of both by the new word _Italians_.

It is not within the scope of this enquiry to trace the various steps
or indicate the various influences, the civilizing effect of the
Church, the restraining power of the law, by which this complete
amalgamation of two distinct races became an accomplished fact; we
need only to note that the unity of the race was achieved. Even
Macchiavelli recognizes this fact and, speaking of the time of the
Carlovingian conquest, in the brief review of the history of all Italy
which forms the first part of the first book of the "Florentine
History," he truly says that, after two hundred and twenty-two years
of occupation by the Lombards, "they retained nothing of the foreigner
save the name."[10]

But we must always bear in mind that it was not a process of
absorption of one race by another, but a process of combination, of
amalgamation; a levelling process, by which some members of the
conquered people, by natural and economic causes, were raised to the
level of their superiors; and on the other hand, some of the
conquerors, by reason of similar causes, fell to the rank of the
subject population. By manumission and by the various forms of
vassalage more or less honorable, and by gaining some economic
importance by trade and other means, many of the descendants of the
Roman population gained admission to the ranks of the Arimanni, and
obtained the full franchise by the possession of landed property. By
forfeitures, consequent poverty and ultimate pauperization, many of
the Lombard stock lost their rank and their lands and entered the same
state of vassalage with the great body of the people. We see evidences
of this change, this levelling up and levelling down, all through the
military code of Liutprand, and in the later one of Aistulf can even
more distinctly trace its progress; and without entering into further
detail, we can definitely state that, by the time we are now
considering, all traces of distinct race-origin had disappeared in the
mass of the people, and the only safe distinction that we can draw is
to say that among the families of the dukes and greater nobles, the
Lombard stock was preserved comparatively pure, and that the serf
population was, generally speaking, of Roman descent.[11]


                       KING
          +--------------+--------------+
          |              |              |
        COUNTS         DUKES         GASTALDS
                         |
          +--------------+--------------+
          |              |              |
        CUTANEI       SCABINI       SCULDAHIS
     (LATER BARONS)
      | | | | |
      | | | | +-------------------------------+
      | | | +-------------------------+       |
      | | +-------------------+       |       |
      | +-----------+         |       |       |
      |             |         |       |       |
     ARIMANNI       |         |       |       |
                 MASNADA      |       |       |
                            ALDII     |       |
                                    SERFS     |
                                            SLAVES

     The above table, while its divisions must not be taken too
     literally, will, I think, give some indication of the
     estimation in which the various classes of society were
     held. It is too early yet in the development of the feudal
     system to say that the derivation lines show the course of
     an absolute feudal tenure, and they are not meant for that
     purpose, but simply to indicate the succession of the
     inequalities of rank.

Turning now to the territorial divisions of the country at this
period, we find them practically unchanged. The _civitas_ still stands
as the sectional unit; the territory with its city still represents
the administrative division of the state. It is fundamental to a
correct understanding of the early development of communal
institutions that we should have a thorough knowledge of the meaning
of this term _civitas_; of the extent of its application and of its
limitations. I used the words "territory with its city" in defining
the administrative division of the state, and perhaps this term
describes the _civitas_ better than any single word would do. In the
Roman municipal system we have the city with its surrounding
territory, over which extends the jurisdiction of the _curia_; in the
Lombard system we have the territory, the land, in some part of which
is located a city, a fortified place.

This is to my mind the important point which settles satisfactorily
the vexed question of the dominance or the disappearance of Roman
influences. The institutions of the Lombards were similar in character
to those of the other Germanic races, and the continuance of any
overruling municipal influence among them would have done violence
alike to their traditions and to the nature of their race. The old
municipal predominance as a system disappeared, the old municipal
divisions and many of the minor forms and offices as a fact remained.
It is these latter which give some color to the arguments of writers
like Savigny,[12] who endeavor to maintain the continuance of the old
Roman _curia_. They find evidence of the continuance of old
boundaries, of many old names and many old executive functions, and
fail to appreciate that the principle which lay back of and was making
use of these old forms as convenient channels for the expression of
its power and of its control, was an entirely new one, based on ideas
fundamentally opposed to those of the civilization it had conquered.
This slight warning is necessary so as to avoid any error in the
conception of the significance to be attached to the geographical
limits of the divisions of territory we are considering.

The word _civitas_ has the same signification as _comitatus_, when
that word was used with the meaning of a territorial division; and
included all the territory, with its lands, its villages, its
fortified places and its city, which came under the jurisdiction of a
_dux_ or _judex_, or in Frankish times of a count, when we are
strictly justified in giving it the more familiar name of _county_.
From this we trace the Italian word _contado_, by the steps _comitatu,
comitato, contato, contado_. The land division here indicated is
indifferently called in the Lombard records _territorium, fines,
civitas_, or _judiciaria_. The identity of all these terms admits of
easy proof from all the documents, public and private; and numberless
instances could be cited showing an interchange of terms in describing
the same locality.

I will mention in illustration of this fact the rather neat example of
a document of the year 762, published by Brunetti[13] in his Codice
Diplomatico Toscano, in which three of these terms are used
interchangeably in the space of a few lines. It is a contract by which
a certain Arnifrid, an inhabitant of Clusium--the modern Chiusi--who
"in clusino territorio ... natus fuit," pledges himself to live on a
certain property, and says "nullam conbersationem facias nec in clusio
nec in alia civitate habitandum, nisi.... &c.," and promises to pay
fifty _solidi_ if "pro eo quod ipsa pecunia demittere presumbsero aut
de judiciaria vestra suaninse exire voluero." The contract is "Actum
in civitate suana." We here see the words _territorium_ and _civitas_
both applied to the territory of Chiusi, and the words _judiciaria_
and _civitas_ both applied to the territory of Siena, and we only need
to remember that things which are equal to the same thing are equal to
each other, to recognize the identity of the terms. If we look at
document number eight in the same collection,[14] we will further see
the territory of Chiusi referred to as "fines clusinas."

Hand-in-hand with the growth of episcopal organization we see another
term coming into use in connection with the same land division, and
this also is an administrative one, but of the church simply, and only
made use of by conversion or carelessly when applied to a civil area.
I mean the _districtus_, which term is properly applicable only to the
jurisdiction of a bishop, and designates the limits of his episcopal
power, that is, his diocese. The reasons for this term being used in
later times occasionally for the civil division, the _civitas_, are
twofold. They result, firstly, from the confusion which arose between
matters of civil and ecclesiastical jurisdiction, when political power
was given to a large number of the bishops, and when they united to
their religious duties as pastor, the judicial and sometimes even some
of the military duties of _comes_ and _judex_. And secondly, in the
important fact that in almost all cases the boundaries of a bishop's
diocese coincided more or less exactly with the limits of the
authority of the state officers; so that the division which should be
called a _civitas_ or _territorium_ from the point of view of civil
government, should be called a _districtus_ from that of
ecclesiastical government.

Where we find at once the most important and, if not rightly
understood, the most perplexing traces of the survival of the old
Roman municipal system, is in this matter of territorial boundaries.
According to the Roman system, as we have seen, the city was the
important administrative unit, and each city was surrounded by a belt
of rural lands, more or less large according to the size and
importance of the city itself. This of course resulted in a division
of the whole country into a number of districts whose boundaries were
definitely marked, perhaps even jealously guarded. Now, when the
Lombards took possession of the country, while they rejected the
principle of the municipal unit, as foreign to the character and
instincts of their race, they could not fail to see the practical
utility of using, and the actual difficulty of overthrowing, a system
of land division which custom and authority had united in rendering
alike definite and convenient. What was the result? They made use of
the old boundary lines, leaving their limits, as far as we can judge,
untouched, and substituted as the fundamental principle of their
administration, in place of the Roman idea of the _municipium_, the
thoroughly Teutonic idea of the _civitas_ or country district.
Coincident with these time-honored boundaries which served to mark the
limits of the jurisdiction of the duke and the _judex_, are to be
found those of the ecclesiastical power, of the bishop's diocese.

This statement is confirmed by the many charters, immunities, etc.,
addressed to the episcopal authorities; and direct proof of it may be
had by reference to the controversy which arose in the first half of
the eighth century between the bishops of Arezzo and Siena, which
dispute was based on the fact that for reasons definitely stated these
two dioceses formed an exception to the general rule. The strength of
the proof lies in this exception, which had a well-known cause for its
origin. Some of the documents[15] in the case, of the year 715, show
that the bishop of Siena claimed for his jurisdiction certain churches
which belonged to the diocese of Arezzo, basing his claim solely on
the ground that these churches were situated in the _territorium_ of
Siena. The bishop of Arezzo, on the other hand, claims them as part of
his diocese, on the ground that they had formed part of it ever since
the beginning of Lombard rule in Italy; and--which is the part of
importance to us--gives as the only reason for their having been
attached to the diocese of a neighboring _territorium_, the fact that
at that early date there was no bishop in the _territorium_ of Siena.
That a claim of such a character should have been based on the
argument of the natural coincidence of the boundaries of _territorium_
and diocese, is sufficient proof of the identity of these limits at
that age. In a bull of the year 752,[16] Pope Stephen II. decides to
adhere to the already existing diocesan divisions, and adjudges to the
bishop of Arezzo the churches "quae esse manifestum est sub
consecratione et regimine praefatae S. Aretinae Ecclesiae, territorium
vero est prefatae nominatae Civitatis Senensis."

We see then the perpetuation of the old Roman land divisions in the
new commonwealth through the medium of the _civitas_ and the diocese.
How long these divisions remained intact and what were the causes and
the extent of their final overthrow, forms part of the history of the
later development of the Italian communes. Here I will simply indicate
the fact, that among the reasons which led in most instances to a
departure from this system of land boundaries, are to be found some of
the most important causes for the development of freedom and
independent jurisdiction among the cities. It is to the destruction of
this identity of interests and of government which existed between
country and city, that is owed the ultimate predominance of the
latter, and its regaining its ancient position of a self-centered
unity; although in its new form we find this depending on the
principle of individual liberty, instead of being based on the
principle of government by a central power. Whether this emancipation
from the bonds of a rural dependence was brought about by the practice
later entered upon, of breaking up the counties into a number of
smaller units with the so-called "rural counts," each ruling over a
_castellum_ or fortified village; or by the fact that many of the
bishops obtained political as well as religious control over a city
and a limited area of the surrounding country, generally extending
only three or five miles beyond the city walls; or whether this
freedom was the result of the spontaneous growth of civic and economic
life within the city itself; or finally, whether it came from a
combination of all these and many minor causes, is a question
which--for the early period of the development at least--the progress
of our investigation will answer for itself.

It will, however, be impossible for us to understand thoroughly the
relations of the city under Lombard and Frankish rule to the central
and to the local government, unless we know somewhat of the local and
state officers who exercised jurisdiction within the territorial
limits just described. By a consideration of their special powers and
of their special duties, we must learn all that we can know with any
degree of certainty with regard to the position of the city in these
times. With this in mind, let us first examine the office whose
functions it is at once the most difficult and the most important for
us to understand in all its bearings--that of the _Judex_. We must
consider it not only in the relation which it bears to the higher
grade of officers, the Lombard duke and the Frankish count, but also
in its relation with the lower officials who severally enjoyed more or
less of the powers attached to its possession, namely, the gastald,
the sculdahis, the scabino, and even the rural counts and the bishop.
And in tracing its development we must note the influence it bore on
the growth of the municipal idea, and also its connection with the
political jurisdiction, commonly combined with it in the person of a
single official.

In considering the institutions of a comparatively crude state of
society, such as existed in Europe in the early middle ages, it is
misleading if not impossible to differentiate to any great extent the
various functions and kinds of power which were commonly centered in
the same individual. Consequently the only safe way to give a clear
idea of the position and the powers of the _judex_, is to give a
description of the various offices to which judicial authority was
attached, in degrees more or less complete, corresponding to the
social and political importance of the person exercising this
authority.

