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 OFMUNICIPAL 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 NorthernItaly, we must consider the conditions of land and people, which firstrendered possible and then fostered the spirit of local independenceof which such beginnings were the natural expression. To do this wemust commence our researches with the first domination of the Lombardsin the country. 

In detail the story of the conquest of Northern Italy by the Lombardsunder Alboin, in 568, hardly differs materially from that of theinroads of other barbarian tribes of the north on the fertile plainsof Italy. The causes were the same. Where the distinction is to befound from other such invasions, is in the results of the Lombardoccupation, and in the different methods which the Lombards adopted soas to render their power and their possessions permanent. Let us lookat the character of this invading host, which sweeps like a tide, atonce destroying and revivifying, over the exhausted though stillfertile plains of the Po and the Adige. Are we to call it a movingpeople or an advancing army? Are we to call its leaders (_duces_, from_ducere_ to lead), heads of clans and families, or captains andgenerals? Finally, is the land to be invaded, or is the land to besettled? To all these questions the only answer is to be found in theconception of the absolute union of both the kinds of functionsdescribed. A people is moving from a home whose borders have provedtoo narrow for its increasing numbers; an army is conquering a newhome, where plenty will take the place of want, and luxury ofprivation. It is not an army marching at the command of a stronglycentralized power to conquer a rich neighbor, and force a defeatedenemy to pay it service or tribute. It is a body which, when it hasconquered as an army, will occupy as a people; when it is establishedas a people, will still remain an army. The sword was not turned intothe ploughshare; but the power to wield the sword had given the rightto till the land, and soon the power to hold the land was to give theright to wear the sword. It was the conquest of a highly civilizedagricultural people--whose very civilization had reduced them to astage of moral weakness which rendered them totally unfit to defendthemselves--by a semi-barbarous people, agricultural also, but rude, uncivilized, independent, owning no rulers but their family ormilitary chiefs. 

The conquerors took possession of the country simply as they wouldtake possession of a larger farm than they had before owned. Theirriches were only such as served for the support of men--herds, land, wine and corn. They needed cultivators for their large farm, soinstead of destroying every one with fire and sword, they spared thoseof the weak inhabitants of the land who had survived the firstonslaught, in order that they might make use of farmers to cultivatetheir new possessions. In most cases they did not make slaves of them, but tributaries; and after the land had been portioned evenly amongthe soldiers of the invading host, the original holders of the landtilled it themselves, under a system somewhat kindred to the metayersystem as to-day existent in Tuscany and elsewhere, paying, accordingto the usual custom adopted by the northern conquerors of Italy, one-third of the produce[1] to their new masters. The wholeorganization of society was on a purely military basis; the soldiersof the conquering army, although they became landed proprietors, nonethe less retained their character and name of soldiers. Hence whenthese crude forms of social life began to crystallize into thecarefully marked ranks of the feudal system, the "_milites_"[2] formedthe order of gentlemen, the smaller feudatories, who gave land in fiefto their vassals--generally the old inhabitants--while holding theirown nominally from the "_duces_, " or dukes, the representatives oftheir former leaders in war, who held their tenure direct from theking or chief. 

As the object of this paper is particularly to trace the origin andearly sources of municipal life in Northern Italy, let us turn and seewhat were the effects on the already existing towns, of the inroads ofthese hordes of northern barbarians. At the outset I must stateemphatically that all our sources of information as to theinstitutional history of this obscure period are exceedingly vague, meagre and unsatisfactory. The progress of events we can follow withmore 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 theruling powers by studying and comparing the different codes of lawsthat have come down to us; but in a study of the internal municipallife of these early ages, the student meets again and again withincreasing discouragement, and soon finds himself almost hopelesslylost in a tangle of doubts and inferences. 

In the almost total want of direct evidence, from casual mentiongleaned from the writings of the chroniclers, and from occasionalreferences in the law codes to municipal offices and regulations, enough indirect evidence must be sought, to enable us, by the aid ofour powers of reasoning, if not of our imagination, to build up somehistory, defective though it be, of municipal life, down to the timewhen the internal growth and importance of the cities rendered themsufficiently prominent political factors to have their deeds and theirprogress chronicled. Besides, if we consider the modes by which thecommunes slowly rose to independence, it will easily be seen that tohave every step of this slow and almost secret advance chronicled andgiven to the world, would have been entirely contrary to the policy ofthe cities. These hoped to gain by the neglect of their rulers, andwhile clinging pertinaciously to every privilege ever legally granted, to claim new ones constantly, putting forth as their sole legal titlethat slippery claim of precedent and time-honored custom. In that age, books of reference to prove such claims would have been found alikeinconvenient and unnecessary. All the city folks wished was to beforgotten and ignored by their superiors, as any notice vouchsafedthem was sure to come only in the restraint of some assumed privilegeor the curtailing of some coveted right. 

Hence the principal cause of the poverty of record through all thisperiod of slow if steady growth; and the disappointed investigatormust in some measure console himself with such a reason. It may beasked, what of the various local histories of different towns, whoseauthors seldom fail to give highflown accounts of their native cities, even in the remotest and darkest ages of their history? To thisquestion there is a double answer: in the first place the uttermostcaution must be enjoined in using such material; not only inseparating fact from baseless tradition of a much later period, but inmaking large allowance for the heavy strain which a strong feeling oflocal 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 derivetheir source and most of their material, were written to the glory orunder the auspices of some dominant noble family or ecclesiasticalinstitution, to whose laudation in ages past and present the humbleauthor devotes all the resources of his mind, and I am afraid far toooften of his imagination. 

Let us now cast a glance at the exhausted civilization of the towns ofNorthern Italy, where the formal shell of Roman organization stillremained, after the vigor and life which had produced it had long beendestroyed. To describe the condition of the Roman _municipia_ at thetime of the Teutonic invasions is but to tell a part of the story ofthe fall of the Roman Empire. The municipal system, which from thenames and duties of its officers would seem to represent a surprisingamount of local independence in matters of administration, even acollection of small almost free republics, had lost all its strengthand all its vital power by the grinding exactions of a centralizeddespotism, which was compelled to support its declining power bystrengthening the very forces which were working its destruction, atthe expense of destroying those from which it should have gained itsstrength. The stability of every state rests ultimately on the wealthand character of its citizens, and any government which exhausts theone and degrades the other in an effort to maintain its own unlimitedpower has its days numbered. Under the despotic rule of the lateremperors the municipalities had lost all their power, though in theorytheir rights were unassailed. The _curia_ could elect its magistratesas of old, and these magistrates could legislate for the _municipium_, but by a single word the imperial delegate could annul the choice ofthe one and the acts of the other. 

The economic condition of the people amounted to little short ofbankruptcy; the possession of wealth, in landed property especially, having become but a burden to be avoided, and a source of exactionrather than of satisfaction to the owner. The inequalities of burdensand 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 succeededin detaching themselves from the interests of the _municipium_ towhich they belonged; such were the members of the Senate, includingall with the indefinite title of _clarissimi_, the soldiers, theclergy, the public magistrates as distinguished from the municipalofficers. The second consisted of all citizens of a town, whethernatives--_municipes_--or settlers--_incolae_--who possessed landedproperty of more than twenty-five _jugera_, and did not belong to anyprivileged class: both these classes were hereditary. The third, ofall free citizens whose poverty debarred them from belonging to eitherof the preceding divisions. On the second of these classes, theCurials, fell all the grinding burdens of the state, the executing ofmunicipal duties, and the exactions of the central government. 

It is not necessary for me to trace here the development of thatfinancial policy which resulted in the ruin, I may say theannihilation of this order. Suffice it to say that it formed thecapital fund of the government which exhausted it, and when the sourceof 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 anexplanation of a circumstance in the history of the Lombardsubjugation of the Italian towns, which without consideration of thisfact would appear almost incomprehensible. I refer to the utterpassivity of the inhabitants, not only in the matter of resistance toattack, which the greater strength and courage of the invaders perhapsrendered useless, but in what is more surprising, the fact that afterthe easy conquest was completed, we hear nothing of the manner inwhich the people adapted themselves to the totally new condition oflife and of government to which they were subjected. Even if we canunderstand hearing nothing of what the people did, at least we shouldexpect to hear what was done with it, what it became. The story of itsresistance might be short and soon forgotten, but the story of itssufferings, of its complaints, of struggle against the entire changein the order and character of its life, should be a long one. 

But of this no record, hardly mention even appears. When the centralgovernment falls and the last of its legions are destroyed or havedeparted, there seems to be no thought of any other element insociety. If the evidence of the law codes did not tell us that a Romanpopulation existed, history would record little to indicate itspresence. Not only is even the slightest trace of nationality effaced, but the merging of the old conditions of life into the new seems oftoo little consequence to merit even an allusion. This state ofaffairs, as said above, is caused by the annihilation, by the despoticpower of the central government, of that middle class which in timesof prosperity formed the sinews of the state. Of the other classes, the privileged class, with the exception of the clergy, fell of coursewith the government which supported it, and the common peoplepossessed no individuality, no power, and hardly any rights. Such, then, was the condition of the towns at the time of the Lombardinvasion, a condition of such abasement and such degradation asliterally to have no history; a condition which indeed can truthfullybe said to merit none. 

History tells the story of every great nation on the face of the earthin three short words, growth, supremacy, decline. Vary the theme asyou may in the countless histories of countless peoples; subdivide thecourse of its progress as you will, allowing for different localcauses and different local phenomena, the true philosophy of historyteaches that no real departure from this natural development ispossible. But what if by the violent intervention of some new andentirely foreign force, another development and another life is givento the inanimate ashes of the old? What if some nation, fresh from thewoods and fields of the childhood of its growth, come withoverwhelming yet preserving strength and infuse new blood into thewithered veins of its predecessor? This is the problem we now havebefore us. How many writers of Italian history have entitled thischapter in its development "A new Italian Nation formed"! It is notthe old glories of Rome, which had been Italy, returning; it is a newItalian nation formed. Each word tells a story of its own. It is notthe 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 ofthe North, which "forms" a nation from the exhausted remains of thedevelopment of centralization of the South. The new idea of distinctnationality among races of kindred stock was already at work, eventhough 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 passiveforce and influence of the old forms on the new. The old veins receivethe new blood; the new torrent, overrunning everything at first withthe strength of its new life, will find again, even if it deepen, thechannel of the old river: a vanquished civilization will always subdueand at the same time raise its barbarous conquerors, if they come of astock capable of appreciating civilizing influences. In the presentcase this means that the men of the North brought the new ideas thatwere to form modern history, and let their growth be directed andassisted, while they were yet too young to stand alone, by some of theframework which had been built up by the long experience of theirSouthern 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, somuch discussed by the two opposing schools of thought: whether thegovernment of the Italian communes was purely Roman in its forms andin its conception, or purely Teutonic. The supporters of neithertheory can be said to be in the right. You cannot say that the averagecity government was entirely Roman or entirely Teutonic, either in thelaws which guided it, or in the channels by which these laws wereexecuted and expressed. I think much time and much learning have beenspent on a discussion both fruitless and unnecessary. We cannot err ifwe subject the question to a consideration at once critical andimpartial. 

The widely differing opinions eagerly supported by different writerson this point, form a very good example of the deceiving influence ofnational feeling on the judgment in matters of historical criticism. For, on the one hand, we find many German writers ignoring entirelythe old framework of Roman organization, and recognizing only the newTeutonic life which gave back to it the strength it had lost; on theother, a host of lesser Italian writers who magnify certain old namesand forms, and mistake them for the substance, making all the new lifeof Italy but the return of a past, which belonged to a greatness thatwas dead. Many there are of this school in Italy, where you will oftenfind to-day a commune of three hundred inhabitants, with its one ortwo constables wearing the imperial badge, "_Senatus PopulusqueAlbanensis_" or "_Verulensis_, " as the case may be. Truly a suggestiveanachronism! It is true that in remote ages especially, when therecords of history are few and uncertain--and the period we areconsidering in this paper can almost be called the prehistoric age ofmunicipal institutions in Northern Italy--much can be learned and muchtruth inferred from the evidence of a name. But this is a species ofevidence we can never be too cautious in using, as the temptation isalways 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 particulartheory; always bearing in mind, however, one fact, all-important in astudy where so much depends on nomenclature, namely, to give thatshade of meaning and that amount of weight to any term which itpossessed in the age in which it was used, carefully distinguishingthis from its use in any earlier or later age. The importance of thiscaution will be soon seen when we come to discuss the origin ofcorporate life in the communes, where many have been misled byattaching to the words _respublica_ and _civitas_, for example, socontinually recurring in the old laws and charters, a meaning whichwas entirely foreign to the terms at the period of their use. Withthis warning, we will turn to a consideration of the first effects ofthe inroad of the northern barbarians on the cities, whose exhaustedand defenseless state has already been pointed out. 

