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+*** START OF THE PROJECT GUTENBERG EBOOK 12162 ***
+
+JOHNS HOPKINS UNIVERSITY STUDIES
+
+IN
+
+HISTORICAL AND POLITICAL SCIENCE
+
+
+HERBERT B. ADAMS, Editor
+
+
+History is past Politics and Politics present History.--_Freeman_
+
+
+
+NINTH SERIES
+
+
+
+
+V-VI
+
+The Communes of Lombardy from the VI. to the X. Century
+
+AN INVESTIGATION OF THE CAUSES WHICH LED TO THE DEVELOPMENT OF
+MUNICIPAL UNITY AMONG THE LOMBARD COMMUNES
+
+
+BY WILLIAM KLAPP WILLIAMS, PH.D.
+
+NEWBERRY LIBRARY, CHICAGO
+
+May, June, 1891
+
+     "Est error spretus, quo Langobarda juventus
+     Errabat, verum loquitur nunc pagina sensum."
+
+
+RHOTARI: _Legum Prologus_.
+
+
+THE COMMUNES OF LOMBARDY FROM THE VI. TO THE X. CENTURY.
+
+
+
+PART I.
+
+
+THE LOMBARD CONQUEST AND ITS RESULTS.
+
+Before tracing the beginnings of renewed municipal life in Northern
+Italy, we must consider the conditions of land and people, which first
+rendered possible and then fostered the spirit of local independence
+of which such beginnings were the natural expression. To do this we
+must commence our researches with the first domination of the Lombards
+in the country.
+
+In detail the story of the conquest of Northern Italy by the Lombards
+under Alboin, in 568, hardly differs materially from that of the
+inroads of other barbarian tribes of the north on the fertile plains
+of Italy. The causes were the same. Where the distinction is to be
+found from other such invasions, is in the results of the Lombard
+occupation, and in the different methods which the Lombards adopted so
+as to render their power and their possessions permanent. Let us look
+at the character of this invading host, which sweeps like a tide, at
+once destroying and revivifying, over the exhausted though still
+fertile plains of the Po and the Adige. Are we to call it a moving
+people or an advancing army? Are we to call its leaders (_duces_, from
+_ducere_ to lead), heads of clans and families, or captains and
+generals? Finally, is the land to be invaded, or is the land to be
+settled? To all these questions the only answer is to be found in the
+conception of the absolute union of both the kinds of functions
+described. A people is moving from a home whose borders have proved
+too narrow for its increasing numbers; an army is conquering a new
+home, where plenty will take the place of want, and luxury of
+privation. It is not an army marching at the command of a strongly
+centralized power to conquer a rich neighbor, and force a defeated
+enemy to pay it service or tribute. It is a body which, when it has
+conquered as an army, will occupy as a people; when it is established
+as a people, will still remain an army. The sword was not turned into
+the ploughshare; but the power to wield the sword had given the right
+to till the land, and soon the power to hold the land was to give the
+right to wear the sword. It was the conquest of a highly civilized
+agricultural people--whose very civilization had reduced them to a
+stage of moral weakness which rendered them totally unfit to defend
+themselves--by a semi-barbarous people, agricultural also, but rude,
+uncivilized, independent, owning no rulers but their family or
+military chiefs.
+
+The conquerors took possession of the country simply as they would
+take possession of a larger farm than they had before owned. Their
+riches were only such as served for the support of men--herds, land,
+wine and corn. They needed cultivators for their large farm, so
+instead of destroying every one with fire and sword, they spared those
+of the weak inhabitants of the land who had survived the first
+onslaught, in order that they might make use of farmers to cultivate
+their new possessions. In most cases they did not make slaves of them,
+but tributaries; and after the land had been portioned evenly among
+the soldiers of the invading host, the original holders of the land
+tilled it themselves, under a system somewhat kindred to the metayer
+system as to-day existent in Tuscany and elsewhere, paying, according
+to the usual custom adopted by the northern conquerors of Italy,
+one-third of the produce[1] to their new masters. The whole
+organization of society was on a purely military basis; the soldiers
+of the conquering army, although they became landed proprietors, none
+the less retained their character and name of soldiers. Hence when
+these crude forms of social life began to crystallize into the
+carefully marked ranks of the feudal system, the "_milites_"[2] formed
+the order of gentlemen, the smaller feudatories, who gave land in fief
+to their vassals--generally the old inhabitants--while holding their
+own nominally from the "_duces_," or dukes, the representatives of
+their former leaders in war, who held their tenure direct from the
+king or chief.
+
+As the object of this paper is particularly to trace the origin and
+early sources of municipal life in Northern Italy, let us turn and see
+what were the effects on the already existing towns, of the inroads of
+these hordes of northern barbarians. At the outset I must state
+emphatically that all our sources of information as to the
+institutional history of this obscure period are exceedingly vague,
+meagre and unsatisfactory. The progress of events we can follow with
+more or less accuracy from the mazy writings of the early chroniclers;
+we can get a fair idea of the judicial and the legislative acts of the
+ruling powers by studying and comparing the different codes of laws
+that have come down to us; but in a study of the internal municipal
+life of these early ages, the student meets again and again with
+increasing discouragement, and soon finds himself almost hopelessly
+lost in a tangle of doubts and inferences.
+
+In the almost total want of direct evidence, from casual mention
+gleaned from the writings of the chroniclers, and from occasional
+references in the law codes to municipal offices and regulations,
+enough indirect evidence must be sought, to enable us, by the aid of
+our powers of reasoning, if not of our imagination, to build up some
+history, defective though it be, of municipal life, down to the time
+when the internal growth and importance of the cities rendered them
+sufficiently prominent political factors to have their deeds and their
+progress chronicled. Besides, if we consider the modes by which the
+communes slowly rose to independence, it will easily be seen that to
+have every step of this slow and almost secret advance chronicled and
+given to the world, would have been entirely contrary to the policy of
+the cities. These hoped to gain by the neglect of their rulers, and
+while clinging pertinaciously to every privilege ever legally granted,
+to claim new ones constantly, putting forth as their sole legal title
+that slippery claim of precedent and time-honored custom. In that age,
+books of reference to prove such claims would have been found alike
+inconvenient and unnecessary. All the city folks wished was to be
+forgotten and ignored by their superiors, as any notice vouchsafed
+them was sure to come only in the restraint of some assumed privilege
+or the curtailing of some coveted right.