In the Lombard system, at the head of each _civitas_, as lord and as
judge, was the _dux_, or duke. His title and his office being but the
relic of his original high position of leadership in the army of the
invasion, when his command was only subject to that of the king, the
leader-in-chief of the army-nation and head of the military
constitution, he held directly from the king, attended the royal
_placita_ as the king's vassal, and held _placita_ of his own within
his own jurisdiction, and over which he presided in person. Beyond the
duties of his own particular jurisdiction his chief office was to
assist the king by his presence and his counsel, when the king gave
his judgments at the annual assembly in March, at the capital Ticinum.
The importance of this concurrence of the _judices_ in all the king's
decrees and official acts is illustrated by the fact that cases are
rare in which this concurrence remains unmentioned. The usual practice
is to introduce in the prologue which is commonly attached to the laws
given out during each year of the king's reign, after the mention of
the date "Kalendiis Martiarum," some such expression as "cum nostris
Judicibus";[17] or "ad nos conjungerentur Judices";[18] or "per
suggestionem Judicum";[19] to which is sometimes added the formula
"omniumque consensum,"[19] or "cum reliquis nostris Langobardis
fidelis." That legislation was not considered valid until such consent
and advice was obtained, we can see from the prologue to the laws
issued in the thirteenth year of the reign of Liutprand, in which he
refers to certain important "causae" which had come under his
jurisdiction, and for which additional legislation was necessary, the
laws already existing failing to reach them. To meet the exigency new
laws are enacted, but the king especially states that the cases must
remain in abeyance until the new laws are confirmed by the _judices_
at the next assembly in March. In speaking of these "causae" in the
above-mentioned prologue to the laws, he says: "Proinde providimus eas
usque ad suprascriptum diem Kalendii Martiarum suspendere dum usque
nostri ad nos conjungerentur judices," etc.[20] This attendance at the
royal _placita_ represents the most important of the legislative
duties of the _judex_ outside of his own jurisdiction.

Of other duties which caused him to leave the seat of his authority,
the only ones we need here consider are his military duties; and with
regard to these it will be sufficient to point out that the _judex_
was the leader in war of the vassals and lesser lords, and indeed of
all the inhabitants of the _judiciaria_ who were entitled or
compelled, by the forms of their tenure, to bear arms. Ample proof of
this is to be found throughout the law codes, but we need not pause to
cite such confirmation, if we remember the natural evolution of the
office of _dux_ from his position in the original Lombard military
system. As a good example of this military leadership we may refer to
the provisions of the twenty-ninth law in the sixth book of the laws
of Liutprand.[21]

What is of the greatest importance to us, however, in bringing out the
relations of the cities to the rest of the community in Lombard and
Frankish times, is the position of the _judex_ as duke and as count
within his own _judiciaria_, that is, within the _civitas_ of which he
was both lord and judge. It was through him, or perhaps I should say
chiefly through him, that the city was at this period connected with
the state; and it was principally by the exercise of the functions of
his office that the city formed a part of the state. His official
residence, in the majority of cases, and his courts, were situated
within the city's limits; thus making the official machinery of
government a part of the city life, and causing the city to become an
actual if not a legally recognized part of the constitution of the
state. As far as this investigation is concerned, this represents the
prominent feature of the power and position of the head of the
_civitas_. We must be careful, however, to avoid any confusion of
ideas as to the importance which it gave to the city as a municipal
unit or as a corporation. It was in no way what we could call a
municipal government, even admitting a rather loose interpretation of
the term, as the supporters of the theory of the survival of the Roman
curial system would have us believe.[22] The _judex_ may be called
"the highest municipal officer among the Lombards," and this
designation still be correct, though perhaps misleading. He was the
highest officer of the locality, and his official duties were for the
most part carried on within the city; but the leading fact we must
keep prominently before us is, that he was the head of the whole
_civitas_, and not in any sense of the city as such: and further, that
his powers over the rural portions of the _civitas_ were in no sense
added to any purely municipal powers he may have possessed; but, on
the contrary, if we are to draw any distinctions, the municipality
formed a part of the land division. That the whole _civitas_ was
commonly named after the largest town contained within its borders,
and that the seat of power was generally placed within the city walls,
are facts too evidently brought about by motives of convenience and
expediency and by the force of old association, to lead to any
confusion in appreciating the proper place of the city. Where there
were to be found buildings suitable for the residence of the _dux_,
and where was located the largest collection of individuals, was
manifestly the most appropriate place for holding the courts and
settling the disputes of the inhabitants of the whole _civitas_, and
this formed a natural centre for the machinery of government. But
every inhabitant of the _civitas_ had equal rights with the townsman
proper, and, as in the old Greek [Greek: polis], the most remote
countryman dwelling on the borders of the _civitas_, if he possessed
the franchise, was as much a citizen of Padua, Siena or Milan, as if
he dwelt within the walls of the city which gave its name to the whole
_civitas_.

A consideration of these facts brings out two important points, which
I will briefly indicate before passing on to a little more detailed
treatment of the powers and the duties of the _judex_. In the first
place it has been made clear that at the time under discussion nothing
that could correctly be called a "municipal system" existed in
Lombardy, and the city, _as such_, had no independent existence or
independent relations with the state. And secondly, it cannot but be
manifest that the position that the city did occupy as actual, if not
necessarily as legal, centre from which issued all the administrative
functions of the district, the residence of the chief authority and
the seat of his courts, would have a marked tendency to increase
slowly, perhaps imperceptibly at first, the importance of its position
at once in the _civitas_ and in the state, and at the same time to
improve the character of its inhabitants and in time increase their
wealth. That this ultimately came about the development of the later
independent communal life is a proof, and the tardy steps by which
this was attained but serve to show the difficulties consequent on so
slight and so feeble a beginning.

The obscurity which promptly descends on the brain of the intelligent
reader who endeavors to gain a clear idea of the state of society or
of the administration of government in these early ages of Italian
history, makes the careful student very skeptical of any precise
presentation he may find of them, and causes him to be particularly
cautious and proportionately diffident in making, himself, any very
definite statements concerning them. If he be a wise man and wish to
make his investigation of some use to others, he frequently says "it
seems probable," and he particularly avoids mentioning dates which are
fixed and immovable. If this may be said of all matters not belonging
simply to the narrative portions of history at this period,
particularly true is it of the different functions attributed to
various officers of local government, whose very titles we sometimes
have to infer from their duties, and whose duties we often have to
infer from their titles.

To these the _judex_, though the most prominent, cannot be said to
form an exception. That he was the head of the district judicial
system has in part been already shown, and will come out more clearly
when we come to define the powers of some of his subordinates. His
leadership in war we have seen to be but the natural continuance of
his original office; and that as _dux_ he was to be ranked among the
first nobles of the land, the "optimates," the "viri illustres," we
can see from the following passage in the laws of Liutprand, when in
the prologue to the third book already quoted, he gives forth the
edict with the judges as "una cum illustribus viris optimatibus meis
ex Neustriae et Austriae et Tusciae partibus vel universis nobilibus
Langobardis."[23] Although the position of the _duces_ as nobles of
the land never altered, their power relative to that of the king
suffered many modifications. The ducal power--"principes" of
Tacitus--preceding among the Lombards that of the king, we see the
dukes exercising much greater control in the earlier stages of the
monarchy: even, on the death of Clefis--576--actually establishing a
sort of aristocratic republic, under the leadership of thirty dukes,
which lasted for ten years; after which time, on the event of a
dangerous war with the Greeks and the Franks, Authari, the son of
Clefis, gained the throne by election; the dukes giving up to him,
says Paulus Diaconus,[24] the half of their estates for the support of
his dignity, retaining, however, the rest, not as servants of the
king, but as "principes" of the people, an important distinction.
Agiluf--591 to 615--originally duke of Turin, met with much opposition
from the power of the dukes; but when we come to the time of
Rhotari--636 to 652--we find their power already declining, and in the
eighth century, as for example under Liutprand--712 to 736--the laws
show them reduced to the position of the other _judices_, but still
representing a high aristocracy whose consent was, as we have seen,
necessary to all acts of the king.

The most important of the functions of the _dux_ as _judex_ was
holding the _Curtis Regia_ or _Curtis Ducalis_, in the largest city or
"urbs" of every _civitas_. Here, in conjunction with his subordinates,
he heard all cases which did not go up to the king for judgment, and
here was centered the fiscal administration of the _civitas_. To
describe in detail the composition of these _curtes_, their
jurisdiction and methods of procedure, would require a whole chapter
of no mean proportions, and however interesting in itself, would be
out of place in the present investigation. All that it is needful for
us to consider is the relation of these _curtes_ to the municipalities
in which they were located. Of their location within the city walls
the proofs to be found in numbers of the old documents are to me
conclusive. I will give a few examples, however, commencing with two
from the documents which have already been quoted from Brunetti,
relating to the dispute between the bishops of Siena and Arezzo. In
the first of these[25] we see that in the year 715, the king's
_majordomus_ Ambrosius interferes "in Curte a Domini Regis" at Siena,
in opposition to the local bishop and gastald; and in the second[26]
we find the royal notary Gunthram forbidding a fresh examination of
witnesses "in Curte Regia Senensis." In a document of the next
year[27]--716--we find "Ebugansus, Notarius regiae Curtis," taking
part in the procedure in a case between the bishops of Pistoia and
Lucca; and a little later, in the year 756, is mention of an exchange
of property between "civitis regia lucencis" and the church situated
in that city.[28] In the "Opusculum de Fundat. Monast. Nonantulae,"
published by Muratori,[29] we find a donation by King Aistulf to that
monastery: "prope castellum Aginulfi, quod pertinet de curte nostra
lucense, et duas casas masaritias de ipsa curte"; and "granum ilium,
quod annue colligitur de portatico, in Curte nostra, quae sita est in
Civitate Nova."[30] In Carlovingian times Charles the Bald, in the
year 875, in the "Chronica Farfense,"[31] appears as saying, "in Curte
nostra infra Castrum Viterbense": elsewhere "curtis regie Viturbensis"
is spoken of[32]: and later, in 899, Berenger gives to the bishop of
Florence "terram ... pertinentem de curte Regis istae Florentiae"[33]:
and finally, not to multiply examples, I will mention a privilege of
Karloman's, published by Ughelli[34], by which he gives to the bishop
of Parma certain regalia: "id est curtem regiam extructam infra
civitatem Parmam cum omne officio suo," etc. From even these few
instances we can see the connection between the _Curtis Regia_ and the
city which gave its name to the _civitas_, a connection the importance
of which we must not fail to appreciate, in consideration of the great
influence which it exercised in the future development of the
municipal unit from a beginning so insignificant.

Of some importance in connection with the early history of the cities
are the questions which arise in relation to the fiscal duties and
privileges of the _curtes regia_ and its officers. In it was centered
the fiscal administration of the kingdom; and its officers, in the
various grades from the _dux_ downward, received and were responsible
for the revenues of the state. So prominent a part belonged to this
form of the functions of the _curtes_ that it is quite common to hear
the revenues themselves, by a transposition of terms, called by that
name, or by that of _palatium_, a word sometimes found even for the
_curtes regia_ in their proper general sense; but this, from what I
have been able to gather concerning its legitimate use, should
properly be applied only to the residence, or by conversion the
revenues of the king himself[35]. What is of interest to us in this
matter is the fact that the _curtis regia_ fell heir to the _publicum_
or communal property of the old Roman _curia_, when these were
overthrown by the Lombard conquest.

In considering this phase of civil administration under the Lombard
system, we are again brought face to face with the old question of the
survival or non-survival of corporate existence among the cities. For
if it could be proved that the municipality in its corporate capacity
retained the communal property and administered it, there would appear
to be good grounds for the assertion of the continuance of some form
of quasi-independent municipal government; but if, on the other hand,
it were found that the property of the municipality passed to the new
head of local administration or to the central power, it would be
evident that the continuance of the municipal system as such was a
logical impossibility; for, deprived at once of its property and of
its revenues, it would have had no vitality to keep it from a speedy
end.

In investigating a question of this nature from the sources at our
disposal in a period of history so obscure, we cannot expect to find
any definite statements sufficiently precise to set at rest at once
all opposition and discussion; but after considering the character of
the people we are investigating and studying their institutions, and
after a careful examination of the laws and records which form the
sources of our information, we are, I think, in a position to be able
to give a sufficiently decided opinion as to whether a particular set
of facts or conditions could possibly have existed in a state of
development and in a society of a given character. Thus it is in
regard to the matter in hand. From the numberless cases in which the
_publicum_ is mentioned in the documents from which we draw our
materials, it seems to me possible for a critical examiner to come to
but one conclusion, if, as is quite essential, he take into
consideration the unmistakable spirit of these writings, and if he
give a legitimate interpretation to the various terms employed. To
cite in direct proof any individual instance is, perhaps, impossible;
but indirect evidence is forthcoming in abundance, and of a character
to be, to me at least, entirely conclusive. The conclusion reached is,
then, that the king and the dukes were the successors of the old
_curia_ in the possession and the administration of all properties and
revenues, taxes and fines formerly belonging to the organized
corporations of the Roman municipalities, and that the _curtes regiae_
were the channel through which these were collected, divided and
expended.