One of the chief characteristics of the Teutonic tribes which overranItaly during the fifth and sixth centuries, was an innate hatred ofcities, of enclosing walls and crowded habitations. Children of thefield and the forest, they had their village communities and theirhundreds, their common land and their allotted land, but these weresmall restrictions on their free life, and left an extended"air-space" for each individual and his immediate household. Homesteadwas not too near homestead, each man being separated from his neighborby the extent of half the land belonging to each. The centralizationof population in city life was a thing undreamed of, and an ideaabhorred, alike for its novelty and for the violence it did to the asyet untrained instincts of the people. The strong, independentindividualism of the Teutonic freeman rebelled against anything whichwould in any way limit his freedom of action: "ne pati quidem inter sejunctas sedes, " says Tacitus. [3] An agriculturist in his rude way, helived on the land which supported him and his family, and feeling nofurther need, his untrained intelligence could form no conception ofthe necessities and the advantages of the social union andinterdependence of a more civilized state of society; nor could hecomprehend the mutual relations of the individual to the immediatecommunity in which he lived. 

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

If all this be true of the Teutonic nations in general, in the earlierstages of their development, particularly true is it of theLombards, [4] a wild tribe of the Suevic stock, whose few appearancesin history, previous to their invasion of Italy, are connected onlywith the fiercest strife and the rudest forms of barbarism. Historyseems to have proved that tradition has maligned the Vandal; the Gothcan boast a ruler raised at the centre of Eastern civilization andrefinement; but the Lombard of the invasion can never appear as otherthan the rude barbarian rushing from his wild northern home, andforcing on a defenseless people the laws and the customs suited to hisown rugged nature and the unformed state of society in which he lived. 

Such being the case, there is little cause for wonder that theinvading Lombard directed his fury with particular violence againstthe corporate towns, whose strength was not sufficient to resist theattacks of his invading host. Like all other Teutonic tribes theLombards were entirely unskilled in the art of attacking fortifiedtowns; hence the only mode of siege with which they were acquaintedwas that of starving out the inhabitants, by cutting off all source ofsupply by ravaging and destroying the surrounding country. This fact, unimportant as it may seem at the first glance, materially affectedthe 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 theminto two classes. First, those cities which, after a more or lessshort resistance, yielded to the rude tactics of the barbarians andwere made subject by them, for example Milan and Pavia. [5] Second, those cities like Venice and Ravenna, [6] which, by means of aconnection with the sea which the invaders could not cut off, wereenabled to gain supplies by water, and so resist all efforts of thebesieging host to capture them. They never fell completely under theLombard yoke, and either retained a sort of partial autonomy oryielded allegiance to some other power. It is the cities of the formerclass 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 theyexisted, were of a character to afford little protection, and the bulkof the inhabitants were so enervated from a life of poverty andoppression that they were almost incapable of offering any resistancein their own defense. They were reduced to such a condition as to beonly too grateful if their rough conquerors, after an easy victory, disdainfully spared their lives, and left them to occupy theirdismantled dwellings. 

This seems to have been the almost universal method of procedure. TheLombards did not in any sense, at first, think of occupying theconquered cities; for the reasons already given they despised, becausethey could not yet comprehend, the life of the civilian. Theycontented themselves with pulling down the walls, razing thefortifications, and destroying every mark which would make of the cityanything but an aggregate of miserable dwellings. The inhabitants werefor the most part spared, and left to enjoy, if the term can be usedfor such an existence, what the conquerors did not think worth thehaving. These felt the fruits of their victory to lie in the richarable lands of the surrounding plains, and here they settled down, each in his own holding, portioned out by lot to every soldier; thetown being considered but as a part of the _civitas_ or district, if Imay use the term, of the _dux_ or overlord, from whom the several_milites_, or landholders of the surrounding territory, had theirtenure, and who himself held directly from the king. 

It is the very insignificance of the municipal unit at this time thatmakes it so difficult to determine anything accurate of its position. It existed, but little more can be said of it; indeed, even thisstatement might be questioned, if we make that term signify acorporate existence, as will be seen further on when we come todiscuss 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 goodindex of rank and importance. Until we find the cities fulfillingcertain obligations required by a higher power, we can learn little totell of their condition or of their internal history. On the otherhand, when we find the time come for fulfilling certain obligations, we can safely argue that the cities have acquired certain functionswhich put them in a position to meet the obligations which theirgrowing importance has caused to be exacted of them. To trace thesesteps accurately and satisfactorily is impossible, but by the aid ofcollateral evidence a rough idea of the epochs at least of theirprogress can be gained. 

For this first period, then, we see the towns reduced to the lowestdepths of wretchedness and disintegration; critically speaking hardlyexisting, but simply holding together. In studying institutions andtracing the course of their development, we must always remember thatthe uninterrupted continuance of their history may depend as much onthe moral force of their existence as on the more limited and definedfact of their accurate and legal recognition by others. In everysociety a state of fact must in time become a state of law, as wiselegislation is more the recognition by law of existing conditions thanthe formulating of new codes. So the towns, even at the periodimmediately succeeding their conquest by the Lombards, though theircorporate existence cannot be claimed, nevertheless cannot be said inany measure to have ceased to exist; for as collections of individualsand of dwellings they were there, with an individuality uneffacedthough as yet unrecognized. 

It was a period of utter stagnation, of suspension of life, but thesource remained intact, from which, by the evolution of events and theprogress of time, seeds were to spring that only needed externalpressure to force them into a growth, slow indeed but certain, and inthe end fruitful. A transition period we might call it. The theory ofRoman 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 animpaired independence, had left it simply an administrative instead ofa political division of the state. In the flush of triumph the roughhand of the barbarian overthrew the framework of administration, andat first failed to recognize the necessity of replacing it by anyother. The passivity of the conquered inhabitants--the cause of whichhas already been explained--was such that a long period elapsed beforethey realized that to regain in some measure the position of localindependence that they had lost, and to free themselves from theshackles of dependence on the rural communities in which they wereplaced--a dependence forced upon them by the natural development ofthe new state system of their Teutonic conquerors--some common effortat organization was needful, for purposes at least of self-defense. That this effort came from the town itself, from the people and notfrom the external power of the ruler or overlord, is the fact whichfirst makes the history of these municipalities interesting. 

There are two facts, however, which, even at this early date, begin toinfluence the internal history of the communes. These are theinfluence which the Church, [7] through its bishops, began to attain inthe civil affairs of the country; and the idea beginning to gaincurrency that the locality where a number of individuals, howeverwretched in state, were collected together, would afford a saferrefuge than the open country to the oppressed, the homeless and theoutcast. I will briefly consider the latter first, as of lessimportance, though not unconnected with the former. 

In the period of great confusion in all relations of property whichensued from the Lombard military system of small independentlandholders and a few great overlords, with a nominal royal ownershipof title, and before the feudal system was established, with its ironrules in regular working order, constant inequalities of wealth andconsequent changes in the relative positions of individuals were sureto ensue. In practice if not in theory, might makes right in such astate of society. The weaker goes to the wall, and the stronger gainsin strength by his downfall. Besides, it was long before the rovingand predatory instinct of the barbarian was moderated; and his weakerneighbor was the natural prey of the more powerful landholder, anexample not unfrequently set by the king himself. Now, if the weakerparty remained to brave the attack and was conquered, he was reducedto a state of villeinage or of dependence more or less complete. If onthe other hand he wished to escape this change of condition, where washe to find refuge? The only safe asylum in those days of rapine andviolence was that offered by the Church and its precincts. The churchof the greatest importance in the district, in this early age when nowalled monasteries existed, would without doubt be that situatedwithin the limits of the nearest town. To this haven then comes theoutcast, hastily collecting his family and all of his wealth of aportable character; the country loses a small landed proprietor, butthe 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 aslow as the great numbers of the semi-servile population, but much thatwas new and of a better character and intelligence, and even a largeamount of property, which later gave birth to commercial and otherinterests, were introduced by members of the higher classes fleeingfrom their more powerful neighbors. Also the human instinct of seekingfellowship in misfortune probably assisted in increasing the numberswhich in times of trouble flocked towards the towns as a haven ofrefuge and a place to seek support. To see how they were in a measureenabled to attain these results, we must now consider the first of thetwo facts mentioned above, that is, the power in civil affairs gainedby the bishops. 

When the Lombards of the conquest, in their hatred of everything whichsavored of the old Roman civilization, overthrew all the establishedoffices of city government to replace them with others of barbarianname and origin, or to leave them unfilled altogether, among thetime-honored officers of the Roman rule was one whose powers wereeverywhere recognized, even if at present it is a little difficult todefine with precision his duties. I refer to the _defensor urbis_. This office came into prominence when Roman despotism found that itwas 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 thecities against the exactions of the imperial ministers. He enjoyedmany important privileges of jurisdiction, and these were materiallyincreased by the legislation of Justinian; and soon the _defensor_became an important officer of the municipality. [8] What particularlyconcerns us is that he was the only municipal officer who was electednot by the votes of the _curia_ alone, but by those of the wholepeople forming the _municipium_, including the bishop and his clergy. Now in the period just preceding the invasion of the barbarians, theclergy alone possessed any energy and influence; so into their handsfell the control of this new institution, and consequently all thatremained of life in the municipal system. 

As in city matters these conditions remained unaltered after thecoming of the Lombards, what was more natural than that the bishopsshould retain their moral position of defenders of the people, even ifwe admit that the form of the office fell with the old administration?To these considerations we may add two important facts: that theoffice of bishop was for a long time the only one in the election towhich the people--and by this term I mean the people as a whole, notthe _populus_ of the old laws and charters--had any voice whatever;and that the bishop, from his spiritual position as pastor of theflock, and from his civil position as having great legal influence inthe town and being probably the only man of superior intellectinterested in the internal affairs of the community, was the properand most effectual mediator between the people and their temporalrulers. Hence arose that important influence of the bishops which wasto have so perceptible an effect on the subsequent development of theprinciples of liberty in the communes. 

To appreciate properly, and to give the true value to this power inits later progress, we must remember one thing: that it did not haveits origin by any seeking of power by either the Roman or theAmbrosian church as a body, in any concerted effort to extend theecclesiastical power at the expense of the civil. It came from thespontaneous effort of the pastor, the natural and at that time theonly protector of the people, trying to save his flock from theextortion and the injustice of their temporal rulers. In addition tothis it must be remembered that at that time the office of the bishopwas the only one where even the shadow of the democratic idea waspreserved, the only one where the lowest of the people, theoreticallyat least, had a voice in the election. In later times, when the feudalsystem becomes established in its completeness, the position of thebishop undergoes a great change, as his relations to the state and tosociety become more complex in their character; and his importance inthe community, while it at first increases, in time surely diminishes, under the influence of his double relation of lord and vassal to somehigher temporal power. When he in his turn becomes the possessor ofpolitical power as a great baron or as head of a _civitas_, hisinterests, and consequently his influence, are concerned withintriguing and with efforts for his own political advancement, in manycases leaving but few traces of the old relation of "defender of thepeople. " It is, however, of importance to note that this decline inhis prominence in civil life is commensurate with the diminished needby the people of his protection, owing to the steady increase in thesecurity and independence of their position. 

To sum up briefly the chief characteristics of the early and obscureperiod which we have been considering, I think we can truly call it atransition period, and its history a tottering bridge from the deadRoman municipal system of the past, to the new state and city life ofthe future; from a state of society where, as we have seen, the cityhad changed from a political to an administrative division, to onewhere the city was to prepare itself again to claim, and eventually, by the growth of internal resources, to gain the lost function ofsovereignty. The condition of the people during this time we have seento be wretched in the extreme; the dismantled city but a bunch ofcomfortless dwellings; its inhabitants but a semi-servile population, with a small admixture of refugees of a better class; the cityoccupying but a subordinate place as part of the rural holding withinwhose limits it stood; whatever of wealth it contained an easy if nota legitimate prey to the turbulent spirits, whose mutual contests keptthe surrounding country in a continual state of disturbance. The onlymen of any influence in the community we have seen to be the bishops, who, while steadily gaining in rank and power, stood forth asdefenders of the people. During all this time, however, the new sapbrought by the northern conquerors has been slowly but steadilyentering into and forming the constitution of the people. The chasteand uncorrupted Northmen have by means of legitimate intermarriagewith the best of the enervated inhabitants of the land, raised up analmost new race, who combine in their nature the humanizing effects ofthe old civilization with the love of independence and the temperatevirtues of the northern conquerors, a race willing to benefit by theexperience of the past, and resolved to carve out for itself a new andindependent 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 ofdevelopment rather than one of transition, of growth rather than ofchange. We have before us the task of tracing the advance from aperiod of barbarism to one when the feudal system had obtained analmost complete domination over the social system of Europe. Considering the principles which lay at the base of the society of newEurope, this system is a natural, indeed an unavoidable evolution fromthe stage of barbarism and social disorganization. The confusion inall social and economic relations consequent on the combination of theold and the new elements in European life, had led to a state ofdisintegration that could not continue. A new regulative force wasrequired which would at the same time have power sufficient to controlthe various warring elements with which it had to deal and reduce themto some sort of harmony, and yet which would not in its nature be inopposition to the decentralizing spirit and the idea of individualindependence, which formed the most marked characteristic of thedominant element of the new society. Feudalism sprang from the midstof barbarism not by a sudden birth, but by a growth at once naturaland necessary: natural, because it was but a regulation by law ofconditions produced by the character of the people and their mode oflife; necessary, because the progress of civilization was carryingsociety ahead of the stage of anarchy and barbarism in which theoverthrow of the old regime had left it. 