+
+Hence the principal cause of the poverty of record through all this
+period of slow if steady growth; and the disappointed investigator
+must in some measure console himself with such a reason. It may be
+asked, what of the various local histories of different towns, whose
+authors seldom fail to give highflown accounts of their native cities,
+even in the remotest and darkest ages of their history? To this
+question there is a double answer: in the first place the uttermost
+caution must be enjoined in using such material; not only in
+separating fact from baseless tradition of a much later period, but in
+making large allowance for the heavy strain which a strong feeling of
+local patriotism, or civism, puts upon the conscience of the author.
+In the second place it must be remembered that most of such histories,
+or at least of the monkish or other records from which they derive
+their source and most of their material, were written to the glory or
+under the auspices of some dominant noble family or ecclesiastical
+institution, to whose laudation in ages past and present the humble
+author devotes all the resources of his mind, and I am afraid far too
+often of his imagination.
+
+Let us now cast a glance at the exhausted civilization of the towns of
+Northern Italy, where the formal shell of Roman organization still
+remained, after the vigor and life which had produced it had long been
+destroyed. To describe the condition of the Roman _municipia_ at the
+time of the Teutonic invasions is but to tell a part of the story of
+the fall of the Roman Empire. The municipal system, which from the
+names and duties of its officers would seem to represent a surprising
+amount of local independence in matters of administration, even a
+collection of small almost free republics, had lost all its strength
+and all its vital power by the grinding exactions of a centralized
+despotism, which was compelled to support its declining power by
+strengthening the very forces which were working its destruction, at
+the expense of destroying those from which it should have gained its
+strength. The stability of every state rests ultimately on the wealth
+and character of its citizens, and any government which exhausts the
+one and degrades the other in an effort to maintain its own unlimited
+power has its days numbered. Under the despotic rule of the later
+emperors the municipalities had lost all their power, though in theory
+their rights were unassailed. The _curia_ could elect its magistrates
+as of old, and these magistrates could legislate for the _municipium_,
+but by a single word the imperial delegate could annul the choice of
+the one and the acts of the other.
+
+The economic condition of the people amounted to little short of
+bankruptcy; the possession of wealth, in landed property especially,
+having become but a burden to be avoided, and a source of exaction
+rather than of satisfaction to the owner. The inequalities of burdens
+and of rank were great. The citizens were divided into three classes:
+(1) the privileged classes, (2) the Curials, (3) the common people.
+The first, freely speaking, were those who had in a manner succeeded
+in detaching themselves from the interests of the _municipium_ to
+which they belonged; such were the members of the Senate, including
+all with the indefinite title of _clarissimi_, the soldiers, the
+clergy, the public magistrates as distinguished from the municipal
+officers. The second consisted of all citizens of a town, whether
+natives--_municipes_--or settlers--_incolae_--who possessed landed
+property of more than twenty-five _jugera_, and did not belong to any
+privileged class: both these classes were hereditary. The third, of
+all free citizens whose poverty debarred them from belonging to either
+of the preceding divisions. On the second of these classes, the
+Curials, fell all the grinding burdens of the state, the executing of
+municipal duties, and the exactions of the central government.
+
+It is not necessary for me to trace here the development of that
+financial policy which resulted in the ruin, I may say the
+annihilation of this order. Suffice it to say that it formed the
+capital fund of the government which exhausted it, and when the source
+of supply was destroyed, production ceased, and with it, of course,
+all means of governmental support. Where the extinction of this
+"middle class" touches the point of our inquiry is in affording an
+explanation of a circumstance in the history of the Lombard
+subjugation of the Italian towns, which without consideration of this
+fact would appear almost incomprehensible. I refer to the utter
+passivity of the inhabitants, not only in the matter of resistance to
+attack, which the greater strength and courage of the invaders perhaps
+rendered useless, but in what is more surprising, the fact that after
+the easy conquest was completed, we hear nothing of the manner in
+which the people adapted themselves to the totally new condition of
+life and of government to which they were subjected. Even if we can
+understand hearing nothing of what the people did, at least we should
+expect to hear what was done with it, what it became. The story of its
+resistance might be short and soon forgotten, but the story of its
+sufferings, of its complaints, of struggle against the entire change
+in the order and character of its life, should be a long one.
+
+But of this no record, hardly mention even appears. When the central
+government falls and the last of its legions are destroyed or have
+departed, there seems to be no thought of any other element in
+society. If the evidence of the law codes did not tell us that a Roman
+population existed, history would record little to indicate its
+presence. Not only is even the slightest trace of nationality effaced,
+but the merging of the old conditions of life into the new seems of
+too little consequence to merit even an allusion. This state of
+affairs, as said above, is caused by the annihilation, by the despotic
+power of the central government, of that middle class which in times
+of prosperity formed the sinews of the state. Of the other classes,
+the privileged class, with the exception of the clergy, fell of course
+with the government which supported it, and the common people
+possessed no individuality, no power, and hardly any rights. Such,
+then, was the condition of the towns at the time of the Lombard
+invasion, a condition of such abasement and such degradation as
+literally to have no history; a condition which indeed can truthfully
+be said to merit none.