The grounds on which this assertion is based are the continual
recurrence of examples of functions of a fiscal character being
exercised by the head of the _civitas_ and his officers, and by them
alone; and it appears to me that it could only be by a complete
misunderstanding of the spirit of the early writings, and by a
comprehensive misapplication of the terms used in them, that these
functions could be referred to any other power. These functions of the
administration may be grouped under three main heads, viz: 1. Fines
and forfeitures, which, of course, played a very prominent part under
the Teutonic system of composition for offenses of a criminal nature;
2. Taxes and privileges, by which is meant feudal rights, dues, etc.;
and 3. Buildings and lands belonging to the crown or to the head of
the _civitas_ as a public officer.

Of the fines and forfeitures paid into the _publicum_, we find that a
part went to the royal treasury and a part to the _judex_, and in some
cases to the informer or the prosecuting officer; and at different
times we find these proportionate amounts definitely defined--as, for
instance, in the time of Charlemagne two parts went to the king and
one part to the count who acted as _judex_;[36] this we know from two
of the Lombard laws of that emperor.[37] In one of these,[38] speaking
of those who evaded military service, he says: "Heribannum comes
exactare non praesumat: nisi Missus noster prius Heribannum ad partem
nostram recipiat, et ei," the Count, "suam tertiam partem exinde per
jussionem nostram donet."[39] We even find evidence of quite a large
amount of liberty used by the _duces_ in the ultimate disposal of
property coming under their jurisdiction by forfeiture, the more
powerful making use of it precisely as if it were private property.
For example, in the Chronica Farfensis[40] appears a case judged by
Hildeprandus, _dux_ of Spoleto, in the year 787. A certain nun named
Alerona, for having married a man named Rabennonus, "secundum legem
omnis substantia ipsius ad Publicum devoluta est"; a little later
Rabennonus, for having killed a man, "medietas omnis illius
substantiae ad Publicum devoluta est." In consequence, in poetic
justice and for the good of his soul and the king's, Hildeprandus
quite arbitrarily presents "omnem praedictam illorum substantiam,
qualiter secundum legem juste et rationabiliter, ad Publicum devoluta
est," to the Monastery of Farfa "pro mercede Domnorum nostrorum Regum
et nostra." Here, as in many other cases, we see the _dux_ making
gifts of property belonging clearly to the _publicum_, to persons
favored by him and for his own benefit. Such a condition of affairs
would certainly never have existed had public property been
administered by authority other than that of the _dux_.

With regard to the revenues falling under the second of the rough
divisions we have indicated--taxes and privileges--it is easier to see
why differences of opinion should have arisen; for here, especially in
matters relating to the collecting of taxes and dues, we are
confronted with the names of a large number of lesser officials and
subordinates of the _judex_, some of which are undoubtedly taken from
the like officers existing in the old Roman curial system. But this
survival of names, and in some instances of offices, need cause us no
alarm, for it coincides exactly with the theory presented, namely, a
continuance of many of the old _forms_ of administration controlled by
an entirely new _principle_ of government. There are certain minor
functions necessary for the support of the state which must be carried
on in much the same manner, whatever be the character of the governing
power--certain subordinate offices whose duties must be performed
under a republic or under a despotism. Taxes may be collected by
widely differing methods under the two systems, but there must always
be the tax collector and the tax assessor. We can, however, see at a
glance the weakness of any argument which contends that because the
name and even the general duties of the tax gatherer were the same in
each case, that the whole system of administration of the taxes or of
the community were necessarily identical or even closely allied in
character.

It is here we see the weakness of those writers who insist upon the
continuance of the Roman _curia_ in the municipalities of the Lombard
kingdom. They seize upon a few names, relics of Roman rule, and from
them generalize a complete system of taxation and administration. That
the existence of any such system is alike contrary to fact and to the
whole nature of the Lombard people, any critical and impartial study
of the sources of government revenues at this time will make clear. It
would be out of place to burden a paper of this character with the
results of a minute investigation into the fiscal relations of the
rulers and the people when this has no immediate connection with the
development of municipal government; but I will state that a careful
examination of all available sources, including documents and
statutory enactments, both public and private, reveals, to my mind, a
theory and a system of raising the revenues of the state closely
allied in both principle and detail to feudal forms and feudal ideas,
and having little in common save the names of a few of its officers,
with the ancient methods of collecting the taxes peculiar to the Roman
municipal constitution.[41]

In general terms, the collectors of the revenues were called
_telonarii_, or _actores, exactores_ or _actionarii_, etc., and the
taxes they collected were the usual feudal dues, fines, forfeitures,
compositions for service, etc. The nomenclature of these various
officers and of the different duties they had to levy, varying as it
did with regard to locality, and more especially with regard to
time--the Franks introducing an entirely new set of names for
institutions often identical in character to those displaced--presents
an amount of confusion which, fortunately, it is not necessary for us
to endeavor to penetrate; but, having stated the foregoing general
conviction with regard to the fiscal system, we will now pass on to a
consideration of some of the lesser offices held within each _civitas_
by the deputies and subordinates of the _dux_. These, of course, were
connected, in degrees more or less close, with the different _curtes
regiae_, and with the _placita_ held in the various _civitates_
commonly about three times in the year. Some of the officers, like the
_vice-comes_ found to have existed in many localities, are simply
deputies of the _dux_, or representatives of his person, and hold
their office simply by virtue of his will and under a somewhat
arbitrary tenure; others, like the gastald, the _sculdahis_, and later
the _scabinus_, represent offices which formed an integral part of the
constitution of the government, and appointment to which, whether made
by the _dux_ or by the central power, involved a necessary duty of a
determinate character. An accurate determination of the relative
positions of these various minor officials, of the extent of their
jurisdiction and of its limitations, presents one of the most
difficult problems which the student of these dark ages of history is
called upon to solve. The peculiar character of the sources from which
we have to derive all our information makes it quite possible for all
writers on the subject to disagree with regard to details, and leaves
a wide margin for discussion even on the important characteristics of
the various offices. Avoiding as much as possible the points of
controversy, I will endeavor to give the general features of the more
important of these offices, the conclusions given in each case
resulting from an examination of the different theories held and of
the sources on which these are based.

The officer who seems to have ranked next in importance to the _dux_
within the limits of the _civitas_ is the gastald, who goes
indifferently by the name of _gastaldus, castaldius_, or _gastaldio_.
His powers were of a judicial character, and he shared with the _dux_
the title of _judex_; but whether he enjoyed the full prerogative of a
_judex civitatis_, or whether his judicial functions were of a more
limited character and referred exclusively to matters of a fiscal
nature belonging to the _curtis regia_ or the _camera_ of the king, is
a question to which the evidence to be gathered from the law codes
gives no decided answer.[42] It seems probable, however, from the
importance seemingly attached to the holders of this title in the many
cases in which they are mentioned in the old laws and documents, that
their jurisdiction was of a broader character than would be implied by
a restriction to purely fiscal functions; in fact, that it approached
more nearly to the power of the _dux_ and _judex civitatis_, though
being in some way of less extent or possibly supplementary to it.
Perhaps the distinction would come out more clearly if we said that
the office was characterized by its relations to the fiscal functions
of the state, but that its duties and privileges appear not to have
been restricted to affairs of that nature. It is certainly true that
very many instances occur in which the duke and the gastald are
alluded to, whether in laws or in contracts, in precisely the same
terms and in positions which would seem to indicate an almost perfect
equality of dignity. As, for example, in a meeting between Liutprand
and Pope Zacharias, described by Anastasius Bibliotecharius,[43] where
dukes and gastalds are together reckoned among the _judices_: here the
king goes to meet the pope "cum suis judicibus," and gives him as an
escort "Agripandum ducem Clusinum, nepotem suum, seu Tacipertum
Castaldium et Remingum, Castaldum Tuscanensem." In spite of this
apparent equality, however, it seems to me nearer the truth to
consider the position of the gastald as an inferior one to that of the
_dux_, especially in Lombard times, before that official was replaced
by the _comes_ of the Carlovingians.

The important point which it is necessary to emphasize in this
connection is the fact that the gastald held his tenure, not from the
_dux_ as his subordinate, but from the king in person, and for this
reason can more fitly be compared with the later count than with the
_dux_ of the Lombards. Consequently it is in the matter of tenure that
I think is to be found the difference in power between the two
officers. In addition to his official authority, the _dux_ was
possessed of a power and an influence entirely his own, derived quite
as much from the number of his vassals and his position in the
_civitas_ as from the grant he received from the king. At home he was
a powerful lord, and though he, of course, owed fealty and service to
the king, he was by no means a king's servant, like his successor the
Carlovingian count. The gastald, on the other hand, was eminently a
servant of the central power; and whether or not he was engaged
exclusively in looking after the fiscal interests of the masters who
employed him, he had no power and no influence except such as he
derived from the source of his authority. He was a king's minister and
nothing more, and we can easily appreciate that the amount of power he
was enabled to exercise could never exceed the amount of influence in
local affairs possessed at any particular time by the central
government, whose representative he was.

But the very nature of the source from which the power of his office
is derived is what connects it vitally with the subject of our
enquiry. We have seen the _dux_ as head--in the earliest times almost
independent head--of the whole _civitas_, including rural and city
jurisdiction. We have seen him as an official, depending from the
king, it is true, and holding the king's _placita_ and executing the
law, but also holding _placita_ of his own; appearing as a powerful
local lord, and exercising almost arbitrary power in the regulation
and the distribution of the public property of the commonwealth over
which he ruled; in fact, a descendant of the old _duces_ of the
Lombard barbarian host, who, perhaps, even antedating the royal
office, held their power and their position as princes and chosen
leaders of the people, rather than as appointees or dependents of any
higher authority. In the gastald, on the other hand, we have an
official of an entirely different type--one not belonging to a
powerful class of lords or leaders which traces its origin to the
spontaneous choice of the people or army, but one who gets his
appointment at the will and in the interests of the central
government, and is commissioned to exercise certain functions of the
administration as an assistant to, perhaps even as a check on, the
power of the local head.

Such an official was naturally located at the place where the district
courts held their sessions, and where the fiscal duties which he
especially had in charge were most easily executed. As we have seen in
the case of the _dux_, convenience points to the _urbs_ of each
_civitas_ as a natural centre, and consequently here again we find the
office of gastald as another agent in bringing the municipal division
into prominence; but doing this, we must always remember, simply from
the fact of convenience or fitness, and not in any sense as a matter
of constitutional necessity. Like that of the _dux_, the jurisdiction
of the gastald was exercised over the remotest farm of the _civitas_
as much as over the palace in the city: _de jure_, the city gained
nothing by the circumstance of its being the centre of the
administration of any office; but, _de facto_, the holding of such a
position can easily be seen to have been an important element in its
growth and development.

This fact is even of greater importance in the case of the gastald
than in that of the _dux_, because, on account of the elimination of
the character of local ruler, which was indissolubly attached to the
office of the latter, the gastald brought local affairs into direct
relation with other parts of the social system of the kingdom,
especially connecting them with the king or centre of the whole. Such
a connection, as may be inferred from what has just been said, while
legally true, of course, of the whole _civitas_, had practically the
effect of bringing the cities chiefly into relation with the rest of
the Lombard constitution; and, consequently, some writers point to the
office of gastald as the connecting link between municipal life and
the new state life of the Teutonic system. This statement seems to me
to be true except in so far as it makes the gastald the only
connecting link. For we have already seen the _dux_ holding the same
relation, only in a less direct manner, owing to the intrusion of
other interests belonging to his position; and we shall shortly have
to consider the _scabinus_, another local officer, who, under
Carlovingian rule, accomplished even more in this direction than the
gastald. I do not wish to fail in appreciation of the important
influence of this office in the development of the slowly growing idea
of individuality in the cities of Lombardy, only to point out that it
was not the only "connecting link" between the municipal units and the
state as a whole.

In passing to a brief characterization of a few of the subordinate
officers, I must not omit to mention the fact that the gastald had
also certain military functions attached to his office. When called
upon by the king he took command in the army, together with the minor
officers who were under him in his jurisdiction, such as the
_sculdahis, saltarius_,[44] etc. We have confirmation of this in the
constitution "promotionis exercitus" of Lewis II.,[45] which says "ut
nullum ab expeditione aut Comes aut Gastald, vel Ministri eorum
excusatum habeant"; and in the life of Gregory II., Anastasius
Bibliotecharius[46] tells that at the overthrow of the _castrum_ of
Cumae with the help of that pope, "Langobardos pene trecentos cum
eorum Gastaldione interfecerunt." In military affairs the command held
by the gastald seems to have been lower than that of the _dux_, the
leader of all the troops furnished by the _civitas_. A right of appeal
to the _dux_ existed for the _exercitalis_ who was oppressed by the
gastald, as shown by the twenty-fourth law of Rhotaris,[47] which
says: "Si Gastaldius exercitalem suum contra rationem molestaverit,
_Dux_ eum soletur." In a case of oppression by the _dux_, the gastald,
on the other hand, could bring the matter before the king.