The economic changes which were produced by the transition to the newprinciples represented by the feudal system, are as great and in theirway as important as the political ones. When we say that feudalismrepresents the transfer of the dominant power from a central head toscattered members, from the capital to the castles, we speak of it inits most prominent, its political character. But we must not forgetthat this transfer also meant a great economic change in theorganization of society: that it meant a transfer of the seat ofeconomic importance from the city to the country; the spirit of thetimes requiring, especially in the earlier stages of the developmentof the institution, that the seat of wealth should follow the seat ofpower. I note this now because we shall soon have occasion to considerhow important a factor, in the earliest period of the development ofthe cities, their entire lack of prominence in both political andeconomic affairs was to prove itself. Under the old Roman system, aswe have seen, the city was the important unit: Rome was a subduer andan upbuilder of cities. Under the new Teutonic element the land iswhat 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 modernsociety of the feudal age, the "gentleman" could not be such withoutowning land. 

This opposition between the citizen, the burgher, and the landowner, the baron, leads us to a conclusion of the utmost importance to thewhole study of city life during the middle ages. We note the universalprevalence of the _forms_ characteristic of the feudal system, andfrom this we conclude that its _principles_ were as universallyadopted. Now this is to a certain extent an error. There were certaininstitutions which from the very nature of their origin and of theprinciples on which they were based, must have been, at once in theiridea and in their structure, opposed to the fundamental principle offeudalism. The Roman Church, for example, conformed itself to theforms and customs of this system, but never lost its structural unityand centralization, ideas founded on principles which stood in directopposition to those of feudalism. So it was, though perhaps in a lessdegree, with the cities. Though adapting themselves in many ways tofeudal forms, here the idea of democracy was as strong in itsopposition to the dominant principle of feudalism, as ever was that ofcentralization in the Church. The people, in their own conception atleast, stood out as an organic unity, and they considered their rightsand duties as matters which concerned them collectively, notseparately, as the commonwealth, not as individuals. Of course it waslong before any such opposition assumed a definite form and shape, before even the people became conscious of its existence; but what Iwish 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 lifein the middle ages. 

In outlining the course of the history of institutions, it is seldomthat we are so fortunate as to find definite landmarks by which we canaccurately mark the chronological course of their development. Thegiving of definite dates for the progress of ideas is in most casesboth misleading and illusory, as, except in instances of violentrevolution, changes are apt to be gradual, rather than immediate andarbitrary. But we can indicate the periods of progress by comparingthem with the contemporary political changes, and roughly designatetheir eras by the dates of prominent political events. In doing this, however, we must always remember that the dates given, while definitefrom a political standpoint, are in most cases, from an institutionalstandpoint, only indicative of a more or less extended period ofchange. This fact being recognized, let us proceed to examine thechanges introduced into Italy by the Carlovingian rulers, and thecondition of the society upon which these changes were engrafted. 

When in the year 773-774, Charlemagne, in pursuance of his idea ofuniversal empire, and aiding the Pope as "Patricius" of Rome, enteredLombardy with his army, took Pavia after a siege of six months, andshut up Desiderius in a monastery, he found in Lombard society a welldefined, if not a perfectly developed system. In all their relationswith other nations, the evidence of history proves the Franks to havebeen a conquering rather than a colonizing race; consequently we mayexpect to find that in their conquest of Lombardy, they rather gaveher only new rulers without materially interfering with the conditionof the inhabitants or altering their mode of life. The institutions ofthe Frankish nation were similar, in many important matters identical, with those of their neighbors across the Alps; so the changesintroduced into the Lombard system by the Carlovingian rule are, witha few exceptions, not such as affect the integral structure ofsociety, but for the most part only such as refer to the character andposition of the central or ruling power. 

I say with a few exceptions, for among these very exceptions are to befound certain alterations in the government of the cities, introducedchiefly by the necessities of the system of central governmentestablished by Charlemagne, but also partly by the claims ofindividuality, which at this time first began in the cities timidly tocall for recognition. The very relation of the cities with the centralpower seems to me to be a much more important factor in their growthduring this period than is generally supposed; for it not only securedto their inhabitants better chances of justice and protection from thepowerful local rulers, but, bringing them, through certain officers, into direct connection with the head of the state, added not a littleto their moral importance, a condition which in a growing community isalways closely followed by an increase of material importance. According to their size they were the seats of courts of varyingdegrees of importance, and from them as centres proceeded the acts ofroyal officers, both ordinary and extraordinary. Ticinum was thecapital, where in Lombard times the king had his palace. [9]

For a satisfactory study of the development of the municipalinstitutions we need a thorough understanding of the organization ofsociety at this time, and especially of the relations which themunicipal and rural communities bore to one another and to thegovernment. I will endeavor to give, therefore, a description ofLombard society about the close of the eighth century, as brief as isconsistent with a clear understanding of these relations, and ascomplete as the great difficulties of the subject will permit, pointing out, whenever they are authentically traceable, the changesintroduced in consequence of the Carlovingian conquest. 

When we reach in Lombard history the period when the power of thenative kings was first overthrown by foreign arms, we are no longerconfronted by many of the problems which necessarily formed animportant part of the earlier portions of our investigation. I meanthe problems which arise in a state of society where the mass ofindividuals forming it is made up of two elements, a conquering, dominant one, and a conquered, subject one. During the two centurieselapsed since the Lombard barbarians conquered Italy, the two races, originally so different in their ideas and in their character, soopposed in their customs and in their nature, have been slowly butsurely blending together, on the strength of common environment and bythe necessities of mutual relations: so that by the last half of theeighth century, we can truly say that national differences, as such, have disappeared, and left behind them a single race, a combinationbut still a unity. We no longer have to deal with a doublenationality, with the northern conquerors and their southern victims, with the oppressed and their oppressors. In considering thedevelopment of the institutional life of the people, we need no longerseek for differences, but may assume the easier task of tracingsimilarities. 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 stepsor indicate the various influences, the civilizing effect of theChurch, the restraining power of the law, by which this completeamalgamation of two distinct races became an accomplished fact; weneed only to note that the unity of the race was achieved. EvenMacchiavelli recognizes this fact and, speaking of the time of theCarlovingian conquest, in the brief review of the history of all Italywhich forms the first part of the first book of the "FlorentineHistory, " he truly says that, after two hundred and twenty-two yearsof occupation by the Lombards, "they retained nothing of the foreignersave the name. "[10]

But we must always bear in mind that it was not a process ofabsorption of one race by another, but a process of combination, ofamalgamation; a levelling process, by which some members of theconquered people, by natural and economic causes, were raised to thelevel of their superiors; and on the other hand, some of theconquerors, by reason of similar causes, fell to the rank of thesubject population. By manumission and by the various forms ofvassalage more or less honorable, and by gaining some economicimportance by trade and other means, many of the descendants of theRoman population gained admission to the ranks of the Arimanni, andobtained the full franchise by the possession of landed property. Byforfeitures, consequent poverty and ultimate pauperization, many ofthe Lombard stock lost their rank and their lands and entered the samestate of vassalage with the great body of the people. We see evidencesof this change, this levelling up and levelling down, all through themilitary code of Liutprand, and in the later one of Aistulf can evenmore distinctly trace its progress; and without entering into furtherdetail, we can definitely state that, by the time we are nowconsidering, all traces of distinct race-origin had disappeared in themass of the people, and the only safe distinction that we can draw isto say that among the families of the dukes and greater nobles, theLombard stock was preserved comparatively pure, and that the serfpopulation 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 thisperiod, we find them practically unchanged. The _civitas_ still standsas the sectional unit; the territory with its city still representsthe administrative division of the state. It is fundamental to acorrect understanding of the early development of communalinstitutions that we should have a thorough knowledge of the meaningof this term _civitas_; of the extent of its application and of itslimitations. I used the words "territory with its city" in definingthe administrative division of the state, and perhaps this termdescribes the _civitas_ better than any single word would do. In theRoman municipal system we have the city with its surroundingterritory, over which extends the jurisdiction of the _curia_; in theLombard system we have the territory, the land, in some part of whichis located a city, a fortified place. 

This is to my mind the important point which settles satisfactorilythe vexed question of the dominance or the disappearance of Romaninfluences. The institutions of the Lombards were similar in characterto those of the other Germanic races, and the continuance of anyoverruling municipal influence among them would have done violencealike to their traditions and to the nature of their race. The oldmunicipal predominance as a system disappeared, the old municipaldivisions and many of the minor forms and offices as a fact remained. It is these latter which give some color to the arguments of writerslike Savigny, [12] who endeavor to maintain the continuance of the oldRoman _curia_. They find evidence of the continuance of oldboundaries, of many old names and many old executive functions, andfail to appreciate that the principle which lay back of and was makinguse of these old forms as convenient channels for the expression ofits power and of its control, was an entirely new one, based on ideasfundamentally opposed to those of the civilization it had conquered. This slight warning is necessary so as to avoid any error in theconception of the significance to be attached to the geographicallimits of the divisions of territory we are considering. 

The word _civitas_ has the same signification as _comitatus_, whenthat word was used with the meaning of a territorial division; andincluded all the territory, with its lands, its villages, itsfortified places and its city, which came under the jurisdiction of a_dux_ or _judex_, or in Frankish times of a count, when we arestrictly 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 isindifferently called in the Lombard records _territorium, fines, civitas_, or _judiciaria_. The identity of all these terms admits ofeasy proof from all the documents, public and private; and numberlessinstances could be cited showing an interchange of terms in describingthe same locality. 

I will mention in illustration of this fact the rather neat example ofa document of the year 762, published by Brunetti[13] in his CodiceDiplomatico Toscano, in which three of these terms are usedinterchangeably in the space of a few lines. It is a contract by whicha certain Arnifrid, an inhabitant of Clusium--the modern Chiusi--who"in clusino territorio ... Natus fuit, " pledges himself to live on acertain property, and says "nullam conbersationem facias nec in clusionec in alia civitate habitandum, nisi.... &c. , " and promises to payfifty _solidi_ if "pro eo quod ipsa pecunia demittere presumbsero autde judiciaria vestra suaninse exire voluero. " The contract is "Actumin 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 needto remember that things which are equal to the same thing are equal toeach other, to recognize the identity of the terms. If we look atdocument number eight in the same collection, [14] we will further seethe territory of Chiusi referred to as "fines clusinas. "

Hand-in-hand with the growth of episcopal organization we see anotherterm coming into use in connection with the same land division, andthis also is an administrative one, but of the church simply, and onlymade use of by conversion or carelessly when applied to a civil area. I mean the _districtus_, which term is properly applicable only to thejurisdiction of a bishop, and designates the limits of his episcopalpower, that is, his diocese. The reasons for this term being used inlater times occasionally for the civil division, the _civitas_, aretwofold. They result, firstly, from the confusion which arose betweenmatters of civil and ecclesiastical jurisdiction, when political powerwas given to a large number of the bishops, and when they united totheir religious duties as pastor, the judicial and sometimes even someof the military duties of _comes_ and _judex_. And secondly, in theimportant fact that in almost all cases the boundaries of a bishop'sdiocese coincided more or less exactly with the limits of theauthority of the state officers; so that the division which should becalled a _civitas_ or _territorium_ from the point of view of civilgovernment, should be called a _districtus_ from that ofecclesiastical government. 

Where we find at once the most important and, if not rightlyunderstood, the most perplexing traces of the survival of the oldRoman municipal system, is in this matter of territorial boundaries. According to the Roman system, as we have seen, the city was theimportant administrative unit, and each city was surrounded by a beltof rural lands, more or less large according to the size andimportance of the city itself. This of course resulted in a divisionof the whole country into a number of districts whose boundaries weredefinitely marked, perhaps even jealously guarded. Now, when theLombards took possession of the country, while they rejected theprinciple of the municipal unit, as foreign to the character andinstincts of their race, they could not fail to see the practicalutility of using, and the actual difficulty of overthrowing, a systemof land division which custom and authority had united in renderingalike definite and convenient. What was the result? They made use ofthe old boundary lines, leaving their limits, as far as we can judge, untouched, and substituted as the fundamental principle of theiradministration, in place of the Roman idea of the _municipium_, thethoroughly Teutonic idea of the _civitas_ or country district. Coincident with these time-honored boundaries which served to mark thelimits of the jurisdiction of the duke and the _judex_, are to befound 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 behad by reference to the controversy which arose in the first half ofthe eighth century between the bishops of Arezzo and Siena, whichdispute was based on the fact that for reasons definitely stated thesetwo dioceses formed an exception to the general rule. The strength ofthe proof lies in this exception, which had a well-known cause for itsorigin. Some of the documents[15] in the case, of the year 715, showthat the bishop of Siena claimed for his jurisdiction certain churcheswhich belonged to the diocese of Arezzo, basing his claim solely onthe ground that these churches were situated in the _territorium_ ofSiena. The bishop of Arezzo, on the other hand, claims them as part ofhis diocese, on the ground that they had formed part of it ever sincethe beginning of Lombard rule in Italy; and--which is the part ofimportance to us--gives as the only reason for their having beenattached to the diocese of a neighboring _territorium_, the fact thatat that early date there was no bishop in the _territorium_ of Siena. That a claim of such a character should have been based on theargument of the natural coincidence of the boundaries of _territorium_and diocese, is sufficient proof of the identity of these limits atthat age. In a bull of the year 752, [16] Pope Stephen II. Decides toadhere to the already existing diocesan divisions, and adjudges to thebishop of Arezzo the churches "quae esse manifestum est subconsecratione et regimine praefatae S. Aretinae Ecclesiae, territoriumvero est prefatae nominatae Civitatis Senensis. "

We see then the perpetuation of the old Roman land divisions in thenew commonwealth through the medium of the _civitas_ and the diocese. How long these divisions remained intact and what were the causes andthe extent of their final overthrow, forms part of the history of thelater development of the Italian communes. Here I will simply indicatethe fact, that among the reasons which led in most instances to adeparture from this system of land boundaries, are to be found some ofthe most important causes for the development of freedom andindependent jurisdiction among the cities. It is to the destruction ofthis identity of interests and of government which existed betweencountry and city, that is owed the ultimate predominance of thelatter, and its regaining its ancient position of a self-centeredunity; although in its new form we find this depending on theprinciple of individual liberty, instead of being based on theprinciple of government by a central power. Whether this emancipationfrom the bonds of a rural dependence was brought about by the practicelater entered upon, of breaking up the counties into a number ofsmaller units with the so-called "rural counts, " each ruling over a_castellum_ or fortified village; or by the fact that many of thebishops obtained political as well as religious control over a cityand a limited area of the surrounding country, generally extendingonly three or five miles beyond the city walls; or whether thisfreedom was the result of the spontaneous growth of civic and economiclife within the city itself; or finally, whether it came from acombination of all these and many minor causes, is a questionwhich--for the early period of the development at least--the progressof our investigation will answer for itself. 