+
+History tells the story of every great nation on the face of the earth
+in three short words, growth, supremacy, decline. Vary the theme as
+you may in the countless histories of countless peoples; subdivide the
+course of its progress as you will, allowing for different local
+causes and different local phenomena, the true philosophy of history
+teaches that no real departure from this natural development is
+possible. But what if by the violent intervention of some new and
+entirely foreign force, another development and another life is given
+to the inanimate ashes of the old? What if some nation, fresh from the
+woods and fields of the childhood of its growth, come with
+overwhelming yet preserving strength and infuse new blood into the
+withered veins of its predecessor? This is the problem we now have
+before us. How many writers of Italian history have entitled this
+chapter in its development "A new Italian Nation formed"! It is not
+the old glories of Rome, which had been Italy, returning; it is a new
+Italian nation formed. Each word tells a story of its own. It is not
+the old galvanized to a second life; it is the new superimposed,
+violently if you will, upon it. We do not hear of Athens or of Rome,
+of an Alexander or of a Caesar, of a city or of a man. It is an
+"Italian nation." It is the individualism of the independent spirit of
+the North, which "forms" a nation from the exhausted remains of the
+development of centralization of the South. The new idea of distinct
+nationality among races of kindred stock was already at work, even
+though it did not reach a formal expression till the Treaty of Verdun,
+more than two hundred and fifty years later.
+
+I do not mean to imply that we must in any measure ignore the passive
+force and influence of the old forms on the new. The old veins receive
+the new blood; the new torrent, overrunning everything at first with
+the strength of its new life, will find again, even if it deepen, the
+channel of the old river: a vanquished civilization will always subdue
+and at the same time raise its barbarous conquerors, if they come of a
+stock capable of appreciating civilizing influences. In the present
+case this means that the men of the North brought the new ideas that
+were to form modern history, and let their growth be directed and
+assisted, while they were yet too young to stand alone, by some of the
+framework which had been built up by the long experience of their
+Southern neighbors.
+
+To focus this thought on the immediate subject of our present study,
+this I think is the only and true solution of the tedious question, so
+much discussed by the two opposing schools of thought: whether the
+government of the Italian communes was purely Roman in its forms and
+in its conception, or purely Teutonic. The supporters of neither
+theory can be said to be in the right. You cannot say that the average
+city government was entirely Roman or entirely Teutonic, either in the
+laws which guided it, or in the channels by which these laws were
+executed and expressed. I think much time and much learning have been
+spent on a discussion both fruitless and unnecessary. We cannot err if
+we subject the question to a consideration at once critical and
+impartial.
+
+The widely differing opinions eagerly supported by different writers
+on this point, form a very good example of the deceiving influence of
+national feeling on the judgment in matters of historical criticism.
+For, on the one hand, we find many German writers ignoring entirely
+the old framework of Roman organization, and recognizing only the new
+Teutonic life which gave back to it the strength it had lost; on the
+other, a host of lesser Italian writers who magnify certain old names
+and forms, and mistake them for the substance, making all the new life
+of Italy but the return of a past, which belonged to a greatness that
+was dead. Many there are of this school in Italy, where you will often
+find to-day a commune of three hundred inhabitants, with its one or
+two constables wearing the imperial badge, "_Senatus Populusque
+Albanensis_" or "_Verulensis_," as the case may be. Truly a suggestive
+anachronism! It is true that in remote ages especially, when the
+records of history are few and uncertain--and the period we are
+considering in this paper can almost be called the prehistoric age of
+municipal institutions in Northern Italy--much can be learned and much
+truth inferred from the evidence of a name. But this is a species of
+evidence we can never be too cautious in using, as the temptation is
+always to infer too much rather than too little.
+
+In the following pages I will try to sift the evidence obtainable,
+with the impartiality of one trammeled by the support of no particular
+theory; always bearing in mind, however, one fact, all-important in a
+study where so much depends on nomenclature, namely, to give that
+shade of meaning and that amount of weight to any term which it
+possessed in the age in which it was used, carefully distinguishing
+this from its use in any earlier or later age. The importance of this
+caution will be soon seen when we come to discuss the origin of
+corporate life in the communes, where many have been misled by
+attaching to the words _respublica_ and _civitas_, for example, so
+continually recurring in the old laws and charters, a meaning which
+was entirely foreign to the terms at the period of their use. With
+this warning, we will turn to a consideration of the first effects of
+the inroad of the northern barbarians on the cities, whose exhausted
+and defenseless state has already been pointed out.
+
+One of the chief characteristics of the Teutonic tribes which overran
+Italy during the fifth and sixth centuries, was an innate hatred of
+cities, of enclosing walls and crowded habitations. Children of the
+field and the forest, they had their village communities and their
+hundreds, their common land and their allotted land, but these were
+small restrictions on their free life, and left an extended
+"air-space" for each individual and his immediate household. Homestead
+was not too near homestead, each man being separated from his neighbor
+by the extent of half the land belonging to each. The centralization
+of population in city life was a thing undreamed of, and an idea
+abhorred, alike for its novelty and for the violence it did to the as
+yet untrained instincts of the people. The strong, independent
+individualism of the Teutonic freeman rebelled against anything which
+would in any way limit his freedom of action: "ne pati quidem inter se
+junctas sedes," says Tacitus.[3] An agriculturist in his rude way, he
+lived on the land which supported him and his family, and feeling no
+further need, his untrained intelligence could form no conception of
+the necessities and the advantages of the social union and
+interdependence of a more civilized state of society; nor could he
+comprehend the mutual relations of the individual to the immediate
+community in which he lived.
+
+He could understand his own relation to and dependence on the state as
+a whole; alone he could not repel the attacks of neighboring tribes,
+alone he could not go forth to conquer new lands or increase the
+number of his herds. But why he should associate with others and so
+limit the freedom which was his birthright, for other purposes than
+those of attack and defense, of electing a leader for war, or getting
+his allotment of land in peace, was altogether beyond the horizon of
+his comprehension. He was sufficient unto himself for all the purposes
+of his daily life; to the product of his own plough and hunting-spear
+he looked for the maintenance of himself and his family, and the loose
+organization which we may call the state existed simply so as to
+enable him to live in comparative peace, or gain advantage in
+war--perhaps the first example of the new power in state-craft which
+was to revolutionize the political principles of the world; the
+individual lived no longer simply to support the state, but the state
+existed solely to protect and aid the individual.