Before considering the changes introduced by the Carlovingian rule,
let us cast a hasty glance at a few of the minor officers who acted as
subordinates of the _judex_ in administering the affairs of the
_civitas_. As their relations to the urban portion of the Lombard
kingdom, which is the special object of our study, were either slight
in themselves or else so closely connected with those of their
superiors as not to merit any particular description, I will merely
mention the names of a few of them and indicate their duties. The
officer who came next in rank to the _judex_, and who, in a
subordinate capacity, assisted him especially in administering the
judicial affairs of the _civitas_, was in Lombard times called the
_sculdahis_, and in Carlovingian times the _centenarius_. Under him
were the _saltarius_ and the _decanus_. The _sculdahis_ acted as a
local officer under the _judex_, having limited judicial, police and
military powers. His jurisdiction was confined to the small fortified
towns and villages of the _civitas_, where he administered justice and
collected fines, forfeitures, etc., in much the same manner as did the
_judex_ in the largest town of the _civitas_; his judgments, however,
were not final, but always subject to appeal to a higher authority:
"Si vero talis causa fuerit, quod ipse Sculdahis minime deliberare
possit, dirigat ambas partes ad judicem suum."[48] There were several
_sculdahis_ in one _judiciaria_, and cases were often tried before
more than one,[49] though each of the smaller local units seems to
have had such an officer. Paulus Diaconus[50] speaks of "elector loci
illius, quem sculdahis lingua propria dicunt, vir nobilis," etc.

These rural divisions seem sometimes to have been called _sculdascia_,
for we have a diploma of Berengar I., of the year 918, given to the
monastery of Sta. Maria dell' Organo,[51] where is mentioned "pratum
juris imperii nostri pertinens de Comitatu Veronensi, de Sculdascia
videlicet, que Fluvium dicitur"; and in a document published by
Ughelli,[52] in speaking of the bishops of Belluno, "Sculdascia
Belluni" is used. In Frankish times the _centenarius_ held the same
position as the _sculdahis_ of the Lombards: his jurisdiction was
similarly limited to minor offences; all cases involving capital
punishment, loss of liberty, or delivering of _res mancipii_, being
handed over to the count's court according to the legislation of
Charlemagne.[53] The _decani_ and _saltarii_ were subordinates of the
_centenarii_ and _sculdahis_. They both presided over smaller local
divisions than the _sculdascia_, and acted as deputies. In the laws of
Liutprand,[54] speaking of a runaway slave, we are told that "si in
alia judiciaria inventus fuerit, tunc decanus aut saltarius, qui in
loco ordinatus fuerit, comprehendere eum debeat et ad sculdahis suum
perducat, et ipse sculdahis judici suo consignet." The _saltarius_
seems to have been originally a sort of guardian of forests, "custos
saltuum"[55] or "silvanus";[56] and the name of the _decanus_, like
the Frankish _centenarius_, is a survival of the old decimal division
of the army and people. These minor officers, as well as other
subalterns of the _judex_, are often met with under the common name of
_actionarii_, which includes also the different sorts of _exactores_,
_adores_, _advocati_, and all the lesser officials of the _fiscus_.

In the course of this investigation I have already referred to, and in
a certain measure characterized, the changes introduced into the
Lombard system of government consequent on the kingdom being absorbed
into the great empire of Charlemagne. I have said that, owing to the
similarity of institutions between the Franks and the Lombards, the
changes made consisted rather in differences in the manner of
enforcing the control of the central power than in any alteration in
the institutional life of the people, but that there were certain
exceptions to this general rule, which, in their mode of operation,
though not in the intention of their author, materially affected,
indeed greatly accelerated, the growth of individual life among the
cities. We must now consider the nature of these exceptions.

Under the Lombard system we have seen the administrative unit of the
state to be the _civitas_, with its administrative head, the _dux_, at
different times enjoying a greater or less degree of independence from
control of the central power. We have seen the _dux_ lord as well as
judge in his own jurisdiction, and standing as the successor of the
military leader chosen by the people, instead of holding the position
of king's servant; this place being more properly filled by the
gastald, who cared for the fiscal interests of the central power,
whose appointee he was. Such a form of government, it can be readily
seen, left no room for any strong development of the principle of
centralization, and no scope for the exercise of any decided power or
even of general supervision by the central authority. The heads of the
_civitates_ were the king's _judices_, it is true, and assembled to
assist him in judgments at his general _placita_ in the March of each
year; but they bear the character also of local lords of no mean
importance, and in some cases possessed of no inconsiderable amount of
power. Such a degree of individual influence--perhaps I should
exaggerate if I called it individual independence--was, however,
little suited to the idea of a universal centralized empire, which was
the forming principle of the government of Charlemagne. While
recognizing the necessity of retaining the fundamental institution of
a division of the state into _civitates_, and of governing it by means
of the heads of these divisions, he wished to eliminate from these
officers all the characteristics of local magnates, and to reduce them
to the more easily controlled position of servants, and dependents of
the king. This object he accomplished most satisfactorily by changing
the dukes or local lords into counts or king's men, by appointing a
Count of the Palace for Italy, and by extending to that kingdom the
perfectly organized system of central control by means of the _Missi
Dominici_, with the workings of which in the other parts of his great
empire the student of history is too well acquainted to need any
description here.

The immediate changes in the life of the people consequent on the
introduction of this system were not considerable, if we except a
great improvement in public order and a marked advance in the
equitable administration of justice; but it needs no great foresight
to see that the ultimate effects on the position held by the municipal
units in the community could not fail to be important and
far-reaching. The new officer, the count, stripped of all the
importance that his predecessor, the duke, had enjoyed as lord of the
country over which he ruled, was placed in each city to govern, in the
king's name, it and its _territorium_. As long as the empire of
Charlemagne retained its integrity, and as long as the reins of
central government were held by a strong hand and the control it
exercised was felt to be positive and real, the change in the
character of the local governor was of little moment; but as soon as
the power of the central government weakened--during the inglorious
reigns of the immediate successors of the great emperor--its hold on
the administration of the local units slackened immediately; and in
proportion as the vitality of the new central control diminishes, we
see appearing the effects which must always result when the strong
hand of an active central power is removed from a system of
administration which had been based on the exercise of such a power.
These effects are the increased importance--I may now say the
increased independence--of the local units; of these local units
themselves as distinguished from the heads who rule over them.

The change had made these units more organic parts of the state than
they had ever been before: we have seen them first made prominent by
being the seats of the rulers of the _civitas_, and now we are to see
them gain a more significant advance by coming into relation with the
head of the state directly, instead of through the personal power of
their lord. For the local ruler has yielded his individual
pre-eminence to the central government; and when this fails to
maintain its authority, in any community whose inhabitants are capable
of fostering the seeds of independence once sown, it is difficult if
not impossible for a successor to repossess himself of the privileges
which have been forfeited. In any state where the seat of central
authority is distant or its power only exercised feebly and at
intervals, the local units secure much greater independence and
importance, through the very necessity of performing many functions
left unheeded by the ruler of all; and if the people are self-reliant
in character, they will in time develop a sort of self-government
which, although it would not at first think of questioning the
theoretical right and overlordship of the central power, will
eventually brook but little interference with its modes of procedure
and with its exercise of functions, which the lapse of time has
transformed from enforced duties into jealously guarded privileges.

This is the keynote of the later history of the Italian cities. This
it was, and not any real lack of patriotism, which made them choose a
German emperor instead of an Italian king. There was no room at that
time for the idea of Italian unity, as we now understand it: the
nature of the people alone would have rendered such a thing
impossible, even if we leave out of account the fact that Italy was
the meeting-ground of the two great powers of the mediaeval world, the
Pope and the Emperor. Italy then must have had two masters, or have
been the slave of one. The same spirit of civic independence which
caused the development of Ancient Greece by preventing the universal
rule of one power, caused the Italians, under different conditions, to
pit one master against another to attain the same end. Even Liutprand,
the old historian of the tenth century, recognized this. In the first
book of his "Historia" he says: "The Italians wish always to serve two
masters, in order to restrain one by means of the terror with which
the other inspires him."[57] By means of holding in their hands the
balance of power they hoped to rule their rulers; and to attain this
object was the only reason which ever prompted the cities to unite
with any degree of harmony. Local independence was what they aimed at,
and their shrewdness showed them the only possible means in that age
of securing it.

These results could hardly have been attained if society had remained
such that the prominence of the local divisions was dependent on the
prominence of the respective heads of these divisions; but the
character of their local rulers once changed, and their powers in a
great measure absorbed by the act of a strong central power, when that
power fell to pieces it was much easier for the local divisions, as
such, to increase their independence, and to utilize the advance they
had made, by means of their more direct relation to the central power,
to gain a position which they would enjoy in spite of the efforts
alike of that power and of their old rulers. Such a position would not
be reached except by means of great struggles and by passing through a
period of great disintegration and of fierce internal strife between
opposing factions, such as in the history of the Italian communes is
represented by the dark period between the fall of the last of the
Carlovingians and the election of the first German emperor as king of
Italy; but once attained, the character of the people who accomplished
it would ensure its permanence, as long as they retained those
principles of independence which had made them victorious in the
struggle. After this short discussion, in which we have traced the
ultimate effects of the action of Charlemagne in changing the dukes
into counts, let us look at another feature in the field of city
government introduced by him, the new office of the _scabinus_ or city
judge.

According to the theory of judicial procedure among the Teutonic
nations, judgment in criminal cases was given in the open court or
_placitum_, where, besides the regular judges, all or any of the
freemen within its jurisdiction were supposed to concur in the
judgment and sentence. How far this method of arriving at judicial
decisions was carried out in practice depended largely on custom and
other local influences, and consequently varied greatly in different
countries and with different nations. I do not propose to enter into
the discussion[58] of the existence of these "judicators"[59] in
Lombardy in the eighth century, but will only say that it is certain
that before the Frankish conquest there did not exist a class of men
whose business it was to assist the judge in disposing of cases. If
through ignorance of the law or for other reasons he was unable to
come to a decision, "si vero talis causa fuit, quod ipse ...
deliberare minime possit,"[60] he could call some of the freemen to
assist him: "advocis [advocet] alios ... qui sciunt judicare,"[61]
etc., but this seems, in later times at any rate, to have been a
privilege to be used at discretion, and the persons summoned were not
regularly appointed officers of the court. The Lombard codes are
silent with regard to these indicators; but Savigny,[62] in his
argument to prove their existence, claims that mention is made of them
in two decisions of Liutprand of the years 715 and 716, and brings as
additional evidence a _placitum_ of 751[63] in which Lupo, duke of
Spoleto, gives judgment "una cum judicibus nostris ... vel aliis
pluribus astantibus," etc. It is of more importance for us, however,
to determine the reasons for the introduction into Italy by
Charlemagne of the new office of the _scabinus_, than to lose
ourselves in a complicated discussion of the theoretical predecessors
of these officers.

The introduction of this new feature into city government seems to
have been the result of an attempt to correct certain abuses in the
exercise of power by the duke or head of the courts of the _civitas_.
The duke had the right, as we know, to summon all the freemen in his
jurisdiction to his _placita_, and to fine them according to the law
if they failed to answer his summons. The fines collected in this
manner formed a substantial part of the revenues of the _judex_
imposing them, and consequently arose the abuse, which seems to have
been a great cause of complaint in the eighth century, that the
freemen were summoned to attend _placita_ at frequent intervals during
the year, when there was no business of any importance to transact,
and when the sole object of the summons was to furnish an excuse for
imposing the fine. An attempt to remedy this injustice was made when
the number of _placita_ which any one _judex_ could hold during the
year was limited by law to three,[64] and the dates for these
definitely determined. But the abuse does not seem to have been
satisfactorily corrected till the time when Charlemagne formally
substituted for the body of the freemen, who in theory were supposed
to attend the _placita_ and assist in the judgments, a limited number
of men who, as regularly constituted judges, either assisted the
_judices_ or made judgments of their own, as the case might be. These
officers were the _scabini_, whose position we are now investigating.