It will, however, be impossible for us to understand thoroughly therelations of the city under Lombard and Frankish rule to the centraland to the local government, unless we know somewhat of the local andstate officers who exercised jurisdiction within the territoriallimits just described. By a consideration of their special powers andof their special duties, we must learn all that we can know with anydegree of certainty with regard to the position of the city in thesetimes. With this in mind, let us first examine the office whosefunctions it is at once the most difficult and the most important forus to understand in all its bearings--that of the _Judex_. We mustconsider it not only in the relation which it bears to the highergrade of officers, the Lombard duke and the Frankish count, but alsoin its relation with the lower officials who severally enjoyed more orless 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 onthe growth of the municipal idea, and also its connection with thepolitical jurisdiction, commonly combined with it in the person of asingle official. 

In considering the institutions of a comparatively crude state ofsociety, such as existed in Europe in the early middle ages, it ismisleading if not impossible to differentiate to any great extent thevarious functions and kinds of power which were commonly centered inthe same individual. Consequently the only safe way to give a clearidea of the position and the powers of the _judex_, is to give adescription of the various offices to which judicial authority wasattached, in degrees more or less complete, corresponding to thesocial and political importance of the person exercising thisauthority. 

In the Lombard system, at the head of each _civitas_, as lord and asjudge, was the _dux_, or duke. His title and his office being but therelic of his original high position of leadership in the army of theinvasion, when his command was only subject to that of the king, theleader-in-chief of the army-nation and head of the militaryconstitution, he held directly from the king, attended the royal_placita_ as the king's vassal, and held _placita_ of his own withinhis own jurisdiction, and over which he presided in person. Beyond theduties of his own particular jurisdiction his chief office was toassist the king by his presence and his counsel, when the king gavehis judgments at the annual assembly in March, at the capital Ticinum. The importance of this concurrence of the _judices_ in all the king'sdecrees and official acts is illustrated by the fact that cases arerare in which this concurrence remains unmentioned. The usual practiceis to introduce in the prologue which is commonly attached to the lawsgiven out during each year of the king's reign, after the mention ofthe date "Kalendiis Martiarum, " some such expression as "cum nostrisJudicibus";[17] or "ad nos conjungerentur Judices";[18] or "persuggestionem Judicum";[19] to which is sometimes added the formula"omniumque consensum, "[19] or "cum reliquis nostris Langobardisfidelis. " That legislation was not considered valid until such consentand advice was obtained, we can see from the prologue to the lawsissued in the thirteenth year of the reign of Liutprand, in which herefers to certain important "causae" which had come under hisjurisdiction, and for which additional legislation was necessary, thelaws already existing failing to reach them. To meet the exigency newlaws are enacted, but the king especially states that the cases mustremain in abeyance until the new laws are confirmed by the _judices_at the next assembly in March. In speaking of these "causae" in theabove-mentioned prologue to the laws, he says: "Proinde providimus easusque ad suprascriptum diem Kalendii Martiarum suspendere dum usquenostri ad nos conjungerentur judices, " etc. [20] This attendance at theroyal _placita_ represents the most important of the legislativeduties 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 withregard 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 ofall the inhabitants of the _judiciaria_ who were entitled orcompelled, by the forms of their tenure, to bear arms. Ample proof ofthis is to be found throughout the law codes, but we need not pause tocite such confirmation, if we remember the natural evolution of theoffice of _dux_ from his position in the original Lombard militarysystem. As a good example of this military leadership we may refer tothe provisions of the twenty-ninth law in the sixth book of the lawsof Liutprand. [21]

What is of the greatest importance to us, however, in bringing out therelations of the cities to the rest of the community in Lombard andFrankish times, is the position of the _judex_ as duke and as countwithin his own _judiciaria_, that is, within the _civitas_ of which hewas both lord and judge. It was through him, or perhaps I should saychiefly through him, that the city was at this period connected withthe state; and it was principally by the exercise of the functions ofhis office that the city formed a part of the state. His officialresidence, in the majority of cases, and his courts, were situatedwithin the city's limits; thus making the official machinery ofgovernment a part of the city life, and causing the city to become anactual if not a legally recognized part of the constitution of thestate. As far as this investigation is concerned, this represents theprominent feature of the power and position of the head of the_civitas_. We must be careful, however, to avoid any confusion ofideas as to the importance which it gave to the city as a municipalunit or as a corporation. It was in no way what we could call amunicipal government, even admitting a rather loose interpretation ofthe term, as the supporters of the theory of the survival of the Romancurial system would have us believe. [22] The _judex_ may be called"the highest municipal officer among the Lombards, " and thisdesignation still be correct, though perhaps misleading. He was thehighest officer of the locality, and his official duties were for themost part carried on within the city; but the leading fact we mustkeep 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, thathis powers over the rural portions of the _civitas_ were in no senseadded to any purely municipal powers he may have possessed; but, onthe contrary, if we are to draw any distinctions, the municipalityformed a part of the land division. That the whole _civitas_ wascommonly 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 andexpediency and by the force of old association, to lead to anyconfusion in appreciating the proper place of the city. Where therewere to be found buildings suitable for the residence of the _dux_, and where was located the largest collection of individuals, wasmanifestly the most appropriate place for holding the courts andsettling the disputes of the inhabitants of the whole _civitas_, andthis formed a natural centre for the machinery of government. Butevery inhabitant of the _civitas_ had equal rights with the townsmanproper, and, as in the old Greek [Greek: polis], the most remotecountryman dwelling on the borders of the _civitas_, if he possessedthe franchise, was as much a citizen of Padua, Siena or Milan, as ifhe 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, whichI will briefly indicate before passing on to a little more detailedtreatment of the powers and the duties of the _judex_. In the firstplace it has been made clear that at the time under discussion nothingthat could correctly be called a "municipal system" existed inLombardy, and the city, _as such_, had no independent existence orindependent relations with the state. And secondly, it cannot but bemanifest that the position that the city did occupy as actual, if notnecessarily as legal, centre from which issued all the administrativefunctions of the district, the residence of the chief authority andthe seat of his courts, would have a marked tendency to increaseslowly, perhaps imperceptibly at first, the importance of its positionat once in the _civitas_ and in the state, and at the same time toimprove the character of its inhabitants and in time increase theirwealth. That this ultimately came about the development of the laterindependent communal life is a proof, and the tardy steps by whichthis was attained but serve to show the difficulties consequent on soslight and so feeble a beginning. 

The obscurity which promptly descends on the brain of the intelligentreader who endeavors to gain a clear idea of the state of society orof the administration of government in these early ages of Italianhistory, makes the careful student very skeptical of any precisepresentation he may find of them, and causes him to be particularlycautious and proportionately diffident in making, himself, any verydefinite statements concerning them. If he be a wise man and wish tomake his investigation of some use to others, he frequently says "itseems probable, " and he particularly avoids mentioning dates which arefixed and immovable. If this may be said of all matters not belongingsimply to the narrative portions of history at this period, particularly true is it of the different functions attributed tovarious officers of local government, whose very titles we sometimeshave to infer from their duties, and whose duties we often have toinfer from their titles. 

To these the _judex_, though the most prominent, cannot be said toform an exception. That he was the head of the district judicialsystem has in part been already shown, and will come out more clearlywhen we come to define the powers of some of his subordinates. Hisleadership in war we have seen to be but the natural continuance ofhis original office; and that as _dux_ he was to be ranked among thefirst nobles of the land, the "optimates, " the "viri illustres, " wecan see from the following passage in the laws of Liutprand, when inthe prologue to the third book already quoted, he gives forth theedict with the judges as "una cum illustribus viris optimatibus meisex Neustriae et Austriae et Tusciae partibus vel universis nobilibusLangobardis. "[23] Although the position of the _duces_ as nobles ofthe land never altered, their power relative to that of the kingsuffered many modifications. The ducal power--"principes" ofTacitus--preceding among the Lombards that of the king, we see thedukes exercising much greater control in the earlier stages of themonarchy: even, on the death of Clefis--576--actually establishing asort of aristocratic republic, under the leadership of thirty dukes, which lasted for ten years; after which time, on the event of adangerous war with the Greeks and the Franks, Authari, the son ofClefis, gained the throne by election; the dukes giving up to him, says Paulus Diaconus, [24] the half of their estates for the support ofhis dignity, retaining, however, the rest, not as servants of theking, but as "principes" of the people, an important distinction. Agiluf--591 to 615--originally duke of Turin, met with much oppositionfrom the power of the dukes; but when we come to the time ofRhotari--636 to 652--we find their power already declining, and in theeighth century, as for example under Liutprand--712 to 736--the lawsshow them reduced to the position of the other _judices_, but stillrepresenting 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_ washolding 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, andhere was centered the fiscal administration of the _civitas_. Todescribe in detail the composition of these _curtes_, theirjurisdiction and methods of procedure, would require a whole chapterof no mean proportions, and however interesting in itself, would beout of place in the present investigation. All that it is needful forus to consider is the relation of these _curtes_ to the municipalitiesin which they were located. Of their location within the city wallsthe proofs to be found in numbers of the old documents are to meconclusive. I will give a few examples, however, commencing with twofrom the documents which have already been quoted from Brunetti, relating to the dispute between the bishops of Siena and Arezzo. Inthe 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 ofwitnesses "in Curte Regia Senensis. " In a document of the nextyear[27]--716--we find "Ebugansus, Notarius regiae Curtis, " takingpart in the procedure in a case between the bishops of Pistoia andLucca; and a little later, in the year 756, is mention of an exchangeof property between "civitis regia lucencis" and the church situatedin that city. [28] In the "Opusculum de Fundat. Monast. Nonantulae, "published by Muratori, [29] we find a donation by King Aistulf to thatmonastery: "prope castellum Aginulfi, quod pertinet de curte nostralucense, et duas casas masaritias de ipsa curte"; and "granum ilium, quod annue colligitur de portatico, in Curte nostra, quae sita est inCivitate Nova. "[30] In Carlovingian times Charles the Bald, in theyear 875, in the "Chronica Farfense, "[31] appears as saying, "in Curtenostra infra Castrum Viterbense": elsewhere "curtis regie Viturbensis"is spoken of[32]: and later, in 899, Berenger gives to the bishop ofFlorence "terram ... Pertinentem de curte Regis istae Florentiae"[33]:and finally, not to multiply examples, I will mention a privilege ofKarloman's, published by Ughelli[34], by which he gives to the bishopof Parma certain regalia: "id est curtem regiam extructam infracivitatem Parmam cum omne officio suo, " etc. From even these fewinstances we can see the connection between the _Curtis Regia_ and thecity which gave its name to the _civitas_, a connection the importanceof which we must not fail to appreciate, in consideration of the greatinfluence which it exercised in the future development of themunicipal unit from a beginning so insignificant. 

Of some importance in connection with the early history of the citiesare the questions which arise in relation to the fiscal duties andprivileges of the _curtes regia_ and its officers. In it was centeredthe fiscal administration of the kingdom; and its officers, in thevarious grades from the _dux_ downward, received and were responsiblefor the revenues of the state. So prominent a part belonged to thisform of the functions of the _curtes_ that it is quite common to hearthe revenues themselves, by a transposition of terms, called by thatname, or by that of _palatium_, a word sometimes found even for the_curtes regia_ in their proper general sense; but this, from what Ihave been able to gather concerning its legitimate use, shouldproperly be applied only to the residence, or by conversion therevenues of the king himself[35]. What is of interest to us in thismatter is the fact that the _curtis regia_ fell heir to the _publicum_or communal property of the old Roman _curia_, when these wereoverthrown by the Lombard conquest. 

In considering this phase of civil administration under the Lombardsystem, we are again brought face to face with the old question of thesurvival or non-survival of corporate existence among the cities. Forif it could be proved that the municipality in its corporate capacityretained the communal property and administered it, there would appearto be good grounds for the assertion of the continuance of some formof quasi-independent municipal government; but if, on the other hand, it were found that the property of the municipality passed to the newhead of local administration or to the central power, it would beevident that the continuance of the municipal system as such was alogical impossibility; for, deprived at once of its property and ofits revenues, it would have had no vitality to keep it from a speedyend. 