+
+If all this be true of the Teutonic nations in general, in the earlier
+stages of their development, particularly true is it of the
+Lombards,[4] a wild tribe of the Suevic stock, whose few appearances
+in history, previous to their invasion of Italy, are connected only
+with the fiercest strife and the rudest forms of barbarism. History
+seems to have proved that tradition has maligned the Vandal; the Goth
+can boast a ruler raised at the centre of Eastern civilization and
+refinement; but the Lombard of the invasion can never appear as other
+than the rude barbarian rushing from his wild northern home, and
+forcing on a defenseless people the laws and the customs suited to his
+own rugged nature and the unformed state of society in which he lived.
+
+Such being the case, there is little cause for wonder that the
+invading Lombard directed his fury with particular violence against
+the corporate towns, whose strength was not sufficient to resist the
+attacks of his invading host. Like all other Teutonic tribes the
+Lombards were entirely unskilled in the art of attacking fortified
+towns; hence the only mode of siege with which they were acquainted
+was that of starving out the inhabitants, by cutting off all source of
+supply by ravaging and destroying the surrounding country. This fact,
+unimportant as it may seem at the first glance, materially affected
+the whole course of the later history of some of the Italian cities.
+By this means we are enabled, even at this early epoch, to divide them
+into two classes. First, those cities which, after a more or less
+short resistance, yielded to the rude tactics of the barbarians and
+were made subject by them, for example Milan and Pavia.[5] Second,
+those cities like Venice and Ravenna,[6] which, by means of a
+connection with the sea which the invaders could not cut off, were
+enabled to gain supplies by water, and so resist all efforts of the
+besieging host to capture them. They never fell completely under the
+Lombard yoke, and either retained a sort of partial autonomy or
+yielded allegiance to some other power. It is the cities of the former
+class that are the subject of this investigation.
+
+The condition of these inland towns at the time of the invasion was,
+as we have seen, weak in the extreme. The defenses, where they
+existed, were of a character to afford little protection, and the bulk
+of the inhabitants were so enervated from a life of poverty and
+oppression that they were almost incapable of offering any resistance
+in their own defense. They were reduced to such a condition as to be
+only too grateful if their rough conquerors, after an easy victory,
+disdainfully spared their lives, and left them to occupy their
+dismantled dwellings.
+
+This seems to have been the almost universal method of procedure. The
+Lombards did not in any sense, at first, think of occupying the
+conquered cities; for the reasons already given they despised, because
+they could not yet comprehend, the life of the civilian. They
+contented themselves with pulling down the walls, razing the
+fortifications, and destroying every mark which would make of the city
+anything but an aggregate of miserable dwellings. The inhabitants were
+for the most part spared, and left to enjoy, if the term can be used
+for such an existence, what the conquerors did not think worth the
+having. These felt the fruits of their victory to lie in the rich
+arable lands of the surrounding plains, and here they settled down,
+each in his own holding, portioned out by lot to every soldier; the
+town being considered but as a part of the _civitas_ or district, if I
+may use the term, of the _dux_ or overlord, from whom the several
+_milites_, or landholders of the surrounding territory, had their
+tenure, and who himself held directly from the king.
+
+It is the very insignificance of the municipal unit at this time that
+makes it so difficult to determine anything accurate of its position.
+It existed, but little more can be said of it; indeed, even this
+statement might be questioned, if we make that term signify a
+corporate existence, as will be seen further on when we come to
+discuss the question of the unbroken corporate existence of the towns.
+In a feudal age, or in an age of incipient feudalism, obligation,
+either claimed from an inferior or yielded to a superior, is a good
+index of rank and importance. Until we find the cities fulfilling
+certain obligations required by a higher power, we can learn little to
+tell of their condition or of their internal history. On the other
+hand, when we find the time come for fulfilling certain obligations,
+we can safely argue that the cities have acquired certain functions
+which put them in a position to meet the obligations which their
+growing importance has caused to be exacted of them. To trace these
+steps accurately and satisfactorily is impossible, but by the aid of
+collateral evidence a rough idea of the epochs at least of their
+progress can be gained.
+
+For this first period, then, we see the towns reduced to the lowest
+depths of wretchedness and disintegration; critically speaking hardly
+existing, but simply holding together. In studying institutions and
+tracing the course of their development, we must always remember that
+the uninterrupted continuance of their history may depend as much on
+the moral force of their existence as on the more limited and defined
+fact of their accurate and legal recognition by others. In every
+society a state of fact must in time become a state of law, as wise
+legislation is more the recognition by law of existing conditions than
+the formulating of new codes. So the towns, even at the period
+immediately succeeding their conquest by the Lombards, though their
+corporate existence cannot be claimed, nevertheless cannot be said in
+any measure to have ceased to exist; for as collections of individuals
+and of dwellings they were there, with an individuality uneffaced
+though as yet unrecognized.
+
+It was a period of utter stagnation, of suspension of life, but the
+source remained intact, from which, by the evolution of events and the
+progress of time, seeds were to spring that only needed external
+pressure to force them into a growth, slow indeed but certain, and in
+the end fruitful. A transition period we might call it. The theory of
+Roman universal domination, by relegating to the central power all the
+_political_ functions of the municipality and leaving it only its
+_civic_ ones, and these in later imperial times grudgingly and with an
+impaired independence, had left it simply an administrative instead of
+a political division of the state. In the flush of triumph the rough
+hand of the barbarian overthrew the framework of administration, and
+at first failed to recognize the necessity of replacing it by any
+other. The passivity of the conquered inhabitants--the cause of which
+has already been explained--was such that a long period elapsed before
+they realized that to regain in some measure the position of local
+independence that they had lost, and to free themselves from the
+shackles of dependence on the rural communities in which they were
+placed--a dependence forced upon them by the natural development of
+the new state system of their Teutonic conquerors--some common effort
+at organization was needful, for purposes at least of self-defense.
+That this effort came from the town itself, from the people and not
+from the external power of the ruler or overlord, is the fact which
+first makes the history of these municipalities interesting.