All of the best authorities agree that no authentic allusion to the
office in Italy is to be found prior to the establishment of Frankish
rule. The word _scavinus_ or _scabinus_ sometimes occurs, but in every
case the document containing it has been proved spurious on other
grounds. For instance, Brunetti[65] publishes a donation of the bishop
Speciosus of Florence, to the monastery of the cathedral, purporting
to belong to the year 724, in which a certain "Alfuso scavino" is
mentioned; but it has been proved that the monastery was only founded
in the year 760, and though it may, at a later date, have received the
donation, the significancy of the use of the term vanishes. The first
authenticated use of the name of the new judge seems to be in a
_placitum_ of Charlemagne of the year 781.[66] In this the parties to
a suit are mentioned as having already appeared before the "Comitem et
suos Escapinios." Eight years later, in a _Praeceptum_ of
Charlemagne,[67] commission is given to the _comes_ Tentmann "superque
vicarios et Scabinos, quos sub se habet, diligenter inquirat."

Now that we have indicated the origin and noted the first appearance
of the new officer, let us examine his position and his duties. I am
much more willing to allow to the _scabinus_ the title of "city
officer," than to the _dux_ or even the count. We have seen the latter
as one of the important connecting links joining the city to the
state, bringing the city into relationship with the constitution of
the kingdom and making it a part of it; but we have been unwilling to
call the count or _dux_ the _legal_ head of the city, as such, that is
to allow him the title of the first city officer. But with the
_scabinus_ the case is different. His mode of appointment, and the
character of the functions he performed, ally him with the city proper
and with city people. His duties and his interests were more confined
to the city than those of any of the other judges, and when he
accompanies the count to the general _placita_ of the king, he seems
to go in the capacity of a representative of the city, and more in the
character of a city magistrate than any officer we have yet
considered. His duties were almost entirely of a judicial character,
and his powers seem to have been as broad in their extent as those of
the other judges. That he had the power of imposing capital
punishment, and that the other officers of the law could not change
but only execute his orders, appears from the following passage:[68]
"postquam Scabini eum [latronem] adjudicaverint, non est licentia vel
Vicarii ei vitam concedere." Muratori[69] maintains that he also had
the right of holding certain _placita_ of his own, and cites in proof
two _placita_ of Lucca of the years 847 and 856, where we find: "Dum
nos in Dei nomine Ardo, Adelperto et Gherimundo Scabini adsedentes in
lucho Civitate Lucana," etc.; and "dum resedisset Gisulfus Scabinus de
Vico Laceses, per jussionem Bernardi Comiti ... ubi cum ipso aderat
Ausprand et Audibert Scavinis." In the first of these there is no
mention whatever of the count, and in the second "Gisulfus Scabinus"
acts with his associate _scabini_ "per jussionem Comiti." But even if
we allow to the _scabini_ the right of holding _placita_, these must
have been of a lower grade than those of the counts or of the _missi
regii_; for to the _mallum_ of the latter an appeal was allowed from
the judgment of the _scabini_, as we see from the law of
Charlemagne,[70] which says that: "Si quis caussam judicatam repetere
in mallo praesumserit ... a Scabinis, qui caussam ipsam prius
judicaverint, accipiat." Generally speaking, however, it seems
probable that their jurisdiction included all cases arising within the
city limits, which could be dealt with in the regular _placita_ of the
counts, and which were not of sufficient importance to be referred to
the king in person, his representative the Count of the Palace, or his
delegates the _missi regii_.

When the count went up to the general yearly _placitum_ of the king,
as the representative of the _civitas_, according to the laws of
Charlemagne he was to be accompanied by a certain number of the
_scabini_; and these seem to have accompanied him not solely in the
character of legal advisers, but also in a certain measure as
representatives of the cities in which lay their jurisdiction: they
are by no means what the exaggeration of Sismondi[71] calls "des
magistrats populaires ... qui representaient la bourgeoisie"; but they
certainly stood for the interests of the people, in a greater degree
than any of the ruling powers we have as yet considered. Their number
is variously stated in the laws of different kings, and their actual
number seems seldom to have come up to the standard of legal
requirement. Lewis the Pious requires twelve to accompany each count
when summoned by the emperor: "veniat unusquisque Comes et adducat
secum duodecim Scabinos";[72] but concedes that if so many could not
be found in the city, their number should be filled out from the best
citizens of the town: "de melioribus hominibus illius civitatis
suppleat numerum duodenarium."[73] According to Charlemagne,[74] no
one should come with the count to a king's _placitum_ unless he had a
case to present, "qui causam suam quaerit, exceptis scabinis septem,
qui ad omnia Placita esse debent." And again: "Ut nullus ad placitum
banniatur ... exceptis scabineis septem, qui ad omnia Placita praeesse
debent";[75] and seven seems to have been the usual number expected,
and their attendance was compulsory; though sometimes only two appear,
and in a few cases none at all.

Of all matters relating to this office, the one which is of most
interest to us, and the one which most clearly shows the difference
which was designed to exist between it and that of the other judges,
was the manner in which the office was obtained. In this procedure we
can trace almost distinctly that the object of the central power which
established it was to secure greater justice and greater freedom to
the subjects who came under its jurisdiction. The fact was recognized
by the new government that the power of the local heads was too great
to suit the principle of universal central control, which was the
keynote of Charlemagne's system of administration, and was exercised
in too arbitrary a manner; and that some check was necessary to curb
the spirit and limit the independence of these local lords of the soil
and the city who had little consideration for their inferiors, and who
might at any time become a source of danger to their superiors. Such a
check was found, in regard to the central authority, in the _missi
regii_, and in reference to the general public, in the _scabini_ or
city judges.

In the old Lombard constitution we have seen the gastald, chiefly,
however, in the matter of judicial decisions, exercise a controlling
influence on the arbitrary action of the duke; but as the power of the
count varied from that of the duke, so that of the _scabinus_ differs
from that of the gastald, only perhaps in a greater degree. At the
time when the count assumes the place of his predecessor the duke, the
_scabinus_ displaces the gastald, although he cannot be said to have
assumed exactly the same position as the latter, nor to have filled it
in precisely the same way. The _scabinus_ did not have, of course, any
direct limiting control over the actions of the count; for any such
power in the hands of a body of lesser officers would have been alike
contrary to the spirit of feudalism which characterized the age, and
impossible to its forms; but being the principal judicial
functionaries of the district, into their hands fell most of the cases
which formerly went to the _placita_ of the count; and while the wish
of the great emperor, that even the meanest subject of the realm
should receive impartial justice at their hands, might have failed in
its effect, its fulfilment was made more sure by the method prescribed
for the election of the officers whose duty it was to execute it.[76]

In describing the method by which the _scabini_ gained their office, I
am in some doubt as to the proper terms to be employed. I have just
made use of the word "election," but cannot let it stand without some
qualification. It was not an election in the strict sense of the word
as we now understand it, but it was as near an approach to a popular
choice as was possible in the age in which it existed. The citizens of
a municipality did not nominate and elect by their votes a popular
magistrate, as some writers would have us believe; for such a
proceeding would have been an anomaly in the eighth century under the
rule of a Frankish emperor. But the people had a voice, and from the
frequent mention of their intervention it would seem an important
voice, in the selection of those who were to be their judges, and who
were to assist in representing them in the royal assembly. The
original appointments were made by some higher power, in most cases
the _missi regii_, the direct representatives of the king; but these
were made not arbitrarily, but always "cum totius populi consensu."
This was the important point; it was so far a popular office that the
free consent of the people was always necessary to make valid the
appointment of any incumbent. According to the ideas and customs of
the eighth century, such a method of procedure would represent a
fairly popular election; for we know well that in the times of the
greatest freedom, the Teutonic idea of a popular vote never went
beyond the mere expression of assent or dissent by the assembled
freemen. The initiative was always left to the king or chief who
conducted the meeting, just as much as it was in the ancient assembly
held on the classic plains of Troy. In a capitulary[77] of Charlemagne
of the year 809 it is decreed: "ut Scabini boni et veraces cum Comite
et populo elegantur et constituantur": and more specific directions
are given by Lothar I. in the year 873, in case of a _scabinus_ found
to be an unjust judge. He says:[78] "ut Missi Nostri ubicumque malos
scabinos invenerint ejiciant, et totius populi consensu in loco eorum
bonos eligant." From this latter example we see that the _missi_ had
the power of dismissal "for cause," as well as of nomination. In fact,
the king and his ministers, in the interests of impartial justice,
kept constant watch on the acts and judgments of the _scabini_, and a
law of Lothar I. tells us that "quicumque de Scabinis deprehensus
fuerit propter munera, aut propter amicitam injuste judicare" should
be sent up to the king to render an account of the manner in which he
had fulfilled the duties of his office.

Such then were the duties, the privileges and the restrictions of the
first magistrate to whom we could venture to ascribe any of the
attributes of a popular judge: a representative of the people at the
assembly of their ruler; a judge of their suits and of their misdoings
at home, and a check on the arbitrary power of their lord and feudal
superior,--we can readily appreciate that the existence of such an
officer within the city must have exercised some influence in giving
to its inhabitants a greater sense of security, and consequently of
importance, even if we cannot claim that in the earliest stages of
municipal development it gave birth to any definite ideas of personal
freedom or of municipal independence. But it can easily be seen that
it formed another and an important factor in that idea whose progress
we wish to trace, of a slowly growing feeling of individuality in the
city as such, the municipal unit as conceived apart from the still
legally recognized unit, the entire _civitas_. We have seen the count
the representative of this idea as far as its actual connection with
the constitution of the state was concerned, but it was the _scabinus_
who was to represent it to the consciousness of the people, and to
assist them in rediscovering the lost conception of a municipal unity.

It would be incomplete to conclude this account of the various
officers of government, without some mention of the position held by
the bishops at this period. As it has been our duty throughout this
paper to study the municipalities of Italy as only preparing to assume
a position of individuality eventually leading to independence, so it
is with regard to the bishops. While their social influence, as
pointed out in the first part of this paper, was always notable, their
political power, which formed one of the important steps in the
progress of the communes towards a separate existence, has its birth
at a time which is beyond the limits of this investigation. Not until
the overthrow of the Carlovingian dynasty left Italy the prey of
contending factions, and the crown passing quickly from hand to hand
made each applicant anxious to gain the support of the more prominent
electors, did the bishops obtain that legally constituted political
power which, by breaking up and in many cases destroying the rule of
the counts and great nobles in the cities, was the means of bridging
over the wide gulf which lay between the idea of a district under the
almost absolute rule of a great lord, and a civic autonomy governed by
its own independent citizens. Even, however, if we are not yet to
portray the bishop in a position of high political importance, we may
briefly consider his social power and influence, and, as we have done
with the cities themselves, indicate the steps by which he was enabled
ultimately to gain such an exalted position.

The relations of the bishop to the inhabitants of the cities during
the period we are considering were pretty nearly such as described in
the first part of this paper. He stood forth as protector of the weak
and the oppressed; as mediator between an unfortunate prisoner and an
unjust judge who was seeking his private interest rather than
following the spirit of impartial justice; or between a downtrodden
vassal and the almost unlimited power of his feudal superior. He
lessened the severity of harsh judgments, he protested the imposition
of unjust fines and penalties. In very many cases he was even
appointed by the king or his representatives as co-judge to assist the
_judex_ or the _missus_ in hearing cases where oppression or injustice
was to be feared. But it is important for us to avoid confusing this
kind of jurisdiction with that which he enjoyed in the century after
he had attained the power and the office of count, and had combined
the religious functions of head of the diocese with the secular ones
of political ruler of the city. Any judicial authority possessed by
the bishop at this earlier period was not in virtue of any political
position he himself held, but came to him entirely in what might be
called an extraordinary manner, that is, by delegation from the king,
for definite specified occasions. As an example of this extraordinary
delegated jurisdiction, I will refer to a document in the Archivio of
the Canons of Arezzo[79] of the year 833, relating to the judgment of
a dispute between "Petrum Episcopum Arretinum et Vigilium Abatem
Monasterii Sancti Antemi," situated in the territory of Chiusi, over a
privilege ceded to that monastery by Lewis the Pious in 813.[80] The
bishop of Arezzo gained a favorable decision from a court constituted
of some _judices_, _missi_ of the emperor, and of the bishops of
Florence, Volterra and Siena, Agiprandus, Petrus and Anastasius.
According to the terms of the document with regard to the composition
of this court, the bishops sitting in it were "directi a Hlotario
magno Imperatore"; and their powers are several times referred to as
being "juxta jussionem et Indiculum Domni Imperatoris." Here, as in
all other similar cases, we see plainly that there is no indication of
any purely personal jurisdiction.