In investigating a question of this nature from the sources at ourdisposal in a period of history so obscure, we cannot expect to findany definite statements sufficiently precise to set at rest at onceall opposition and discussion; but after considering the character ofthe people we are investigating and studying their institutions, andafter a careful examination of the laws and records which form thesources of our information, we are, I think, in a position to be ableto give a sufficiently decided opinion as to whether a particular setof facts or conditions could possibly have existed in a state ofdevelopment and in a society of a given character. Thus it is inregard to the matter in hand. From the numberless cases in which the_publicum_ is mentioned in the documents from which we draw ourmaterials, it seems to me possible for a critical examiner to come tobut one conclusion, if, as is quite essential, he take intoconsideration the unmistakable spirit of these writings, and if hegive a legitimate interpretation to the various terms employed. Tocite in direct proof any individual instance is, perhaps, impossible;but indirect evidence is forthcoming in abundance, and of a characterto 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 andrevenues, taxes and fines formerly belonging to the organizedcorporations of the Roman municipalities, and that the _curtes regiae_were the channel through which these were collected, divided andexpended. 

The grounds on which this assertion is based are the continualrecurrence of examples of functions of a fiscal character beingexercised by the head of the _civitas_ and his officers, and by themalone; and it appears to me that it could only be by a completemisunderstanding of the spirit of the early writings, and by acomprehensive misapplication of the terms used in them, that thesefunctions could be referred to any other power. These functions of theadministration may be grouped under three main heads, viz: 1. Finesand forfeitures, which, of course, played a very prominent part underthe 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 ofthe _civitas_ as a public officer. 

Of the fines and forfeitures paid into the _publicum_, we find that apart went to the royal treasury and a part to the _judex_, and in somecases to the informer or the prosecuting officer; and at differenttimes we find these proportionate amounts definitely defined--as, forinstance, in the time of Charlemagne two parts went to the king andone part to the count who acted as _judex_;[36] this we know from twoof the Lombard laws of that emperor. [37] In one of these, [38] speakingof those who evaded military service, he says: "Heribannum comesexactare non praesumat: nisi Missus noster prius Heribannum ad partemnostram recipiat, et ei, " the Count, "suam tertiam partem exinde perjussionem nostram donet. "[39] We even find evidence of quite a largeamount of liberty used by the _duces_ in the ultimate disposal ofproperty coming under their jurisdiction by forfeiture, the morepowerful making use of it precisely as if it were private property. For example, in the Chronica Farfensis[40] appears a case judged byHildeprandus, _dux_ of Spoleto, in the year 787. A certain nun namedAlerona, for having married a man named Rabennonus, "secundum legemomnis substantia ipsius ad Publicum devoluta est"; a little laterRabennonus, for having killed a man, "medietas omnis illiussubstantiae ad Publicum devoluta est. " In consequence, in poeticjustice and for the good of his soul and the king's, Hildeprandusquite arbitrarily presents "omnem praedictam illorum substantiam, qualiter secundum legem juste et rationabiliter, ad Publicum devolutaest, " to the Monastery of Farfa "pro mercede Domnorum nostrorum Regumet nostra. " Here, as in many other cases, we see the _dux_ makinggifts of property belonging clearly to the _publicum_, to personsfavored by him and for his own benefit. Such a condition of affairswould certainly never have existed had public property beenadministered by authority other than that of the _dux_. 

With regard to the revenues falling under the second of the roughdivisions we have indicated--taxes and privileges--it is easier to seewhy differences of opinion should have arisen; for here, especially inmatters relating to the collecting of taxes and dues, we areconfronted with the names of a large number of lesser officials andsubordinates of the _judex_, some of which are undoubtedly taken fromthe like officers existing in the old Roman curial system. But thissurvival of names, and in some instances of offices, need cause us noalarm, for it coincides exactly with the theory presented, namely, acontinuance of many of the old _forms_ of administration controlled byan entirely new _principle_ of government. There are certain minorfunctions necessary for the support of the state which must be carriedon in much the same manner, whatever be the character of the governingpower--certain subordinate offices whose duties must be performedunder a republic or under a despotism. Taxes may be collected bywidely differing methods under the two systems, but there must alwaysbe the tax collector and the tax assessor. We can, however, see at aglance the weakness of any argument which contends that because thename and even the general duties of the tax gatherer were the same ineach case, that the whole system of administration of the taxes or ofthe community were necessarily identical or even closely allied incharacter. 

It is here we see the weakness of those writers who insist upon thecontinuance of the Roman _curia_ in the municipalities of the Lombardkingdom. They seize upon a few names, relics of Roman rule, and fromthem generalize a complete system of taxation and administration. Thatthe existence of any such system is alike contrary to fact and to thewhole nature of the Lombard people, any critical and impartial studyof the sources of government revenues at this time will make clear. Itwould be out of place to burden a paper of this character with theresults of a minute investigation into the fiscal relations of therulers and the people when this has no immediate connection with thedevelopment of municipal government; but I will state that a carefulexamination of all available sources, including documents andstatutory enactments, both public and private, reveals, to my mind, atheory and a system of raising the revenues of the state closelyallied 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 Romanmunicipal constitution. [41]

In general terms, the collectors of the revenues were called_telonarii_, or _actores, exactores_ or _actionarii_, etc. , and thetaxes they collected were the usual feudal dues, fines, forfeitures, compositions for service, etc. The nomenclature of these variousofficers and of the different duties they had to levy, varying as itdid with regard to locality, and more especially with regard totime--the Franks introducing an entirely new set of names forinstitutions often identical in character to those displaced--presentsan amount of confusion which, fortunately, it is not necessary for usto endeavor to penetrate; but, having stated the foregoing generalconviction with regard to the fiscal system, we will now pass on to aconsideration of some of the lesser offices held within each _civitas_by the deputies and subordinates of the _dux_. These, of course, wereconnected, in degrees more or less close, with the different _curtesregiae_, 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 simplydeputies of the _dux_, or representatives of his person, and holdtheir office simply by virtue of his will and under a somewhatarbitrary tenure; others, like the gastald, the _sculdahis_, and laterthe _scabinus_, represent offices which formed an integral part of theconstitution of the government, and appointment to which, whether madeby the _dux_ or by the central power, involved a necessary duty of adeterminate character. An accurate determination of the relativepositions of these various minor officials, of the extent of theirjurisdiction and of its limitations, presents one of the mostdifficult problems which the student of these dark ages of history iscalled upon to solve. The peculiar character of the sources from whichwe have to derive all our information makes it quite possible for allwriters on the subject to disagree with regard to details, and leavesa wide margin for discussion even on the important characteristics ofthe various offices. Avoiding as much as possible the points ofcontroversy, I will endeavor to give the general features of the moreimportant of these offices, the conclusions given in each caseresulting from an examination of the different theories held and ofthe 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 goesindifferently 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 morelimited character and referred exclusively to matters of a fiscalnature belonging to the _curtis regia_ or the _camera_ of the king, isa question to which the evidence to be gathered from the law codesgives no decided answer. [42] It seems probable, however, from theimportance seemingly attached to the holders of this title in the manycases in which they are mentioned in the old laws and documents, thattheir jurisdiction was of a broader character than would be implied bya restriction to purely fiscal functions; in fact, that it approachedmore nearly to the power of the _dux_ and _judex civitatis_, thoughbeing in some way of less extent or possibly supplementary to it. Perhaps the distinction would come out more clearly if we said thatthe office was characterized by its relations to the fiscal functionsof the state, but that its duties and privileges appear not to havebeen restricted to affairs of that nature. It is certainly true thatvery many instances occur in which the duke and the gastald arealluded to, whether in laws or in contracts, in precisely the sameterms and in positions which would seem to indicate an almost perfectequality of dignity. As, for example, in a meeting between Liutprandand Pope Zacharias, described by Anastasius Bibliotecharius, [43] wheredukes and gastalds are together reckoned among the _judices_: here theking goes to meet the pope "cum suis judicibus, " and gives him as anescort "Agripandum ducem Clusinum, nepotem suum, seu TacipertumCastaldium et Remingum, Castaldum Tuscanensem. " In spite of thisapparent equality, however, it seems to me nearer the truth toconsider the position of the gastald as an inferior one to that of the_dux_, especially in Lombard times, before that official was replacedby the _comes_ of the Carlovingians. 

The important point which it is necessary to emphasize in thisconnection is the fact that the gastald held his tenure, not from the_dux_ as his subordinate, but from the king in person, and for thisreason can more fitly be compared with the later count than with the_dux_ of the Lombards. Consequently it is in the matter of tenure thatI think is to be found the difference in power between the twoofficers. In addition to his official authority, the _dux_ waspossessed of a power and an influence entirely his own, derived quiteas 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 wasa powerful lord, and though he, of course, owed fealty and service tothe king, he was by no means a king's servant, like his successor theCarlovingian count. The gastald, on the other hand, was eminently aservant of the central power; and whether or not he was engagedexclusively in looking after the fiscal interests of the masters whoemployed him, he had no power and no influence except such as hederived from the source of his authority. He was a king's minister andnothing more, and we can easily appreciate that the amount of power hewas enabled to exercise could never exceed the amount of influence inlocal affairs possessed at any particular time by the centralgovernment, whose representative he was. 

But the very nature of the source from which the power of his officeis derived is what connects it vitally with the subject of ourenquiry. We have seen the _dux_ as head--in the earliest times almostindependent head--of the whole _civitas_, including rural and cityjurisdiction. We have seen him as an official, depending from theking, it is true, and holding the king's _placita_ and executing thelaw, but also holding _placita_ of his own; appearing as a powerfullocal lord, and exercising almost arbitrary power in the regulationand the distribution of the public property of the commonwealth overwhich he ruled; in fact, a descendant of the old _duces_ of theLombard barbarian host, who, perhaps, even antedating the royaloffice, held their power and their position as princes and chosenleaders of the people, rather than as appointees or dependents of anyhigher authority. In the gastald, on the other hand, we have anofficial of an entirely different type--one not belonging to apowerful class of lords or leaders which traces its origin to thespontaneous choice of the people or army, but one who gets hisappointment at the will and in the interests of the centralgovernment, and is commissioned to exercise certain functions of theadministration as an assistant to, perhaps even as a check on, thepower of the local head. 

Such an official was naturally located at the place where the districtcourts held their sessions, and where the fiscal duties which heespecially had in charge were most easily executed. As we have seen inthe case of the _dux_, convenience points to the _urbs_ of each_civitas_ as a natural centre, and consequently here again we find theoffice of gastald as another agent in bringing the municipal divisioninto prominence; but doing this, we must always remember, simply fromthe fact of convenience or fitness, and not in any sense as a matterof constitutional necessity. Like that of the _dux_, the jurisdictionof the gastald was exercised over the remotest farm of the _civitas_as much as over the palace in the city: _de jure_, the city gainednothing by the circumstance of its being the centre of theadministration of any office; but, _de facto_, the holding of such aposition can easily be seen to have been an important element in itsgrowth and development. 

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

In passing to a brief characterization of a few of the subordinateofficers, I must not omit to mention the fact that the gastald hadalso certain military functions attached to his office. When calledupon by the king he took command in the army, together with the minorofficers who were under him in his jurisdiction, such as the_sculdahis, saltarius_, [44] etc. We have confirmation of this in theconstitution "promotionis exercitus" of Lewis II. , [45] which says "utnullum ab expeditione aut Comes aut Gastald, vel Ministri eorumexcusatum habeant"; and in the life of Gregory II. , AnastasiusBibliotecharius[46] tells that at the overthrow of the _castrum_ ofCumae with the help of that pope, "Langobardos pene trecentos cumeorum Gastaldione interfecerunt. " In military affairs the command heldby the gastald seems to have been lower than that of the _dux_, theleader of all the troops furnished by the _civitas_. A right of appealto the _dux_ existed for the _exercitalis_ who was oppressed by thegastald, as shown by the twenty-fourth law of Rhotaris, [47] whichsays: "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 assubordinates of the _judex_ in administering the affairs of the_civitas_. As their relations to the urban portion of the Lombardkingdom, which is the special object of our study, were either slightin themselves or else so closely connected with those of theirsuperiors as not to merit any particular description, I will merelymention the names of a few of them and indicate their duties. Theofficer who came next in rank to the _judex_, and who, in asubordinate capacity, assisted him especially in administering thejudicial affairs of the _civitas_, was in Lombard times called the_sculdahis_, and in Carlovingian times the _centenarius_. Under himwere the _saltarius_ and the _decanus_. The _sculdahis_ acted as alocal officer under the _judex_, having limited judicial, police andmilitary powers. His jurisdiction was confined to the small fortifiedtowns and villages of the _civitas_, where he administered justice andcollected 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 deliberarepossit, dirigat ambas partes ad judicem suum. "[48] There were several_sculdahis_ in one _judiciaria_, and cases were often tried beforemore than one, [49] though each of the smaller local units seems tohave had such an officer. Paulus Diaconus[50] speaks of "elector lociillius, 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 themonastery of Sta. Maria dell' Organo, [51] where is mentioned "pratumjuris imperii nostri pertinens de Comitatu Veronensi, de Sculdasciavidelicet, que Fluvium dicitur"; and in a document published byUghelli, [52] in speaking of the bishops of Belluno, "SculdasciaBelluni" is used. In Frankish times the _centenarius_ held the sameposition as the _sculdahis_ of the Lombards: his jurisdiction wassimilarly limited to minor offences; all cases involving capitalpunishment, loss of liberty, or delivering of _res mancipii_, beinghanded over to the count's court according to the legislation ofCharlemagne. [53] The _decani_ and _saltarii_ were subordinates of the_centenarii_ and _sculdahis_. They both presided over smaller localdivisions than the _sculdascia_, and acted as deputies. In the laws ofLiutprand, [54] speaking of a runaway slave, we are told that "si inalia judiciaria inventus fuerit, tunc decanus aut saltarius, qui inloco ordinatus fuerit, comprehendere eum debeat et ad sculdahis suumperducat, et ipse sculdahis judici suo consignet. " The _saltarius_seems to have been originally a sort of guardian of forests, "custossaltuum"[55] or "silvanus";[56] and the name of the _decanus_, likethe Frankish _centenarius_, is a survival of the old decimal divisionof the army and people. These minor officers, as well as othersubalterns 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 ina certain measure characterized, the changes introduced into theLombard system of government consequent on the kingdom being absorbedinto the great empire of Charlemagne. I have said that, owing to thesimilarity of institutions between the Franks and the Lombards, thechanges made consisted rather in differences in the manner ofenforcing the control of the central power than in any alteration inthe institutional life of the people, but that there were certainexceptions 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 thecities. We must now consider the nature of these exceptions. 