+
+There are two facts, however, which, even at this early date, begin to
+influence the internal history of the communes. These are the
+influence which the Church,[7] through its bishops, began to attain in
+the civil affairs of the country; and the idea beginning to gain
+currency that the locality where a number of individuals, however
+wretched in state, were collected together, would afford a safer
+refuge than the open country to the oppressed, the homeless and the
+outcast. I will briefly consider the latter first, as of less
+importance, though not unconnected with the former.
+
+In the period of great confusion in all relations of property which
+ensued from the Lombard military system of small independent
+landholders and a few great overlords, with a nominal royal ownership
+of title, and before the feudal system was established, with its iron
+rules in regular working order, constant inequalities of wealth and
+consequent changes in the relative positions of individuals were sure
+to ensue. In practice if not in theory, might makes right in such a
+state of society. The weaker goes to the wall, and the stronger gains
+in strength by his downfall. Besides, it was long before the roving
+and predatory instinct of the barbarian was moderated; and his weaker
+neighbor was the natural prey of the more powerful landholder, an
+example not unfrequently set by the king himself. Now, if the weaker
+party remained to brave the attack and was conquered, he was reduced
+to a state of villeinage or of dependence more or less complete. If on
+the other hand he wished to escape this change of condition, where was
+he to find refuge? The only safe asylum in those days of rapine and
+violence was that offered by the Church and its precincts. The church
+of the greatest importance in the district, in this early age when no
+walled monasteries existed, would without doubt be that situated
+within the limits of the nearest town. To this haven then comes the
+outcast, hastily collecting his family and all of his wealth of a
+portable character; the country loses a small landed proprietor, but
+the town gains a citizen, a freeman, a member of the upper class.
+
+Of course many of the fugitives who sought asylum in the towns were as
+low as the great numbers of the semi-servile population, but much that
+was new and of a better character and intelligence, and even a large
+amount of property, which later gave birth to commercial and other
+interests, were introduced by members of the higher classes fleeing
+from their more powerful neighbors. Also the human instinct of seeking
+fellowship in misfortune probably assisted in increasing the numbers
+which in times of trouble flocked towards the towns as a haven of
+refuge and a place to seek support. To see how they were in a measure
+enabled to attain these results, we must now consider the first of the
+two facts mentioned above, that is, the power in civil affairs gained
+by the bishops.
+
+When the Lombards of the conquest, in their hatred of everything which
+savored of the old Roman civilization, overthrew all the established
+offices of city government to replace them with others of barbarian
+name and origin, or to leave them unfilled altogether, among the
+time-honored officers of the Roman rule was one whose powers were
+everywhere recognized, even if at present it is a little difficult to
+define with precision his duties. I refer to the _defensor urbis_.
+This office came into prominence when Roman despotism found that it
+was overreaching itself by grinding down the defenseless _curiae_
+below the margin of productiveness. The duties of the _defensor_ were,
+as his name implies, to protect the powerless inhabitants of the
+cities against the exactions of the imperial ministers. He enjoyed
+many important privileges of jurisdiction, and these were materially
+increased by the legislation of Justinian; and soon the _defensor_
+became an important officer of the municipality.[8] What particularly
+concerns us is that he was the only municipal officer who was elected
+not by the votes of the _curia_ alone, but by those of the whole
+people forming the _municipium_, including the bishop and his clergy.
+Now in the period just preceding the invasion of the barbarians, the
+clergy alone possessed any energy and influence; so into their hands
+fell the control of this new institution, and consequently all that
+remained of life in the municipal system.
+
+As in city matters these conditions remained unaltered after the
+coming of the Lombards, what was more natural than that the bishops
+should retain their moral position of defenders of the people, even if
+we admit that the form of the office fell with the old administration?
+To these considerations we may add two important facts: that the
+office of bishop was for a long time the only one in the election to
+which the people--and by this term I mean the people as a whole, not
+the _populus_ of the old laws and charters--had any voice whatever;
+and that the bishop, from his spiritual position as pastor of the
+flock, and from his civil position as having great legal influence in
+the town and being probably the only man of superior intellect
+interested in the internal affairs of the community, was the proper
+and most effectual mediator between the people and their temporal
+rulers. Hence arose that important influence of the bishops which was
+to have so perceptible an effect on the subsequent development of the
+principles of liberty in the communes.
+
+To appreciate properly, and to give the true value to this power in
+its later progress, we must remember one thing: that it did not have
+its origin by any seeking of power by either the Roman or the
+Ambrosian church as a body, in any concerted effort to extend the
+ecclesiastical power at the expense of the civil. It came from the
+spontaneous effort of the pastor, the natural and at that time the
+only protector of the people, trying to save his flock from the
+extortion and the injustice of their temporal rulers. In addition to
+this it must be remembered that at that time the office of the bishop
+was the only one where even the shadow of the democratic idea was
+preserved, the only one where the lowest of the people, theoretically
+at least, had a voice in the election. In later times, when the feudal
+system becomes established in its completeness, the position of the
+bishop undergoes a great change, as his relations to the state and to
+society become more complex in their character; and his importance in
+the community, while it at first increases, in time surely diminishes,
+under the influence of his double relation of lord and vassal to some
+higher temporal power. When he in his turn becomes the possessor of
+political power as a great baron or as head of a _civitas_, his
+interests, and consequently his influence, are concerned with
+intriguing and with efforts for his own political advancement, in many
+cases leaving but few traces of the old relation of "defender of the
+people." It is, however, of importance to note that this decline in
+his prominence in civil life is commensurate with the diminished need
+by the people of his protection, owing to the steady increase in the
+security and independence of their position.