That the influence of the bishop in affairs of state at this period
was only of an individual, extra-official character can be seen also
from the fact that the king considered the bishops themselves to be
under his judicial jurisdiction in all secular matters, just as the
lesser clergy came under the jurisdiction of the _judices_:[81] and
further, that after the election to a church, the decision of the
_judex_ must confirm the choice of the community in order to render it
valid.[82] All disputes also between bishops and their clergy, between
members of the body of clergy, and between these and members of the
laity, were settled by the royal authority;[83] and what is most
significant, there was a universal and freely used right of appeal for
the clergy or laity from the decision of a bishop to the person of the
king, who seems to have exhibited no hesitation in modifying or
reversing sentences, even in matters relating to purely clerical
discipline.[84]

Even in the time of the Franks, when the consideration shown to the
church and its representatives was much greater than under any of the
Lombard kings, we find Charlemagne,[85] on suspicion of infidelity to
his government, having sent to him and retaining as prisoners the
bishops "Civitatis Pisanae seu Lencanae" and Pottoni, Abbot of the
monastery of Volturno; and Lewis the Pious[86] sends into exile
"Ermoldo Nigello Abatis," and in the year 818 several other bishops,
including Anselmus "Mediolanensis Archiepiscopus," "Wolfoldus
Cremonensis" and "Theodolphus Amelianensis."[87] None of these
restrictions and limitations, however, although they arose chiefly
from the strong opposition always existing between the local temporal
rulers of the people and their spiritual rulers, could hinder the
bishops from occupying that important position of mediators and of
protectors of the people which we have ascribed to them.

Turning now to a consideration of the earliest steps which may be said
to have cleared the way for the political power of the bishops, we are
met by a subject which, though of great interest in itself, is not
sufficiently a part of this investigation for us to do more than
indicate the lines of its progress. This subject is the development of
the practice of giving certain immunities and privileges to churches
and monasteries, adopted by the Frankish kings, faithful sons of the
church, and then followed by all their royal and imperial successors.
In considering the important influence exercised by these immunities
on the development of the espiscopal power and the effects of this on
the growth of the communes, there are two essential facts which we
must always keep prominently in mind. In the first place we must
remember that the granting of immunities was a question of privilege
to particular individuals or ecclesiastical institutions, and not a
universal grant which affected in an equal degree all the dioceses of
the realm. This led to the marked differences in rank and importance
which existed between the various bishoprics, and in the tenth
century, when the temporal power became in many cases an adjunct to
the spiritual, caused some bishops to become powerful temporal
princes, while others, unable to gain this pre-eminence, remained
simply spiritual heads of their respective dioceses. So in the contest
between the counts and the bishops we find the latter only victorious
in certain cases, and consequently having only certain of the cities
under their jurisdiction; a fact which is illustrated as late as the
Peace of Constance, where in the ninth article the cities are still
divided into episcopal and non-episcopal cities.[88] In the second
place we must keep clearly before us an important fact, the truth of
which any chronological account of the development of the principle of
immunity would easily demonstrate, namely, that with the advance of
time and with the growth of that principle, the changes which took
place in the different sorts of immunities were not simply those of
degree, but essentially and principally those of _kind_.

A descendant of Charlemagne may have granted to some monastery or
bishopric a greater alleviation of some of the fiscal burdens borne by
it under his immediate predecessor, but a successor of Berenger when
he granted a _privilegium_ did not simply perform the negative benefit
of alleviating burdens; he endowed the head of the bishopric--probably
in return for some service he had received at his hands or expected to
receive--with the positive benefit of the political headship and
possession of some city or district of a former count. I mean by this
that the earlier immunities--and in these are included all given
during the period we are discussing--were all of them what are termed
simple or ordinary immunities; that is, those which deal with
exemption--whether from burdens for which the receivers would
otherwise be liable, or from jurisdiction to which they would
otherwise have been subjected--of what may properly be called the
private possessions of the churches concerned. They had nothing to do
with the privileges of a later time, by which a power to exact burdens
was granted and a positive jurisdiction over others allowed: that is,
public functions bestowed rather than private rights conceded.

That a distinction of such a character was a difference of kind and
not of degree is so plainly apparent that it is unnecessary to dwell
longer upon it, and it only remains for us to consider briefly the
chronology of some of the changes that took place. If we adhere
strictly to the proper signification of the terms used, the
development can be somewhat succinctly described by the simple
enumeration of the three characteristic features of its progress, viz.
_protection, exemption, privilege_ that is jurisdiction or temporal
power; and the three periods which are covered respectively by the
prominence of these ideas can be roughly stated to be: for the first,
the reigns of Charlemagne and his successors down to the time of
Charles the Bald--including any indication of this idea which we may
find during the reigns of the last rulers of the first Lombard
kingdom; for the second, the reigns of Charles the Bald, Karloman, and
Charles the Fat; and for the third, the full development of the
episcopal power in the tenth century, down to the period of its final
decline, and the rise of actual municipal government within the
communes.

It is doubtful whether immunities of any importance were granted even
by the latest kings of the Lombards, before the invasion of the
Franks. Under the first Lombard monarchy the church held a very
subordinate position with regard to the state, and if privileges were
granted to any of its members, they had attached to them no greater
meaning than the simple extension to them of the _mundibrium_ of the
king, such as was often allowed to private individuals; that is, they
were simply grants of royal protection, and were not similar to the
later grants which included both protection and privilege.[89]

With the advent of Frankish rule under Charlemagne, marked
consideration immediately appears for the church and its
representatives. Not alone is ample protection granted to many of the
churches of the kingdom, but to it is added the important function of
exemption. The greatest evil endured in those days by the
ecclesiastical authorities was exactions levied on their property and
oppression exercised on their dependents by the dukes and counts under
whose jurisdiction lay the temporal possessions of the churches and
monasteries. Consequently the aim of every bishop and of every abbot
was to obtain for the possessions of his diocese or his convent an
exemption more or less complete from the civil administration of the
neighboring secular ruler. For a long time there was no thought in the
mind of the bishop of gaining for himself the functions of temporal
jurisdiction, but simply that the power of the count should be
restrained with regard to church property, that is, that he should not
be able to exercise his judicial control over lands belonging to the
church, except by the express permission, "per licentia data," and
with the concurrence of the bishop himself. This and nothing more is
what is meant by all of the charters of exemption granted by the
Carlovingian rulers, down to the time of Charles the Bald, when, as we
shall presently see, a change was introduced.

It would be useless for me to cite examples of such charters, for
their number is countless, and reference may be made to any of the
great collections of mediaeval documents for confirmation of what has
just been said; for during the reigns of the earlier Carlovingians,
the strong reverence for the church and respect for its officers which
characterized the Frankish nation from the beginning led to the
extension of these privileges to much the greater number of the
churches in the realm. Not all churches enjoyed such grants, and not
all those accorded were of the same liberal character, but the number
given and the amount of liberty to the church thereby bestowed was
sufficient to give to the clergy that degree of importance which
ultimately culminated in making them the great lords that we find them
in the tenth century. To give an idea of the tenor of these documents,
I will, however, quote a few lines from the earliest one that has come
under my notice in Carlovingian times, namely a diploma of the year
782, issued to Geminiano II., bishop of Modena, and preserved in the
archives of that city. Here we find that: "Nullus judex publicus ad
causas audiendum, vel freda exigendum, seu mansiones aut paratas
faciendum, nec fidejussiones tollendum neque hominibus ipsius
episcopatus distringendum," etc. This is sufficient to show the
character of exemption from secular jurisdiction.[90]

The next forward step in the advance of the bishops to temporal power
was made probably about the time of Charles the Bald; though under his
two immediate predecessors, Lothaire[91] and Lewis II.,[92] we already
see indications of an extension of the quality of exemption to include
freedom from the payment of all public dues and the bearing of all
public burdens.[93] It was precisely the introduction of this element
of exemption from public burdens which marked the change in the nature
of the immunities granted from the time of Charles the Bald, down to
the period when the element of jurisdiction and real temporal power
was introduced under Guido and Berenger. Up to this time, the grounds
on which similar charters had been sought had been protection from the
oppression of the counts, and had resulted, as we have seen, in the
granting of simple charters of protection which were of no very great
significance. But now it is exemption from public burdens, etc., that
is made prominent, in addition to a complete severance from all
jurisdiction and control of the secular power of the _civitas_ in
which the bishop's see and domains are situated. That this concession
also was sought by the bishop on the plea of protection for his
dependents from oppression and exaction, does not diminish its
importance; for it is easy to see that the line which separates
recognized right of protection from recognized right of jurisdiction
is one easily effaced, and defense from the tyranny of a foreign power
can with little difficulty be transformed into domination by the
professed defender.

That this was the order of development consequent on these changes is
proved by the temporal dominion gained by the bishops in the next
century; and the steps of its growth marked by numerous immunities
granted by Charles the Bald, Karloman[94] his successor, and Charles
the Fat, the last of the Carlovingians in Italy. As a good example of
the complete development of this advance gained by the bishops, I will
mention a charter given by Charles the Fat to John, bishop of Arezzo,
in the year 879, in which he confirms to him all the property and the
rights of that see, and takes him under his protection, "sub
immunitatis suae defensione": he then goes on to explain what this
term meant, giving a full account of the extent to which a bishop's
property was exempted from the jurisdiction of the _judex publicus_,
and protected from the imposition of burdens and exactions.[95]

The next step in the growth of the episcopal power, and the most
important of all, is the progress from exemption to privilege, to
jurisdiction; and occurs after the return of the kingship of Italy to
the hands of native kings.[96] It means the full development of the
bishop into the temporal ruler, and as such belongs properly to the
history of the tenth century, and consequently is beyond the limits of
the present paper.

We have now considered individually and separately, in the course of
their development, the different elements which, when combined and
modified by the various changes described, contributed to form the
solid foundation upon which the fabric of the future independent life
of the cities was to be built. We have been dealing exclusively with
institutions, and the manner in which their growth has been
accomplished. For it is in the institutional life of a people, and in
the change and development it undergoes, that are to be found those
elements which form the basis for all future changes, whether simply
in the form of its government or in the structure of its social
system. If once a clear picture is gained of the structural parts
which form the institutional framework of any particular development,
and a truthful presentation of these forming principles is proved and
established, a detailed account of the material expression of them is
a matter of secondary importance.

I have not, in this paper, attempted to describe the actual condition
of any particular municipality, or even presented a picture which
could represent the material existence of the cities as a whole. Such
a picture would only be a necessary part of a study of institutions
when the city itself was the unit to be investigated, and not of one
whose chief object is to prove that the city as such had no
constitutional existence, but simply formed a part of another
institutional unit. When we reach a period in which the city stands
out as an object of study in itself, and when we do not have to trace
its history only by learning that of other institutions which included
and overshadowed it, then the practical life of the people within its
walls becomes of the greatest importance, even to the smallest detail
of civic law or city custom; and then, and not till then, begins what
could properly be called a study of municipal institutions.

During the three centuries that we have been investigating, the study
of the Italian municipalities has been, as we have seen, but the study
of other institutions of which the municipality formed only a part. No
attempt has been made to do more than prove the origin and trace the
earliest development of those principles, which in their maturity were
to gain for the municipal unit that position where the study of its
own structure would become an object of interest, entirely apart and
distinct from any of its surroundings. It has been shown that the city
did not inherit any such position from its immediate predecessor the
Roman _municipium_, which we have learnt to consider as overthrown,
from a constitutional standpoint as annihilated; but that the new
principle introduced into state life by the northern conquerors of
Italy, the principle of administration by county rather than by urban
divisions, relegated the city to an inferior place as part of a rural
holding, instead of leaving it the centre of a circle of rural
dependencies. Having demonstrated the absence of all constitutional
recognition of the municipal unit as such, I have attempted to show
how a condition of such legal insignificance became generally a
condition of actual importance; how from a position of such negative
interest, the advance of the city was commenced along a road which was
ultimately to restore it its old pre-eminence, even adding to this in
time the almost forgotten attribute of sovereignty. The motives for
this advance we have seen to be no higher ones than convenience and
expediency, which made the _urbs_ of every _civitas_ the natural
centre of its local administration, thereby in fact, if in no way by
law, restoring to it some of the elements of individuality, if not of
pre-eminence, which it had lost. The means employed we have seen to be
the functions of the various officers of state: the _dux_, the count
and the gastald, who connected the city with the state, and the
_scabinus_ and the bishop, who represented this connection to the
consciousness of the people. We have noted the marked effects produced
on the development of a more popular feeling, by the changes
introduced by the great emperor of the Franks; which, by diminishing
the power of the local lords, accomplished a double benefit; on the
one hand by saving the people from the arbitrary rule of a feudal
superior; on the other, by causing the city to become more of a
dependence and more of a support to the state as a whole. And finally
we have left the city prepared, on the return of another dynasty of
native kings, to accept, at least in a large number of cases, the
domination of another kind of lord, a spiritual one; who was to serve
as a medium for breaking up the power of the old lords of the
_civitas_, and from whom it would be an easier task for the commune of
the future to wrest the power and the sovereignty which was to make it
a free and independent autonomy.