Under the Lombard system we have seen the administrative unit of thestate to be the _civitas_, with its administrative head, the _dux_, atdifferent times enjoying a greater or less degree of independence fromcontrol of the central power. We have seen the _dux_ lord as well asjudge in his own jurisdiction, and standing as the successor of themilitary leader chosen by the people, instead of holding the positionof king's servant; this place being more properly filled by thegastald, who cared for the fiscal interests of the central power, whose appointee he was. Such a form of government, it can be readilyseen, left no room for any strong development of the principle ofcentralization, and no scope for the exercise of any decided power oreven of general supervision by the central authority. The heads of the_civitates_ were the king's _judices_, it is true, and assembled toassist him in judgments at his general _placita_ in the March of eachyear; but they bear the character also of local lords of no meanimportance, and in some cases possessed of no inconsiderable amount ofpower. Such a degree of individual influence--perhaps I shouldexaggerate if I called it individual independence--was, however, little suited to the idea of a universal centralized empire, which wasthe forming principle of the government of Charlemagne. Whilerecognizing the necessity of retaining the fundamental institution ofa division of the state into _civitates_, and of governing it by meansof the heads of these divisions, he wished to eliminate from theseofficers all the characteristics of local magnates, and to reduce themto the more easily controlled position of servants, and dependents ofthe king. This object he accomplished most satisfactorily by changingthe dukes or local lords into counts or king's men, by appointing aCount of the Palace for Italy, and by extending to that kingdom theperfectly organized system of central control by means of the _MissiDominici_, with the workings of which in the other parts of his greatempire the student of history is too well acquainted to need anydescription here. 

The immediate changes in the life of the people consequent on theintroduction of this system were not considerable, if we except agreat improvement in public order and a marked advance in theequitable administration of justice; but it needs no great foresightto see that the ultimate effects on the position held by the municipalunits in the community could not fail to be important andfar-reaching. The new officer, the count, stripped of all theimportance that his predecessor, the duke, had enjoyed as lord of thecountry over which he ruled, was placed in each city to govern, in theking's name, it and its _territorium_. As long as the empire ofCharlemagne retained its integrity, and as long as the reins ofcentral government were held by a strong hand and the control itexercised was felt to be positive and real, the change in thecharacter of the local governor was of little moment; but as soon asthe power of the central government weakened--during the ingloriousreigns of the immediate successors of the great emperor--its hold onthe administration of the local units slackened immediately; and inproportion as the vitality of the new central control diminishes, wesee appearing the effects which must always result when the stronghand of an active central power is removed from a system ofadministration which had been based on the exercise of such a power. These effects are the increased importance--I may now say theincreased independence--of the local units; of these local unitsthemselves as distinguished from the heads who rule over them. 

The change had made these units more organic parts of the state thanthey had ever been before: we have seen them first made prominent bybeing the seats of the rulers of the _civitas_, and now we are to seethem gain a more significant advance by coming into relation with thehead of the state directly, instead of through the personal power oftheir lord. For the local ruler has yielded his individualpre-eminence to the central government; and when this fails tomaintain its authority, in any community whose inhabitants are capableof fostering the seeds of independence once sown, it is difficult ifnot impossible for a successor to repossess himself of the privilegeswhich have been forfeited. In any state where the seat of centralauthority is distant or its power only exercised feebly and atintervals, the local units secure much greater independence andimportance, through the very necessity of performing many functionsleft unheeded by the ruler of all; and if the people are self-reliantin character, they will in time develop a sort of self-governmentwhich, although it would not at first think of questioning thetheoretical right and overlordship of the central power, willeventually brook but little interference with its modes of procedureand with its exercise of functions, which the lapse of time hastransformed from enforced duties into jealously guarded privileges. 

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

These results could hardly have been attained if society had remainedsuch that the prominence of the local divisions was dependent on theprominence of the respective heads of these divisions; but thecharacter of their local rulers once changed, and their powers in agreat measure absorbed by the act of a strong central power, when thatpower fell to pieces it was much easier for the local divisions, assuch, to increase their independence, and to utilize the advance theyhad made, by means of their more direct relation to the central power, to gain a position which they would enjoy in spite of the effortsalike of that power and of their old rulers. Such a position would notbe reached except by means of great struggles and by passing through aperiod of great disintegration and of fierce internal strife betweenopposing factions, such as in the history of the Italian communes isrepresented by the dark period between the fall of the last of theCarlovingians and the election of the first German emperor as king ofItaly; but once attained, the character of the people who accomplishedit would ensure its permanence, as long as they retained thoseprinciples of independence which had made them victorious in thestruggle. After this short discussion, in which we have traced theultimate effects of the action of Charlemagne in changing the dukesinto counts, let us look at another feature in the field of citygovernment introduced by him, the new office of the _scabinus_ or cityjudge. 

According to the theory of judicial procedure among the Teutonicnations, judgment in criminal cases was given in the open court or_placitum_, where, besides the regular judges, all or any of thefreemen within its jurisdiction were supposed to concur in thejudgment and sentence. How far this method of arriving at judicialdecisions was carried out in practice depended largely on custom andother local influences, and consequently varied greatly in differentcountries and with different nations. I do not propose to enter intothe discussion[58] of the existence of these "judicators"[59] inLombardy in the eighth century, but will only say that it is certainthat before the Frankish conquest there did not exist a class of menwhose business it was to assist the judge in disposing of cases. Ifthrough ignorance of the law or for other reasons he was unable tocome to a decision, "si vero talis causa fuit, quod ipse ... Deliberare minime possit, "[60] he could call some of the freemen toassist him: "advocis [advocet] alios ... Qui sciunt judicare, "[61]etc. , but this seems, in later times at any rate, to have been aprivilege to be used at discretion, and the persons summoned were notregularly appointed officers of the court. The Lombard codes aresilent with regard to these indicators; but Savigny, [62] in hisargument to prove their existence, claims that mention is made of themin two decisions of Liutprand of the years 715 and 716, and brings asadditional evidence a _placitum_ of 751[63] in which Lupo, duke ofSpoleto, gives judgment "una cum judicibus nostris ... Vel aliispluribus astantibus, " etc. It is of more importance for us, however, to determine the reasons for the introduction into Italy byCharlemagne of the new office of the _scabinus_, than to loseourselves in a complicated discussion of the theoretical predecessorsof these officers. 

The introduction of this new feature into city government seems tohave been the result of an attempt to correct certain abuses in theexercise 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 hisjurisdiction to his _placita_, and to fine them according to the lawif they failed to answer his summons. The fines collected in thismanner formed a substantial part of the revenues of the _judex_imposing them, and consequently arose the abuse, which seems to havebeen a great cause of complaint in the eighth century, that thefreemen were summoned to attend _placita_ at frequent intervals duringthe year, when there was no business of any importance to transact, and when the sole object of the summons was to furnish an excuse forimposing the fine. An attempt to remedy this injustice was made whenthe number of _placita_ which any one _judex_ could hold during theyear was limited by law to three, [64] and the dates for thesedefinitely determined. But the abuse does not seem to have beensatisfactorily corrected till the time when Charlemagne formallysubstituted for the body of the freemen, who in theory were supposedto attend the _placita_ and assist in the judgments, a limited numberof men who, as regularly constituted judges, either assisted the_judices_ or made judgments of their own, as the case might be. Theseofficers were the _scabini_, whose position we are now investigating. 

All of the best authorities agree that no authentic allusion to theoffice in Italy is to be found prior to the establishment of Frankishrule. The word _scavinus_ or _scabinus_ sometimes occurs, but in everycase the document containing it has been proved spurious on othergrounds. For instance, Brunetti[65] publishes a donation of the bishopSpeciosus of Florence, to the monastery of the cathedral, purportingto belong to the year 724, in which a certain "Alfuso scavino" ismentioned; but it has been proved that the monastery was only foundedin the year 760, and though it may, at a later date, have received thedonation, the significancy of the use of the term vanishes. The firstauthenticated 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 toa suit are mentioned as having already appeared before the "Comitem etsuos Escapinios. " Eight years later, in a _Praeceptum_ ofCharlemagne, [67] commission is given to the _comes_ Tentmann "superquevicarios et Scabinos, quos sub se habet, diligenter inquirat. "

Now that we have indicated the origin and noted the first appearanceof the new officer, let us examine his position and his duties. I ammuch more willing to allow to the _scabinus_ the title of "cityofficer, " than to the _dux_ or even the count. We have seen the latteras one of the important connecting links joining the city to thestate, bringing the city into relationship with the constitution ofthe kingdom and making it a part of it; but we have been unwilling tocall the count or _dux_ the _legal_ head of the city, as such, that isto allow him the title of the first city officer. But with the_scabinus_ the case is different. His mode of appointment, and thecharacter of the functions he performed, ally him with the city properand with city people. His duties and his interests were more confinedto the city than those of any of the other judges, and when heaccompanies the count to the general _placita_ of the king, he seemsto go in the capacity of a representative of the city, and more in thecharacter of a city magistrate than any officer we have yetconsidered. His duties were almost entirely of a judicial character, and his powers seem to have been as broad in their extent as those ofthe other judges. That he had the power of imposing capitalpunishment, and that the other officers of the law could not changebut only execute his orders, appears from the following passage:[68]"postquam Scabini eum [latronem] adjudicaverint, non est licentia velVicarii ei vitam concedere. " Muratori[69] maintains that he also hadthe right of holding certain _placita_ of his own, and cites in prooftwo _placita_ of Lucca of the years 847 and 856, where we find: "Dumnos in Dei nomine Ardo, Adelperto et Gherimundo Scabini adsedentes inlucho Civitate Lucana, " etc. ; and "dum resedisset Gisulfus Scabinus deVico Laceses, per jussionem Bernardi Comiti ... Ubi cum ipso aderatAusprand et Audibert Scavinis. " In the first of these there is nomention whatever of the count, and in the second "Gisulfus Scabinus"acts with his associate _scabini_ "per jussionem Comiti. " But even ifwe allow to the _scabini_ the right of holding _placita_, these musthave been of a lower grade than those of the counts or of the _missiregii_; for to the _mallum_ of the latter an appeal was allowed fromthe judgment of the _scabini_, as we see from the law ofCharlemagne, [70] which says that: "Si quis caussam judicatam repeterein mallo praesumserit ... A Scabinis, qui caussam ipsam priusjudicaverint, accipiat. " Generally speaking, however, it seemsprobable that their jurisdiction included all cases arising within thecity limits, which could be dealt with in the regular _placita_ of thecounts, and which were not of sufficient importance to be referred tothe king in person, his representative the Count of the Palace, or hisdelegates 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 ofCharlemagne he was to be accompanied by a certain number of the_scabini_; and these seem to have accompanied him not solely in thecharacter of legal advisers, but also in a certain measure asrepresentatives of the cities in which lay their jurisdiction: theyare by no means what the exaggeration of Sismondi[71] calls "desmagistrats populaires ... Qui representaient la bourgeoisie"; but theycertainly stood for the interests of the people, in a greater degreethan any of the ruling powers we have as yet considered. Their numberis variously stated in the laws of different kings, and their actualnumber seems seldom to have come up to the standard of legalrequirement. Lewis the Pious requires twelve to accompany each countwhen summoned by the emperor: "veniat unusquisque Comes et adducatsecum duodecim Scabinos";[72] but concedes that if so many could notbe found in the city, their number should be filled out from the bestcitizens of the town: "de melioribus hominibus illius civitatissuppleat numerum duodenarium. "[73] According to Charlemagne, [74] noone should come with the count to a king's _placitum_ unless he had acase to present, "qui causam suam quaerit, exceptis scabinis septem, qui ad omnia Placita esse debent. " And again: "Ut nullus ad placitumbanniatur ... Exceptis scabineis septem, qui ad omnia Placita praeessedebent";[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 mostinterest to us, and the one which most clearly shows the differencewhich was designed to exist between it and that of the other judges, was the manner in which the office was obtained. In this procedure wecan trace almost distinctly that the object of the central power whichestablished it was to secure greater justice and greater freedom tothe subjects who came under its jurisdiction. The fact was recognizedby the new government that the power of the local heads was too greatto suit the principle of universal central control, which was thekeynote of Charlemagne's system of administration, and was exercisedin too arbitrary a manner; and that some check was necessary to curbthe spirit and limit the independence of these local lords of the soiland the city who had little consideration for their inferiors, and whomight at any time become a source of danger to their superiors. Such acheck was found, in regard to the central authority, in the _missiregii_, and in reference to the general public, in the _scabini_ orcity judges. 