+
+To sum up briefly the chief characteristics of the early and obscure
+period which we have been considering, I think we can truly call it a
+transition period, and its history a tottering bridge from the dead
+Roman municipal system of the past, to the new state and city life of
+the future; from a state of society where, as we have seen, the city
+had changed from a political to an administrative division, to one
+where the city was to prepare itself again to claim, and eventually,
+by the growth of internal resources, to gain the lost function of
+sovereignty. The condition of the people during this time we have seen
+to be wretched in the extreme; the dismantled city but a bunch of
+comfortless dwellings; its inhabitants but a semi-servile population,
+with a small admixture of refugees of a better class; the city
+occupying but a subordinate place as part of the rural holding within
+whose limits it stood; whatever of wealth it contained an easy if not
+a legitimate prey to the turbulent spirits, whose mutual contests kept
+the surrounding country in a continual state of disturbance. The only
+men of any influence in the community we have seen to be the bishops,
+who, while steadily gaining in rank and power, stood forth as
+defenders of the people. During all this time, however, the new sap
+brought by the northern conquerors has been slowly but steadily
+entering into and forming the constitution of the people. The chaste
+and uncorrupted Northmen have by means of legitimate intermarriage
+with the best of the enervated inhabitants of the land, raised up an
+almost new race, who combine in their nature the humanizing effects of
+the old civilization with the love of independence and the temperate
+virtues of the northern conquerors, a race willing to benefit by the
+experience of the past, and resolved to carve out for itself a new and
+independent future.
+
+
+
+PART II.
+
+ELEMENTARY SOURCES OF MUNICIPAL UNITY IN LOMBARD AND FRANKISH TIMES.
+
+
+In the second part of this paper we have to consider a period of
+development rather than one of transition, of growth rather than of
+change. We have before us the task of tracing the advance from a
+period of barbarism to one when the feudal system had obtained an
+almost complete domination over the social system of Europe.
+Considering the principles which lay at the base of the society of new
+Europe, this system is a natural, indeed an unavoidable evolution from
+the stage of barbarism and social disorganization. The confusion in
+all social and economic relations consequent on the combination of the
+old and the new elements in European life, had led to a state of
+disintegration that could not continue. A new regulative force was
+required which would at the same time have power sufficient to control
+the various warring elements with which it had to deal and reduce them
+to some sort of harmony, and yet which would not in its nature be in
+opposition to the decentralizing spirit and the idea of individual
+independence, which formed the most marked characteristic of the
+dominant element of the new society. Feudalism sprang from the midst
+of barbarism not by a sudden birth, but by a growth at once natural
+and necessary: natural, because it was but a regulation by law of
+conditions produced by the character of the people and their mode of
+life; necessary, because the progress of civilization was carrying
+society ahead of the stage of anarchy and barbarism in which the
+overthrow of the old regime had left it.
+
+The economic changes which were produced by the transition to the new
+principles represented by the feudal system, are as great and in their
+way as important as the political ones. When we say that feudalism
+represents the transfer of the dominant power from a central head to
+scattered members, from the capital to the castles, we speak of it in
+its most prominent, its political character. But we must not forget
+that this transfer also meant a great economic change in the
+organization of society: that it meant a transfer of the seat of
+economic importance from the city to the country; the spirit of the
+times requiring, especially in the earlier stages of the development
+of the institution, that the seat of wealth should follow the seat of
+power. I note this now because we shall soon have occasion to consider
+how important a factor, in the earliest period of the development of
+the cities, their entire lack of prominence in both political and
+economic affairs was to prove itself. Under the old Roman system, as
+we have seen, the city was the important unit: Rome was a subduer and
+an upbuilder of cities. Under the new Teutonic element the land is
+what is brought into prominence, and the possessor of it into power.
+The dominant member of society is the landowner and not the citizen.
+In ancient society the "citizen" need own no land; in the modern
+society of the feudal age, the "gentleman" could not be such without
+owning land.
+
+This opposition between the citizen, the burgher, and the landowner,
+the baron, leads us to a conclusion of the utmost importance to the
+whole study of city life during the middle ages. We note the universal
+prevalence of the _forms_ characteristic of the feudal system, and
+from this we conclude that its _principles_ were as universally
+adopted. Now this is to a certain extent an error. There were certain
+institutions which from the very nature of their origin and of the
+principles on which they were based, must have been, at once in their
+idea and in their structure, opposed to the fundamental principle of
+feudalism. The Roman Church, for example, conformed itself to the
+forms and customs of this system, but never lost its structural unity
+and centralization, ideas founded on principles which stood in direct
+opposition to those of feudalism. So it was, though perhaps in a less
+degree, with the cities. Though adapting themselves in many ways to
+feudal forms, here the idea of democracy was as strong in its
+opposition to the dominant principle of feudalism, as ever was that of
+centralization in the Church. The people, in their own conception at
+least, stood out as an organic unity, and they considered their rights
+and duties as matters which concerned them collectively, not
+separately, as the commonwealth, not as individuals. Of course it was
+long before any such opposition assumed a definite form and shape,
+before even the people became conscious of its existence; but what I
+wish to point out is, that it was there in fact from the beginning,
+and must have formed a structural part of the development of city life
+in the middle ages.
+
+In outlining the course of the history of institutions, it is seldom
+that we are so fortunate as to find definite landmarks by which we can
+accurately mark the chronological course of their development. The
+giving of definite dates for the progress of ideas is in most cases
+both misleading and illusory, as, except in instances of violent
+revolution, changes are apt to be gradual, rather than immediate and
+arbitrary. But we can indicate the periods of progress by comparing
+them with the contemporary political changes, and roughly designate
+their eras by the dates of prominent political events. In doing this,
+however, we must always remember that the dates given, while definite
+from a political standpoint, are in most cases, from an institutional
+standpoint, only indicative of a more or less extended period of
+change. This fact being recognized, let us proceed to examine the
+changes introduced into Italy by the Carlovingian rulers, and the
+condition of the society upon which these changes were engrafted.