       *       *       *       *       *

AUTHORITIES REFERRED TO IN THE TEXT AND FOOT-NOTES.

_Anastasius Bibliothecarius_: Vitae Romanorum Pontificum. v.
_Muratori_: Script. Rer. Ital., Tom. III., Pars I.

_Baluzii, Stephanus_: Capitular. Regum Francorum additae sunt
_Marculfi_ Monachi et aliorum formulae veteres. Parisiis, 1780. 2
vols. fol.

_Bethmann-Hollweg_: Schrift über den Ursprung der lombardischen
Städtefreiheit.

_Bouquet, Martin_: Recueil des historiens des Gaules et de la France,
etc. Paris, 1738-1855. 21 vols. fol.

_Brunetti_: Codice Diplomatico Toscano. Firenze, 1806.

_Canciani, Paolo_: Barbarorum Leges Antiquae, etc. Venetiis,
1781-1792. (Formulae Baluzii, Marcolfi & Mabillon.)

_Chronica Farfensis_. v. _Muratori_: Script. Rer. Ital., Tom. II.,
Pars II.

_Eichhorn_: Deutsche Staats- und Rechtsgeschichte. Gött., 1803-23.

_Fumagalli, Angelo_: Codice Diplomatico S. Ambrosiano. Milano, 1805.

_Hegel, Carl_: Geschichte der Städteverfassung von Italien. Leipzig,
1847.

_Leo, Heinrich_: Verfassung der lombardischen Städte. 1820.

_Liutprandus Ticinensis_: Opera, v. _Pertz_, Monum.; Script., Tom.
III.

_Lex Salica_. v. _Canciani_: Barbar. Leg. Antiq., Tom. V.

_Lupo, Mario_: Codex Diplomaticus civitatis et ecclesiae Bergomatis,
etc. Bergomi, 1784-1799. Vols. 2.

_Mabillon_: De Re Diplomatica. Parisiis, 1709. (General
Collection.)--Annales Ordinis S. Benedicti. Parisiis, 1703-39.

_Macchiavelli, Nicolo_: Istorie Florentine, _v_. Delle Opere, Tom.
II., ed. Milano, 1804.

_Migne_: Patrologiae Cursus Completus, etc. Series Latina.

_Muratori_: Scriptores Rerum Italicarum. Mediolani,
1723.--Dissertazioni sopra le Antichità Italiane, etc. Roma, 1755.

_Otto (Freising)_: Chron.

_Pertz_: Monumenta Germaniae Historica, etc. (Diplom.; Leges; Script.)

_Paulus Diaconus_: De Gestis Langobard. v. _Muratori_: Script. Rer.
Ital., Tom. I.

_Savigny_: Geschichte des Romischen Rechts im Mittelalter, etc.

_Sismondi_: Histoire des Républiques Italiennes du Moyen Age. Paris,
1840.

_Tacitus_: Germania.

_Tiraboschi, Girol_: Storia della Badia di S. Silvestro di Nonantula,
etc. Modena, 1784-1785.

_Tomasini, Ludov._: Dei Benefizii.

_Tommasio_: Historia sanese.

_Troya_: Delia Condizione dei Romani, etc.

_Ughelli_: Italia Sacra. 10 vols. fol. Venetiis, 1717-1722.

Collections of documents in the _Archivii_ of many cities of Northern
Italy.

N.B.--The above list is restricted to those works to which direct
reference is made in the text and foot-notes.


FOOTNOTES:


[1:] _Paulus Diaconus_: De Gest. Lang., Lib. II., c. 32. v.
_Muratori_: Script. Rer. Ital., T. I., p. 436. The Gothic system was
to take one-third of the land itself from the conquered people; the
Lombards on the other hand took one-third of the produce, "_frugum_."

[2:] With the growth of society and the increase of population, the
_milites_ gain added power, and become the "_catanei_," the barons of
the period, or as some are pleased to call them, the "rural counts."

[3:] _Tacitus_: Germania, cap. xvi.

[4:] The Sagas say the Lombards came originally from Scandinavia.
Their name is commonly derived from "Long-beard," but more probably
came from words signifying "a long stretch of land." Their first
appearance in history is during the first century of the Christian
era, in the region of Magdeburg. All trace of them is then lost till
they reappear in the fifth century on the banks of the Oder; they then
go south to the river Theiss. They are in a constant state of war with
the Gepidae, a tribe nearly as fierce as themselves, which strife is
supposed to have been fomented by the eastern emperors. In the year
567 the Lombards, under their king Alboin, together with the Avars,
begin to move into Pannonia from Dacia and the region of the Don.
Kunnemund, the king of the Gepidae, is killed, and his conquered
people merged in the race of their conquerors. In the next year, still
victorious, they overrun Northern Italy.

[5:] Some of these cities were enabled to hold out for a considerable
period. Pavia was not taken till 572.

[6:] To these seaports some of the functionaries of the inland towns,
especially among the clergy, were able to effect their escape. For
instance, the Archbishop of Milan fled to Genoa, and the Archbishop of
Aquileja to Venice.

[7:] The Christianity of the Lombards of the invasion was of the Arian
form. Autari, who reigned from 584 to 591, married Theodolinda of
Bavaria, and she first introduced orthodox Christianity. At the death
of Autari she married Agiluf (591-615) duke of Turin, who was an
Arian, but who pursued a mediative policy. During his reign a double
ecclesiastical system, with orthodox and Arian bishops side by side,
was maintained.

[8:] Justinian gave him the right to exercise, in reference to each
city, the functions of the governor of the province, during the
latter's absence; and granted him jurisdiction in all cases not
involving a larger sum than 300 _aurei_. He had a certain amount of
authority in criminal matters, and two apparitors were attached to his
person. The _defensores_ had two guarantees for their power and their
independence. 1. They had the right of passing over the various
degrees in the public administration, and of carrying their complaints
at once before the praetorian prefect; this freed them from the
jurisdiction of the provincial authorities. 2. They were elected by
the general body of the inhabitants of the _municipium_.

[9:] _Paulus Diaconus_: Lib. V., 7, 17, 18.

[10:] His words are: "Erano stati i Longobardi dugento ventidue anni
in Italia, e di già non ritenevano di forastieri altro che il
nome."--_Nicolò Macchiavelli_: Istorie Fiorentine, Lib. I. _vid_.
Opere, Vol. III., p. 219 (ed. Milano, 1804).

[11:] It is difficult to draw any picture of the different ranks of
society at this period, which would at once be perfectly accurate, and
yet definite enough to give entire satisfaction to the student.

[12:] Geschichte des römischen Rechts im Mittelalter, _passim_.

[13:] _Brunetti_: Cod. Diplom. Toscan. Firenze, 1806, Docum. No. 44.

[14:] _Idem_. Docum. No. 8.

[15:] _Brunetti_: Cod. Diplom. Toscan. Docum. Nos. 6-10.

[16:] _Idem_. Docum. No. 43.

[17:] _Liutprandi_: Leg. Long. Prolog. Anni XVI. et XV. et al. Vid.
_Muratori_: Script. Rer. Ital., Tom. I., P. II., p. 15, et seq.

[18:] _Liutprandi_: Leg. Prolog. Anni XIII. Vid. _Muratori_: Script.
Rer. Ital., Tom. I., P. II., p. 15.

[19:] _Crimoaldi_: Leg. Prolog. Vid. _Muratori_ op. cit. Tom. I., P.
II., p. 49.

[20:] _Liutprandi_: Leg. Prolog. ad Lib. III. Vid. _Muratori_: Script.
Rer. Ital., Tom. I., Pars II., p. 15.

[21:] _Muratori_: Script. Rer. Ital., T. II., Pars II.

[22:] _Savigny_: Gesch. des röm. Rechts im Mittelalter, S. 422 et al.

[23:] _Muratori_: Script. Rer. Ital., Tom. I., Pars II., p. 15.

[24:] _Paulus Diaconus_: De Gest. Langobard., Lib. III., cap. 16.

[25:] _Brunetti_: Cod. Diplom. Toscan. Docum. No. 6, anni 715.

[26:] _Ibid_.: Cod. Diplom. Toscan. Docum. No. 8, anni 715.

[27:] _Ibid_.: Docum. No. 11, anni 716.

[28:] _Ibid_.: Docum. No. 50, anni 756.

[29:] _Muratori_: Script. Rer. Ital., Tom. I., Pars II., p. 192E.

[30:] _Muratori_: Antiq. Ital. Diss. II., p. 186.

[31:] _Muratori_: Script. Rer. Ital., Tom. II., Pars II., p. 409.

[32:] In a donation to "Aimo Voltarius, abitator castrii Viterbii."
Vid, _Troya_: Della Condizione, etc., p. 361. Docum. No. 6, anni 775.

[33:] _Ughelli_: Italia Sacra, Tom. III., p. 28.

[34:] _Ibid_.: Tom. II., p. 145.

[35:] The word _palatium_ in the signification of _fiscus_ is perhaps
more frequently used by the Frankish kings than by the Lombard. See a
_privilegium_ granted to the nuns of the Posterla di Pavia by Lothar
I. in the year 839, in which it appears that any one infringing its
privileges must pay seventy pounds of the best gold, to be applied
"medietatem Palatio nostro, et medietatem parti ejusdem monasterii."
Vid. _Muratori_: Antiq. Ital. Diss. XVI., Tom I., P. I., p. 233. Also
several diplomas of Charles the Fat, and others make use of the same
term. The word _camera_ for _fiscus_ as the imperial treasury, was
probably not used before the time of Lewis II.; the first authentic
use of it in that sense being probably a diploma of that monarch of
the year 894, where he says that one hundred pounds of gold are to be
paid "medietatem Imperiali Camere et medietatem suprataxatae
Angilberge." Vid. _Muratori_: loc. cit. p. 234.

[36:] From _Otto of Freising_, De Gest. Freder., Lib I., cap. 31, we
know that the same distribution took place in Hungary, which was
divided into seventy _comitates_; "et de omni justitia ad Fiscum
Regium duas lucri partes cedere, tertiam tantum Comiti remanere."

[37:] _Charlemagne_: Leg. Lomb. Nos. 127 and 128.

[38:] Lex No. 128.

[39:] _Muratori_: Diss. Ant. Ital. Dissert. VIII., Tom. I., P. I., p.
96.

[40:] _Muratori_: Script. Rer. Ital., Tom. II., Pars II.

[41:] In illustration of this fact I will cite the names of some of
the various taxes, dues and privileges, mention of which is found in
the old documents. The feudal character of these will be apparent to
the reader. Following the rough division indicated in the text, we
have:

I. Under heading "_Fines and Forfeitures_":

  1. Forfaturae:
        Forisfacturae,
        Multae (Mulcte),
        Freda,
     _e.g_. Leudis (Leudum) for homicide.
     Penalties and compositions for crime.

  2. Scadentiae:
        Excadentia,
        Bona caduca.
     _Publicum_ falls heir to various classes of individuals. Cf. Leg.
        _Rhotari_, No. 158 et al.

  3. Lagan (Laganum).
     Seizure of shipwrecked goods by the state. Examples more
       common after year 1000 A. D.

II. Under the head of "_Taxes and Privileges_":

  1. _Onera Publica_, or Angariae (Perangariae), Factiones publicae.
     _a_. Heribannum: Penalty for avoidance of military service.
          Cf. _Charlemagne_, Leges, No. 23 et al.
     _b_. Heribergum: Hospitality to _Missi_ of emperor or king. Cf.
          _Charlemagne_, Leges, No. 128 et al.
     _c_. Mansionaticum (Mansiones, Evectio): Lodging for king and
          his ministers.
     Conjectum was a pro rata tax on a district so as to meet the
       expense. Cf. _Lud. Pius_, Leg. Nos. 54, 24, et al. loc.
     Tractoria gave specification of what should be provided in each
     case. For Formula, v. _Marcolfo_, Lib. I.
     _d_. Veredi (Paraveredi): Horses and beasts of burden for king
       and ministers. Cf. in Capitular. Reg. Franc. saepe. Capit.
       _Lud_. II., Ad Missos, etc.
     Census vehicularius, fiscalis or publicus was post to carry, free
       of expense, king's letters, etc.
     _e_. Foderum (Fodrum): Support of a king and his army in
       passing through a district. Cf. many privileges and exemptions
       to different churches and monasteries. Articles of the Peace of
       Constance. Some privileges to private persons.