In the old Lombard constitution we have seen the gastald, chiefly, however, in the matter of judicial decisions, exercise a controllinginfluence on the arbitrary action of the duke; but as the power of thecount varied from that of the duke, so that of the _scabinus_ differsfrom that of the gastald, only perhaps in a greater degree. At thetime when the count assumes the place of his predecessor the duke, the_scabinus_ displaces the gastald, although he cannot be said to haveassumed exactly the same position as the latter, nor to have filled itin precisely the same way. The _scabinus_ did not have, of course, anydirect limiting control over the actions of the count; for any suchpower in the hands of a body of lesser officers would have been alikecontrary to the spirit of feudalism which characterized the age, andimpossible to its forms; but being the principal judicialfunctionaries of the district, into their hands fell most of the caseswhich formerly went to the _placita_ of the count; and while the wishof the great emperor, that even the meanest subject of the realmshould receive impartial justice at their hands, might have failed inits effect, its fulfilment was made more sure by the method prescribedfor the election of the officers whose duty it was to execute it. [76]

In describing the method by which the _scabini_ gained their office, Iam in some doubt as to the proper terms to be employed. I have justmade use of the word "election, " but cannot let it stand without somequalification. It was not an election in the strict sense of the wordas we now understand it, but it was as near an approach to a popularchoice as was possible in the age in which it existed. The citizens ofa municipality did not nominate and elect by their votes a popularmagistrate, as some writers would have us believe; for such aproceeding would have been an anomaly in the eighth century under therule of a Frankish emperor. But the people had a voice, and from thefrequent mention of their intervention it would seem an importantvoice, in the selection of those who were to be their judges, and whowere to assist in representing them in the royal assembly. Theoriginal appointments were made by some higher power, in most casesthe _missi regii_, the direct representatives of the king; but thesewere made not arbitrarily, but always "cum totius populi consensu. "This was the important point; it was so far a popular office that thefree consent of the people was always necessary to make valid theappointment of any incumbent. According to the ideas and customs ofthe eighth century, such a method of procedure would represent afairly popular election; for we know well that in the times of thegreatest freedom, the Teutonic idea of a popular vote never wentbeyond the mere expression of assent or dissent by the assembledfreemen. The initiative was always left to the king or chief whoconducted the meeting, just as much as it was in the ancient assemblyheld on the classic plains of Troy. In a capitulary[77] of Charlemagneof the year 809 it is decreed: "ut Scabini boni et veraces cum Comiteet populo elegantur et constituantur": and more specific directionsare given by Lothar I. In the year 873, in case of a _scabinus_ foundto be an unjust judge. He says:[78] "ut Missi Nostri ubicumque malosscabinos invenerint ejiciant, et totius populi consensu in loco eorumbonos eligant. " From this latter example we see that the _missi_ hadthe 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 alaw of Lothar I. Tells us that "quicumque de Scabinis deprehensusfuerit propter munera, aut propter amicitam injuste judicare" shouldbe sent up to the king to render an account of the manner in which hehad fulfilled the duties of his office. 

Such then were the duties, the privileges and the restrictions of thefirst magistrate to whom we could venture to ascribe any of theattributes of a popular judge: a representative of the people at theassembly of their ruler; a judge of their suits and of their misdoingsat home, and a check on the arbitrary power of their lord and feudalsuperior, --we can readily appreciate that the existence of such anofficer within the city must have exercised some influence in givingto its inhabitants a greater sense of security, and consequently ofimportance, even if we cannot claim that in the earliest stages ofmunicipal development it gave birth to any definite ideas of personalfreedom or of municipal independence. But it can easily be seen thatit formed another and an important factor in that idea whose progresswe wish to trace, of a slowly growing feeling of individuality in thecity as such, the municipal unit as conceived apart from the stilllegally recognized unit, the entire _civitas_. We have seen the countthe representative of this idea as far as its actual connection withthe constitution of the state was concerned, but it was the _scabinus_who was to represent it to the consciousness of the people, and toassist them in rediscovering the lost conception of a municipal unity. 

It would be incomplete to conclude this account of the variousofficers of government, without some mention of the position held bythe bishops at this period. As it has been our duty throughout thispaper to study the municipalities of Italy as only preparing to assumea position of individuality eventually leading to independence, so itis with regard to the bishops. While their social influence, aspointed out in the first part of this paper, was always notable, theirpolitical power, which formed one of the important steps in theprogress of the communes towards a separate existence, has its birthat a time which is beyond the limits of this investigation. Not untilthe overthrow of the Carlovingian dynasty left Italy the prey ofcontending factions, and the crown passing quickly from hand to handmade each applicant anxious to gain the support of the more prominentelectors, did the bishops obtain that legally constituted politicalpower which, by breaking up and in many cases destroying the rule ofthe counts and great nobles in the cities, was the means of bridgingover the wide gulf which lay between the idea of a district under thealmost absolute rule of a great lord, and a civic autonomy governed byits own independent citizens. Even, however, if we are not yet toportray the bishop in a position of high political importance, we maybriefly consider his social power and influence, and, as we have donewith the cities themselves, indicate the steps by which he was enabledultimately to gain such an exalted position. 

The relations of the bishop to the inhabitants of the cities duringthe period we are considering were pretty nearly such as described inthe first part of this paper. He stood forth as protector of the weakand the oppressed; as mediator between an unfortunate prisoner and anunjust judge who was seeking his private interest rather thanfollowing the spirit of impartial justice; or between a downtroddenvassal and the almost unlimited power of his feudal superior. Helessened the severity of harsh judgments, he protested the impositionof unjust fines and penalties. In very many cases he was evenappointed by the king or his representatives as co-judge to assist the_judex_ or the _missus_ in hearing cases where oppression or injusticewas to be feared. But it is important for us to avoid confusing thiskind of jurisdiction with that which he enjoyed in the century afterhe had attained the power and the office of count, and had combinedthe religious functions of head of the diocese with the secular onesof political ruler of the city. Any judicial authority possessed bythe bishop at this earlier period was not in virtue of any politicalposition he himself held, but came to him entirely in what might becalled an extraordinary manner, that is, by delegation from the king, for definite specified occasions. As an example of this extraordinarydelegated jurisdiction, I will refer to a document in the Archivio ofthe Canons of Arezzo[79] of the year 833, relating to the judgment ofa dispute between "Petrum Episcopum Arretinum et Vigilium AbatemMonasterii Sancti Antemi, " situated in the territory of Chiusi, over aprivilege ceded to that monastery by Lewis the Pious in 813. [80] Thebishop of Arezzo gained a favorable decision from a court constitutedof some _judices_, _missi_ of the emperor, and of the bishops ofFlorence, Volterra and Siena, Agiprandus, Petrus and Anastasius. According to the terms of the document with regard to the compositionof this court, the bishops sitting in it were "directi a Hlotariomagno Imperatore"; and their powers are several times referred to asbeing "juxta jussionem et Indiculum Domni Imperatoris. " Here, as inall other similar cases, we see plainly that there is no indication ofany purely personal jurisdiction. 

That the influence of the bishop in affairs of state at this periodwas only of an individual, extra-official character can be seen alsofrom the fact that the king considered the bishops themselves to beunder his judicial jurisdiction in all secular matters, just as thelesser clergy came under the jurisdiction of the _judices_:[81] andfurther, that after the election to a church, the decision of the_judex_ must confirm the choice of the community in order to render itvalid. [82] All disputes also between bishops and their clergy, betweenmembers of the body of clergy, and between these and members of thelaity, were settled by the royal authority;[83] and what is mostsignificant, there was a universal and freely used right of appeal forthe clergy or laity from the decision of a bishop to the person of theking, who seems to have exhibited no hesitation in modifying orreversing sentences, even in matters relating to purely clericaldiscipline. [84]

Even in the time of the Franks, when the consideration shown to thechurch and its representatives was much greater than under any of theLombard kings, we find Charlemagne, [85] on suspicion of infidelity tohis government, having sent to him and retaining as prisoners thebishops "Civitatis Pisanae seu Lencanae" and Pottoni, Abbot of themonastery 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, " "WolfoldusCremonensis" and "Theodolphus Amelianensis. "[87] None of theserestrictions and limitations, however, although they arose chieflyfrom the strong opposition always existing between the local temporalrulers of the people and their spiritual rulers, could hinder thebishops from occupying that important position of mediators and ofprotectors of the people which we have ascribed to them. 

Turning now to a consideration of the earliest steps which may be saidto have cleared the way for the political power of the bishops, we aremet by a subject which, though of great interest in itself, is notsufficiently a part of this investigation for us to do more thanindicate the lines of its progress. This subject is the development ofthe practice of giving certain immunities and privileges to churchesand monasteries, adopted by the Frankish kings, faithful sons of thechurch, and then followed by all their royal and imperial successors. In considering the important influence exercised by these immunitieson the development of the espiscopal power and the effects of this onthe growth of the communes, there are two essential facts which wemust always keep prominently in mind. In the first place we mustremember that the granting of immunities was a question of privilegeto particular individuals or ecclesiastical institutions, and not auniversal grant which affected in an equal degree all the dioceses ofthe realm. This led to the marked differences in rank and importancewhich existed between the various bishoprics, and in the tenthcentury, when the temporal power became in many cases an adjunct tothe spiritual, caused some bishops to become powerful temporalprinces, while others, unable to gain this pre-eminence, remainedsimply spiritual heads of their respective dioceses. So in the contestbetween the counts and the bishops we find the latter only victoriousin certain cases, and consequently having only certain of the citiesunder their jurisdiction; a fact which is illustrated as late as thePeace of Constance, where in the ninth article the cities are stilldivided into episcopal and non-episcopal cities. [88] In the secondplace we must keep clearly before us an important fact, the truth ofwhich any chronological account of the development of the principle ofimmunity would easily demonstrate, namely, that with the advance oftime and with the growth of that principle, the changes which tookplace in the different sorts of immunities were not simply those ofdegree, but essentially and principally those of _kind_. 

A descendant of Charlemagne may have granted to some monastery orbishopric a greater alleviation of some of the fiscal burdens borne byit under his immediate predecessor, but a successor of Berenger whenhe granted a _privilegium_ did not simply perform the negative benefitof alleviating burdens; he endowed the head of the bishopric--probablyin return for some service he had received at his hands or expected toreceive--with the positive benefit of the political headship andpossession of some city or district of a former count. I mean by thisthat the earlier immunities--and in these are included all givenduring the period we are discussing--were all of them what are termedsimple or ordinary immunities; that is, those which deal withexemption--whether from burdens for which the receivers wouldotherwise be liable, or from jurisdiction to which they wouldotherwise have been subjected--of what may properly be called theprivate possessions of the churches concerned. They had nothing to dowith the privileges of a later time, by which a power to exact burdenswas 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 andnot of degree is so plainly apparent that it is unnecessary to dwelllonger upon it, and it only remains for us to consider briefly thechronology of some of the changes that took place. If we adherestrictly to the proper signification of the terms used, thedevelopment can be somewhat succinctly described by the simpleenumeration of the three characteristic features of its progress, viz. _protection, exemption, privilege_ that is jurisdiction or temporalpower; and the three periods which are covered respectively by theprominence of these ideas can be roughly stated to be: for the first, the reigns of Charlemagne and his successors down to the time ofCharles the Bald--including any indication of this idea which we mayfind during the reigns of the last rulers of the first Lombardkingdom; for the second, the reigns of Charles the Bald, Karloman, andCharles the Fat; and for the third, the full development of theepiscopal power in the tenth century, down to the period of its finaldecline, and the rise of actual municipal government within thecommunes. 

It is doubtful whether immunities of any importance were granted evenby the latest kings of the Lombards, before the invasion of theFranks. Under the first Lombard monarchy the church held a verysubordinate position with regard to the state, and if privileges weregranted to any of its members, they had attached to them no greatermeaning than the simple extension to them of the _mundibrium_ of theking, such as was often allowed to private individuals; that is, theywere simply grants of royal protection, and were not similar to thelater grants which included both protection and privilege. [89]

With the advent of Frankish rule under Charlemagne, markedconsideration immediately appears for the church and itsrepresentatives. Not alone is ample protection granted to many of thechurches of the kingdom, but to it is added the important function ofexemption. The greatest evil endured in those days by theecclesiastical authorities was exactions levied on their property andoppression exercised on their dependents by the dukes and counts underwhose jurisdiction lay the temporal possessions of the churches andmonasteries. Consequently the aim of every bishop and of every abbotwas to obtain for the possessions of his diocese or his convent anexemption more or less complete from the civil administration of theneighboring secular ruler. For a long time there was no thought in themind of the bishop of gaining for himself the functions of temporaljurisdiction, but simply that the power of the count should berestrained with regard to church property, that is, that he should notbe able to exercise his judicial control over lands belonging to thechurch, except by the express permission, "per licentia data, " andwith the concurrence of the bishop himself. This and nothing more iswhat is meant by all of the charters of exemption granted by theCarlovingian rulers, down to the time of Charles the Bald, when, as weshall presently see, a change was introduced. 