+
+When in the year 773-774, Charlemagne, in pursuance of his idea of
+universal empire, and aiding the Pope as "Patricius" of Rome, entered
+Lombardy with his army, took Pavia after a siege of six months, and
+shut up Desiderius in a monastery, he found in Lombard society a well
+defined, if not a perfectly developed system. In all their relations
+with other nations, the evidence of history proves the Franks to have
+been a conquering rather than a colonizing race; consequently we may
+expect to find that in their conquest of Lombardy, they rather gave
+her only new rulers without materially interfering with the condition
+of the inhabitants or altering their mode of life. The institutions of
+the Frankish nation were similar, in many important matters identical,
+with those of their neighbors across the Alps; so the changes
+introduced into the Lombard system by the Carlovingian rule are, with
+a few exceptions, not such as affect the integral structure of
+society, but for the most part only such as refer to the character and
+position of the central or ruling power.
+
+I say with a few exceptions, for among these very exceptions are to be
+found certain alterations in the government of the cities, introduced
+chiefly by the necessities of the system of central government
+established by Charlemagne, but also partly by the claims of
+individuality, which at this time first began in the cities timidly to
+call for recognition. The very relation of the cities with the central
+power seems to me to be a much more important factor in their growth
+during this period than is generally supposed; for it not only secured
+to their inhabitants better chances of justice and protection from the
+powerful local rulers, but, bringing them, through certain officers,
+into direct connection with the head of the state, added not a little
+to their moral importance, a condition which in a growing community is
+always closely followed by an increase of material importance.
+According to their size they were the seats of courts of varying
+degrees of importance, and from them as centres proceeded the acts of
+royal officers, both ordinary and extraordinary. Ticinum was the
+capital, where in Lombard times the king had his palace.[9]
+
+For a satisfactory study of the development of the municipal
+institutions we need a thorough understanding of the organization of
+society at this time, and especially of the relations which the
+municipal and rural communities bore to one another and to the
+government. I will endeavor to give, therefore, a description of
+Lombard society about the close of the eighth century, as brief as is
+consistent with a clear understanding of these relations, and as
+complete as the great difficulties of the subject will permit,
+pointing out, whenever they are authentically traceable, the changes
+introduced in consequence of the Carlovingian conquest.
+
+When we reach in Lombard history the period when the power of the
+native kings was first overthrown by foreign arms, we are no longer
+confronted by many of the problems which necessarily formed an
+important part of the earlier portions of our investigation. I mean
+the problems which arise in a state of society where the mass of
+individuals forming it is made up of two elements, a conquering,
+dominant one, and a conquered, subject one. During the two centuries
+elapsed since the Lombard barbarians conquered Italy, the two races,
+originally so different in their ideas and in their character, so
+opposed in their customs and in their nature, have been slowly but
+surely blending together, on the strength of common environment and by
+the necessities of mutual relations: so that by the last half of the
+eighth century, we can truly say that national differences, as such,
+have disappeared, and left behind them a single race, a combination
+but still a unity. We no longer have to deal with a double
+nationality, with the northern conquerors and their southern victims,
+with the oppressed and their oppressors. In considering the
+development of the institutional life of the people, we need no longer
+seek for differences, but may assume the easier task of tracing
+similarities. In a word, we no longer speak of Lombards and of Romans,
+but describe all that remains of both by the new word _Italians_.
+
+It is not within the scope of this enquiry to trace the various steps
+or indicate the various influences, the civilizing effect of the
+Church, the restraining power of the law, by which this complete
+amalgamation of two distinct races became an accomplished fact; we
+need only to note that the unity of the race was achieved. Even
+Macchiavelli recognizes this fact and, speaking of the time of the
+Carlovingian conquest, in the brief review of the history of all Italy
+which forms the first part of the first book of the "Florentine
+History," he truly says that, after two hundred and twenty-two years
+of occupation by the Lombards, "they retained nothing of the foreigner
+save the name."[10]
+
+But we must always bear in mind that it was not a process of
+absorption of one race by another, but a process of combination, of
+amalgamation; a levelling process, by which some members of the
+conquered people, by natural and economic causes, were raised to the
+level of their superiors; and on the other hand, some of the
+conquerors, by reason of similar causes, fell to the rank of the
+subject population. By manumission and by the various forms of
+vassalage more or less honorable, and by gaining some economic
+importance by trade and other means, many of the descendants of the
+Roman population gained admission to the ranks of the Arimanni, and
+obtained the full franchise by the possession of landed property. By
+forfeitures, consequent poverty and ultimate pauperization, many of
+the Lombard stock lost their rank and their lands and entered the same
+state of vassalage with the great body of the people. We see evidences
+of this change, this levelling up and levelling down, all through the
+military code of Liutprand, and in the later one of Aistulf can even
+more distinctly trace its progress; and without entering into further
+detail, we can definitely state that, by the time we are now
+considering, all traces of distinct race-origin had disappeared in the
+mass of the people, and the only safe distinction that we can draw is
+to say that among the families of the dukes and greater nobles, the
+Lombard stock was preserved comparatively pure, and that the serf
+population was, generally speaking, of Roman descent.[11]
+
+
+                       KING
+          +--------------+--------------+
+          |              |              |
+        COUNTS         DUKES         GASTALDS
+                         |
+          +--------------+--------------+
+          |              |              |
+        CUTANEI       SCABINI       SCULDAHIS
+     (LATER BARONS)
+      | | | | |
+      | | | | +-------------------------------+
+      | | | +-------------------------+       |
+      | | +-------------------+       |       |
+      | +-----------+         |       |       |
+      |             |         |       |       |
+     ARIMANNI       |         |       |       |
+                 MASNADA      |       |       |
+                            ALDII     |       |
+                                    SERFS     |
+                                            SLAVES
+
+     The above table, while its divisions must not be taken too
+     literally, will, I think, give some indication of the
+     estimation in which the various classes of society were
+     held. It is too early yet in the development of the feudal
+     system to say that the derivation lines show the course of
+     an absolute feudal tenure, and they are not meant for that
+     purpose, but simply to indicate the succession of the
+     inequalities of rank.