  2. _Teloneum_.
    _a_. Pedagium: General word for _tolls_ on streets, roads,
bridges, etc.
      [Greek: alpha]. Pontaticum, for bridges.
      [Greek: beta]. Portaticum, for gates.
      [Greek: gamma]. Platiaticum, for license to sell in market.
      [Greek: delta]. Casaticum, for houses.
      Cf. _Otho_ II., Diploma to Monast. Volturno a. 983, et al. loc.
    _b_. Ripaticum: General word for tolls and taxes for transport by
     water. Cf. Diploma of Berenger II. v. _Ughelli_, Italia Sacra,
   Tom. V. Also a Privilegium of Charlemagne, anno 787. v.
_Ughelli_, Italia Sacra, Tom. V., a. 787. This privilegium
confirms the laws of Liutprand, and shows how much the
inhabitants of Como had to pay in various places in moving salt
down the rivers of Lombardy.
      [Greek: alpha]. Paliscitura,
      [Greek: beta]. Trasitura,
      [Greek: gamma]. Navium ligatura.
      Wharfage dues.
      [Greek: delta]. Portonaticum, harbor dues.
      [Greek: epsilon]. Curatura, probably a tax on certain
merchandise.
      [Greek: zeta]. Passagio, probably same as preceding, but
possibly a tax in favor of those going to the Holy Land.

  8. _Auxilia_ (Occasiones) (dues from vassals):
    _a_. Praestitiones.
    _b_. Dona.
    _c_. Gratuita.
    _d_. Mutua.
    More common after the year 1000 A.D.; but, for an example in the
    year 878, see a Diploma of Lewis II., published by _Puricelli_
  in his Monumenti della Basilica Arnbrosiana.

III. Under head of "_lands owned by Crown or Publicum_":

  1. _Terra Censualis_. Holder of t.c. owed these duties:
    _a_. Glaudaticum,
    _b_. Escaticum,
    _c_. Herbaticum,
    _d_. Datio,
    _e_. Alpaticum,
    _f_. Agrarium.
    Payments for right to pasture cattle and swine on public lands.
      Cf. Chron. da Volturno, a. 972. Chron. Farfensis. Privileg. Lud.
      Pii, et al. loc.
    _g_. Terraticum, amount of produce given for right to cultivate.
    _h_. Pascuarium, payment for sheep pastured on the public land.
    _i_. Boazia, tax levied on every pair of oxen; probably not
      developed before XII. century.

The taxes and so forth mentioned in this list are by no means all that
were levied, but are a fair representation of them. After the year
1000 their feudal character is even more strongly marked.

[42:] This statement, while true of all integral parts of the Lombard
kingdom, must, however, be modified in regard to the great duchies of
Spoleto and Beneventum, which were under a different system of
internal government from the kingdom of Lombardy proper--were, in
fact, small tributary kingdoms under great dukes enjoying practically
royal powers. The Duchy of Beneventum seems to have been divided into
_gastaldata_, divisions of territory similar to the _civitates_ of
Lombardy, but presided over by a gastald instead of by a _dux_ or
_comes_. In the charter of division made between the dukes of
Beneventum and of Salerno in the year 851--v. _Muratori_, Ant. Ital.
Diss. X.--are mentioned "integra gastaldata, seu ministeria Tarentum,
Latinianum, Cusentia, etc." And, at an earlier date, _Paulus
Diaconus_--De Gest. Long., Lib. V., cap. 29--tells of a certain
"Alzeconis Dux de Bulgaris," to whom Grimoald, Duke of Beneventum,
gives "ad habitandum ... Lepianum, Bovianum et Inferniam, et aliis cum
suis territoriis civitates; ipsumque Alzeconem mutato dignitatis
nomine, de duce gastaldium vocari praecepit."

[43:] v. _Muratori_: Script. Rer. Ital., Tom. III., Pars II., p. 162D.

[44:] _Liutprandi_: Leg. Lib. VI., Leg. 29. v. _Muratori_: Script.
Rer. Ital., Tom. I., Pars II.

[45:] _Muratori_: Ant. Ital. Diss. X., Vol. I., P. I., p. 121.

[46:] _Muratori_: Script. Rer. Ital., Tom. III., p. 155A.

[47:] Ed. _Rhotari_: Leg. 23 and 24. v. _Muratori_: op. cit., Tom. I.,
Pars II.

[48:] _Liutprandi_: Leg. Lib. IV., 7.

[49:] _Liutprandi_, Leg. Lib. IV., 8, says: "Si homines de sub uno
Judice, de duobus tamen Sculdahis causam habuerint, etc."

[50:] _Paulus Diaconus_: De Gest. Lang., Lib. VI., 24.

[51:] _Muratori_: Ant. Ital. Diss. X., Vol. I., Parte II., p. 116.

[52:] _Ughelli_: Italia Sacra, Tom. V.

[53:] _Caroli Magni_, Leg. Lomb. 36: "Ut nullus homo in Placito
Centenarii neque ad mortem, neque ad libertatem suam amittendam, aut
res reddendas vel mancipia judicetur. Sed ea omnium in praesentia
Comitum, vel Missorum nostrorum, judicentur."

[54:] _Liutprandi_: Leg. Lib. V., 15.

[55:] Chronicon Fontanellense, Cap. I. v. _Muratori_: Ant. Ital. Diss.
X., Vol. I., Parte I., p. 117.

[56:] _Rachis_, a decree of--existing in the Monast. of Bobbio. v.
_Muratori_: Aut. tal. Diss., Vol. I., Part I., p. 118 (Diss. X.).

[57:] _Liutprandi Ticinensis_: Historia, Lib. I., cap. 10. v.
_Muratori_: Script. Rer. Ital. II., p. 431. _Pertz_, Monum.; Script.,
Tom. III.

[58:] The opposite sides of the question are ably presented by
_Savigny_: Geschichte des Röm. Rechts, etc., Vol. I., p. 230 et seq.
(trans.), and _Hegel_; Städteverfassung v. Italien, etc., I., page
470, note.

[59:] It is difficult to find an English word which intelligently
renders the various names for these freemen in their judicial
capacity, used by the different nations, such as _arimanni,
rachinburgi, boni homines_, etc. Most English writers make use of the
German word _schöppen_. I have taken the rendering "judicators" from
Edward Cathcart, the translator of the first volume of Savigny's
Geschichte des Römischen Rechts im Mittelalter.

[60:] _Liutprandi_: Leg. 25, Lib. IV., 7.

[61:] _Rachis_: Leg. No. 11.

[62:] _Savigny_: Geschichte, etc., Vol. I., p. 233, trans.

[63:] Preserved in the Archives of Farfa. Published by: _Mabillon_:
Annales Ord. S. Benedicti, Tom. II., p. 154. _Muratori_: Script. Rer.
Ital., Tom. II., Pars II., p. 341.

[64:] We have confirmation of this from a document of the early part
of the ninth century, which says: "De Vicariis et Centenariis qui
magis propter cupiditatem quam propter justitiam faciendam saepissime
placita tenent, et exinde populum minus affligunt, ita teneatur ... ut
videlicet in anno tria solummodo generalia placita observent et nullos
eos amplius placita observare compellat." From Worms Capitulary of
_Lewis the Debonnair_, a. 829, c. 5. Also compare: Capit. V., anni
819, Art. 14. Capit., Lib. IV., c. 57. (_Baluzii_, 616 infr., 788
supr.) _Caroli Magni_, Leg. Long. 69. (_Canciani_ I., 157.)

[65:] _Brunetti_: Cod. Diplom. Toscan. Doc. No. 18.

[66:] _Bouquet_: Rerum Ghillicarum et Francicarum Scriptores.

[67:] _Baluzii_: Capit. Reg. Franc. a. 789, Tom. V., p.
746.

[68:] Capit. I., Art. 13, anni 813. v. _Baluzii_: Capit. Reg. Franc.,
Tom. I., p. 509.

[69:] _Muratori_: Ant. Ital. Diss. X., Vol. I., Pars I., p. 115.

[70:] _Caroli Magni_: Leg. Long. No. 92.

[71:] _Sismondi_: Rep. Ital. du Moyen Age, Vol. I., p. 268.

[72:] Capit. II., anni 819, Art. 2. v. _Baluzii_: Capit. Reg. Franc.,
Tom. I., p. 605.

[73:] Loc. cit. sup.

[74:] _Caroli Magni_: Leg. Long. No. 116.

[75:] _Caroli Magni_: Cap. Minora, anni 803, c. 20.

[76:] "Adjutores Comitum, qui meliores, et veraciores inveniri
possunt." _Lothar I_.: Leg. No. 49. v. _Muratori_: Ant. Ital. Diss.
X., Vol. I., Parte I., p. 112.

[77:] _Caroli Magni_: Capit. I., anni 809, Art. 22. v. _Baluzii_:
Capit. Reg. Franc. I., 466 infr.

[78:] _Lothar I_.: Capit. anni 873, Art. 9. v. _Baluzii_: Capit. Reg.
Franc. Tom. II., p. 232. Leg. No. 48. v. _Muratori_: Diss. X., Vol.
I., P. I., p. 112.

[79:] _Muratori_: Ant. Ital. Diss. LXXVII., Tom. III., Parte II., p.
189.

[80:] Vid. _Tommasio_: Historia sanese, Lib. IV.; _Ughelli_: Italia
Sacra, Tom. III., for this privilege.

[81:] _Brunetti_: Cod. Diplom. Toscan. No. 8, a. 715. A priest named
Gunthram says: "Nec cumquam ab episcopum Senensem coridicionem
habuimus, nisi, si de seculares causas nobis oppressio fiebat,
veniebamus ad judicem Senensem, eo quod in ejus territorio sedebamus."

[82:] _Brunetti_: Cod. Diplom. Toscan. No, 8, a. 715. Germanus, a
deacon, says: "Quoniam prelectus a plebe, cum epistola Warnefried [the
Gastald of Siena] rogaturus ambulavi ad Luperceanum Aretine Ecclesie
Episcopum et per eum consecratus sum."

[83:] For example see a judgment of the year 771, in the Archivio of
Lucca. For which vid. _Muratori_: Ant. Ital. Diss. LXX., Tom. III., P.
II., p. 184.

[84:] Good illustrations of all these statements are to be found in
two documents in the Archivio Archivescovile of Lucca, of about the
year 813. Vid. _Muratori_: Ant. Ital. Diss. LXX., Tom. III., Parte
II., p. 184.

[85:] Codex Carolinus--_Adriani I_., Epist. Nos. LV., LXXIX., LXXII.,
L.

[86:] _Ermoldi Nigelli_: Poema. V. _Muratori_: Script. Rer. Ital.,
Tom. II., Pars II.

[87:] _Muratori_: Ant. Ital. Diss, LXX., Vol. III., Parte II., p. 188.

[88:] _Pertz_: Monum. German., Tom. IV., p. 176.

[89:] It is true that _Muratori_ (Script. Rer. Ital., Tom. I., Pars
II., p. 192) publishes a diploma to the monastery of Novantulanum,
near Modena, purporting to be by Aistulf and of the year 753; and (in
Ant. Ital. Diss. LXXI., Vol. III., P. II., p. 256) another by
Desiderius to the monastery of Santa Giulia di Brescia, which seems to
grant exemption and protection if not privilege. But in the first the
formula employed is so exactly similar to that of the later Frankish
documents issued for the same purpose, as immediately to excite
suspicion; and in the second, Muratori himself finds something
radically wrong with the chronology.

[90:] An even better example can be found among Charlemagne's
diplomas, by referring to one granted by him to the church of Reggio,
and published by _Ughelli_: Italia Sacra, Tom. V., Appendice.

[91:] See a charter given by Lothaire to Pietro, bishop of Arezzo in
843, the year of the Treaty of Verdun, v. _Muratori_: Ant. Ital. Diss.
LXX., Vol. III., Parte II., p. 196.

[92:] See a law of Lewis II. of 855, made in the Diet of Pavia. v.
_Muratori_: Script. Rer. Ital., Tom I., P. II. (added to Leg. Lomb.).

[93:] Certain "dona," however, supposed to be voluntary, were always
excepted. See a diploma of Louis of the year 854 to the monastery of
St. Gall in Germany, where it describes the usual "dona" for _all_
monasteries as "Caballi duo cum scuteis et lanceis." v. _Muratori_:
Ant. Ital. Diss. LXX., Vol. II., Part II., p. 204.

[94:] See a _privilegium_ given by him in the year 877 to the nuns of
the Posterla, Sta. Teodata at Pavia. v. _Ughelli_: Italia Sacra, Tom.
V.

[95:] _Muratori_: Ant. Ital. Diss. LXX., Vol. III., Parte II., pp.
196, 197.

[96:] Probably the earliest of such privileges was one granted to the
bishop of Modena by Guido in the year 892, and published by _Ughelli_:
Italia Sacra, Tom. II., p. 98.