It would be useless for me to cite examples of such charters, fortheir number is countless, and reference may be made to any of thegreat collections of mediaeval documents for confirmation of what hasjust been said; for during the reigns of the earlier Carlovingians, the strong reverence for the church and respect for its officers whichcharacterized the Frankish nation from the beginning led to theextension of these privileges to much the greater number of thechurches in the realm. Not all churches enjoyed such grants, and notall those accorded were of the same liberal character, but the numbergiven and the amount of liberty to the church thereby bestowed wassufficient to give to the clergy that degree of importance whichultimately culminated in making them the great lords that we find themin 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 comeunder my notice in Carlovingian times, namely a diploma of the year782, issued to Geminiano II. , bishop of Modena, and preserved in thearchives of that city. Here we find that: "Nullus judex publicus adcausas audiendum, vel freda exigendum, seu mansiones aut paratasfaciendum, nec fidejussiones tollendum neque hominibus ipsiusepiscopatus distringendum, " etc. This is sufficient to show thecharacter of exemption from secular jurisdiction. [90]

The next forward step in the advance of the bishops to temporal powerwas made probably about the time of Charles the Bald; though under histwo immediate predecessors, Lothaire[91] and Lewis II. , [92] we alreadysee indications of an extension of the quality of exemption to includefreedom from the payment of all public dues and the bearing of allpublic burdens. [93] It was precisely the introduction of this elementof exemption from public burdens which marked the change in the natureof the immunities granted from the time of Charles the Bald, down tothe period when the element of jurisdiction and real temporal powerwas introduced under Guido and Berenger. Up to this time, the groundson which similar charters had been sought had been protection from theoppression of the counts, and had resulted, as we have seen, in thegranting of simple charters of protection which were of no very greatsignificance. But now it is exemption from public burdens, etc. , thatis made prominent, in addition to a complete severance from alljurisdiction and control of the secular power of the _civitas_ inwhich the bishop's see and domains are situated. That this concessionalso was sought by the bishop on the plea of protection for hisdependents from oppression and exaction, does not diminish itsimportance; for it is easy to see that the line which separatesrecognized right of protection from recognized right of jurisdictionis one easily effaced, and defense from the tyranny of a foreign powercan with little difficulty be transformed into domination by theprofessed defender. 

That this was the order of development consequent on these changes isproved by the temporal dominion gained by the bishops in the nextcentury; and the steps of its growth marked by numerous immunitiesgranted by Charles the Bald, Karloman[94] his successor, and Charlesthe Fat, the last of the Carlovingians in Italy. As a good example ofthe complete development of this advance gained by the bishops, I willmention 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 therights of that see, and takes him under his protection, "subimmunitatis suae defensione": he then goes on to explain what thisterm meant, giving a full account of the extent to which a bishop'sproperty 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 mostimportant of all, is the progress from exemption to privilege, tojurisdiction; and occurs after the return of the kingship of Italy tothe hands of native kings. [96] It means the full development of thebishop into the temporal ruler, and as such belongs properly to thehistory of the tenth century, and consequently is beyond the limits ofthe present paper. 

We have now considered individually and separately, in the course oftheir development, the different elements which, when combined andmodified by the various changes described, contributed to form thesolid foundation upon which the fabric of the future independent lifeof the cities was to be built. We have been dealing exclusively withinstitutions, and the manner in which their growth has beenaccomplished. For it is in the institutional life of a people, and inthe change and development it undergoes, that are to be found thoseelements which form the basis for all future changes, whether simplyin the form of its government or in the structure of its socialsystem. If once a clear picture is gained of the structural partswhich form the institutional framework of any particular development, and a truthful presentation of these forming principles is proved andestablished, a detailed account of the material expression of them isa matter of secondary importance. 

I have not, in this paper, attempted to describe the actual conditionof any particular municipality, or even presented a picture whichcould represent the material existence of the cities as a whole. Sucha picture would only be a necessary part of a study of institutionswhen the city itself was the unit to be investigated, and not of onewhose chief object is to prove that the city as such had noconstitutional existence, but simply formed a part of anotherinstitutional unit. When we reach a period in which the city standsout as an object of study in itself, and when we do not have to traceits history only by learning that of other institutions which includedand overshadowed it, then the practical life of the people within itswalls becomes of the greatest importance, even to the smallest detailof civic law or city custom; and then, and not till then, begins whatcould properly be called a study of municipal institutions. 

During the three centuries that we have been investigating, the studyof the Italian municipalities has been, as we have seen, but the studyof other institutions of which the municipality formed only a part. Noattempt has been made to do more than prove the origin and trace theearliest development of those principles, which in their maturity wereto gain for the municipal unit that position where the study of itsown structure would become an object of interest, entirely apart anddistinct from any of its surroundings. It has been shown that the citydid not inherit any such position from its immediate predecessor theRoman _municipium_, which we have learnt to consider as overthrown, from a constitutional standpoint as annihilated; but that the newprinciple introduced into state life by the northern conquerors ofItaly, the principle of administration by county rather than by urbandivisions, relegated the city to an inferior place as part of a ruralholding, instead of leaving it the centre of a circle of ruraldependencies. Having demonstrated the absence of all constitutionalrecognition of the municipal unit as such, I have attempted to showhow a condition of such legal insignificance became generally acondition of actual importance; how from a position of such negativeinterest, the advance of the city was commenced along a road which wasultimately to restore it its old pre-eminence, even adding to this intime the almost forgotten attribute of sovereignty. The motives forthis advance we have seen to be no higher ones than convenience andexpediency, which made the _urbs_ of every _civitas_ the naturalcentre of its local administration, thereby in fact, if in no way bylaw, restoring to it some of the elements of individuality, if not ofpre-eminence, which it had lost. The means employed we have seen to bethe functions of the various officers of state: the _dux_, the countand the gastald, who connected the city with the state, and the_scabinus_ and the bishop, who represented this connection to theconsciousness of the people. We have noted the marked effects producedon the development of a more popular feeling, by the changesintroduced by the great emperor of the Franks; which, by diminishingthe power of the local lords, accomplished a double benefit; on theone hand by saving the people from the arbitrary rule of a feudalsuperior; on the other, by causing the city to become more of adependence and more of a support to the state as a whole. And finallywe have left the city prepared, on the return of another dynasty ofnative kings, to accept, at least in a large number of cases, thedomination of another kind of lord, a spiritual one; who was to serveas 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 ofthe future to wrest the power and the sovereignty which was to make ita 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. 2vols. Fol. 

_Bethmann-Hollweg_: Schrift über den Ursprung der lombardischenStädtefreiheit. 

_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. (GeneralCollection. )--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 NorthernItaly. 

N. B. --The above list is restricted to those works to which directreference 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 wasto take one-third of the land itself from the conquered people; theLombards 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 ofthe 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 probablycame from words signifying "a long stretch of land. " Their firstappearance in history is during the first century of the Christianera, in the region of Magdeburg. All trace of them is then lost tillthey reappear in the fifth century on the banks of the Oder; they thengo south to the river Theiss. They are in a constant state of war withthe Gepidae, a tribe nearly as fierce as themselves, which strife issupposed to have been fomented by the eastern emperors. In the year567 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 conqueredpeople merged in the race of their conquerors. In the next year, stillvictorious, they overrun Northern Italy. 

[5:] Some of these cities were enabled to hold out for a considerableperiod. 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. Forinstance, the Archbishop of Milan fled to Genoa, and the Archbishop ofAquileja to Venice. 

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

[8:] Justinian gave him the right to exercise, in reference to eachcity, the functions of the governor of the province, during thelatter's absence; and granted him jurisdiction in all cases notinvolving a larger sum than 300 _aurei_. He had a certain amount ofauthority in criminal matters, and two apparitors were attached to hisperson. The _defensores_ had two guarantees for their power and theirindependence. 1. They had the right of passing over the variousdegrees in the public administration, and of carrying their complaintsat once before the praetorian prefect; this freed them from thejurisdiction of the provincial authorities. 2. They were elected bythe 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 anniin Italia, e di già non ritenevano di forastieri altro che ilnome. "--_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 ofsociety at this period, which would at once be perfectly accurate, andyet 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 perhapsmore frequently used by the Frankish kings than by the Lombard. See a_privilegium_ granted to the nuns of the Posterla di Pavia by LotharI. In the year 839, in which it appears that any one infringing itsprivileges 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. Alsoseveral diplomas of Charles the Fat, and others make use of the sameterm. The word _camera_ for _fiscus_ as the imperial treasury, wasprobably not used before the time of Lewis II. ; the first authenticuse of it in that sense being probably a diploma of that monarch ofthe year 894, where he says that one hundred pounds of gold are to bepaid "medietatem Imperiali Camere et medietatem suprataxataeAngilberge. " Vid. _Muratori_: loc. Cit. P. 234. 

[36:] From _Otto of Freising_, De Gest. Freder. , Lib I. , cap. 31, weknow that the same distribution took place in Hungary, which wasdivided into seventy _comitates_; "et de omni justitia ad FiscumRegium 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 ofthe various taxes, dues and privileges, mention of which is found inthe old documents. The feudal character of these will be apparent tothe reader. Following the rough division indicated in the text, wehave:

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 privilegiumconfirms the laws of Liutprand, and shows how much theinhabitants of Como had to pay in various places in moving saltdown 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 certainmerchandise. [Greek: zeta]. Passagio, probably same as preceding, butpossibly 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 thatwere levied, but are a fair representation of them. After the year1000 their feudal character is even more strongly marked. 

[42:] This statement, while true of all integral parts of the Lombardkingdom, must, however, be modified in regard to the great duchies ofSpoleto and Beneventum, which were under a different system ofinternal government from the kingdom of Lombardy proper--were, infact, small tributary kingdoms under great dukes enjoying practicallyroyal powers. The Duchy of Beneventum seems to have been divided into_gastaldata_, divisions of territory similar to the _civitates_ ofLombardy, but presided over by a gastald instead of by a _dux_ or_comes_. In the charter of division made between the dukes ofBeneventum 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, _PaulusDiaconus_--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 cumsuis territoriis civitates; ipsumque Alzeconem mutato dignitatisnomine, 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 unoJudice, 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 PlacitoCentenarii neque ad mortem, neque ad libertatem suam amittendam, autres reddendas vel mancipia judicetur. Sed ea omnium in praesentiaComitum, 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. , page470, note. 

[59:] It is difficult to find an English word which intelligentlyrenders the various names for these freemen in their judicialcapacity, used by the different nations, such as _arimanni, rachinburgi, boni homines_, etc. Most English writers make use of theGerman word _schöppen_. I have taken the rendering "judicators" fromEdward Cathcart, the translator of the first volume of Savigny'sGeschichte 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 partof the ninth century, which says: "De Vicariis et Centenariis quimagis propter cupiditatem quam propter justitiam faciendam saepissimeplacita tenent, et exinde populum minus affligunt, ita teneatur ... Utvidelicet in anno tria solummodo generalia placita observent et nulloseos amplius placita observare compellat. " From Worms Capitulary of_Lewis the Debonnair_, a. 829, c. 5. Also compare: Capit. V. , anni819, Art. 14. Capit. , Lib. IV. , c. 57. (_Baluzii_, 616 infr. , 788supr. ) _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 inveniripossunt. " _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_: ItaliaSacra, Tom. III. , for this privilege. 

[81:] _Brunetti_: Cod. Diplom. Toscan. No. 8, a. 715. A priest namedGunthram says: "Nec cumquam ab episcopum Senensem coridicionemhabuimus, 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, adeacon, says: "Quoniam prelectus a plebe, cum epistola Warnefried [theGastald of Siena] rogaturus ambulavi ad Luperceanum Aretine EcclesieEpiscopum et per eum consecratus sum. "

[83:] For example see a judgment of the year 771, in the Archivio ofLucca. 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 intwo documents in the Archivio Archivescovile of Lucca, of about theyear 813. Vid. _Muratori_: Ant. Ital. Diss. LXX. , Tom. III. , ParteII. , 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. , ParsII. , p. 192) publishes a diploma to the monastery of Novantulanum, near Modena, purporting to be by Aistulf and of the year 753; and (inAnt. Ital. Diss. LXXI. , Vol. III. , P. II. , p. 256) another byDesiderius to the monastery of Santa Giulia di Brescia, which seems togrant exemption and protection if not privilege. But in the first theformula employed is so exactly similar to that of the later Frankishdocuments issued for the same purpose, as immediately to excitesuspicion; and in the second, Muratori himself finds somethingradically wrong with the chronology. 

[90:] An even better example can be found among Charlemagne'sdiplomas, 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 in843, 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 alwaysexcepted. See a diploma of Louis of the year 854 to the monastery ofSt. 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 ofthe 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 thebishop of Modena by Guido in the year 892, and published by _Ughelli_:Italia Sacra, Tom. II. , p. 98.