+
+Turning now to the territorial divisions of the country at this
+period, we find them practically unchanged. The _civitas_ still stands
+as the sectional unit; the territory with its city still represents
+the administrative division of the state. It is fundamental to a
+correct understanding of the early development of communal
+institutions that we should have a thorough knowledge of the meaning
+of this term _civitas_; of the extent of its application and of its
+limitations. I used the words "territory with its city" in defining
+the administrative division of the state, and perhaps this term
+describes the _civitas_ better than any single word would do. In the
+Roman municipal system we have the city with its surrounding
+territory, over which extends the jurisdiction of the _curia_; in the
+Lombard system we have the territory, the land, in some part of which
+is located a city, a fortified place.
+
+This is to my mind the important point which settles satisfactorily
+the vexed question of the dominance or the disappearance of Roman
+influences. The institutions of the Lombards were similar in character
+to those of the other Germanic races, and the continuance of any
+overruling municipal influence among them would have done violence
+alike to their traditions and to the nature of their race. The old
+municipal predominance as a system disappeared, the old municipal
+divisions and many of the minor forms and offices as a fact remained.
+It is these latter which give some color to the arguments of writers
+like Savigny,[12] who endeavor to maintain the continuance of the old
+Roman _curia_. They find evidence of the continuance of old
+boundaries, of many old names and many old executive functions, and
+fail to appreciate that the principle which lay back of and was making
+use of these old forms as convenient channels for the expression of
+its power and of its control, was an entirely new one, based on ideas
+fundamentally opposed to those of the civilization it had conquered.
+This slight warning is necessary so as to avoid any error in the
+conception of the significance to be attached to the geographical
+limits of the divisions of territory we are considering.
+
+The word _civitas_ has the same signification as _comitatus_, when
+that word was used with the meaning of a territorial division; and
+included all the territory, with its lands, its villages, its
+fortified places and its city, which came under the jurisdiction of a
+_dux_ or _judex_, or in Frankish times of a count, when we are
+strictly justified in giving it the more familiar name of _county_.
+From this we trace the Italian word _contado_, by the steps _comitatu,
+comitato, contato, contado_. The land division here indicated is
+indifferently called in the Lombard records _territorium, fines,
+civitas_, or _judiciaria_. The identity of all these terms admits of
+easy proof from all the documents, public and private; and numberless
+instances could be cited showing an interchange of terms in describing
+the same locality.
+
+I will mention in illustration of this fact the rather neat example of
+a document of the year 762, published by Brunetti[13] in his Codice
+Diplomatico Toscano, in which three of these terms are used
+interchangeably in the space of a few lines. It is a contract by which
+a certain Arnifrid, an inhabitant of Clusium--the modern Chiusi--who
+"in clusino territorio ... natus fuit," pledges himself to live on a
+certain property, and says "nullam conbersationem facias nec in clusio
+nec in alia civitate habitandum, nisi.... &c.," and promises to pay
+fifty _solidi_ if "pro eo quod ipsa pecunia demittere presumbsero aut
+de judiciaria vestra suaninse exire voluero." The contract is "Actum
+in civitate suana." We here see the words _territorium_ and _civitas_
+both applied to the territory of Chiusi, and the words _judiciaria_
+and _civitas_ both applied to the territory of Siena, and we only need
+to remember that things which are equal to the same thing are equal to
+each other, to recognize the identity of the terms. If we look at
+document number eight in the same collection,[14] we will further see
+the territory of Chiusi referred to as "fines clusinas."
+
+Hand-in-hand with the growth of episcopal organization we see another
+term coming into use in connection with the same land division, and
+this also is an administrative one, but of the church simply, and only
+made use of by conversion or carelessly when applied to a civil area.
+I mean the _districtus_, which term is properly applicable only to the
+jurisdiction of a bishop, and designates the limits of his episcopal
+power, that is, his diocese. The reasons for this term being used in
+later times occasionally for the civil division, the _civitas_, are
+twofold. They result, firstly, from the confusion which arose between
+matters of civil and ecclesiastical jurisdiction, when political power
+was given to a large number of the bishops, and when they united to
+their religious duties as pastor, the judicial and sometimes even some
+of the military duties of _comes_ and _judex_. And secondly, in the
+important fact that in almost all cases the boundaries of a bishop's
+diocese coincided more or less exactly with the limits of the
+authority of the state officers; so that the division which should be
+called a _civitas_ or _territorium_ from the point of view of civil
+government, should be called a _districtus_ from that of
+ecclesiastical government.
+
+Where we find at once the most important and, if not rightly
+understood, the most perplexing traces of the survival of the old
+Roman municipal system, is in this matter of territorial boundaries.
+According to the Roman system, as we have seen, the city was the
+important administrative unit, and each city was surrounded by a belt
+of rural lands, more or less large according to the size and
+importance of the city itself. This of course resulted in a division
+of the whole country into a number of districts whose boundaries were
+definitely marked, perhaps even jealously guarded. Now, when the
+Lombards took possession of the country, while they rejected the
+principle of the municipal unit, as foreign to the character and
+instincts of their race, they could not fail to see the practical
+utility of using, and the actual difficulty of overthrowing, a system
+of land division which custom and authority had united in rendering
+alike definite and convenient. What was the result? They made use of
+the old boundary lines, leaving their limits, as far as we can judge,
+untouched, and substituted as the fundamental principle of their
+administration, in place of the Roman idea of the _municipium_, the
+thoroughly Teutonic idea of the _civitas_ or country district.
+Coincident with these time-honored boundaries which served to mark the
+limits of the jurisdiction of the duke and the _judex_, are to be
+found those of the ecclesiastical power, of the bishop's diocese.
+
+This statement is confirmed by the many charters, immunities, etc.,
+addressed to the episcopal authorities; and direct proof of it may be
+had by reference to the controversy which arose in the first half of
+the eighth century between the bishops of Arezzo and Siena, which
+dispute was based on the fact that for reasons definitely stated these
+two dioceses formed an exception to the general rule. The strength of
+the proof lies in this exception, which had a well-known cause for its
+origin. Some of the documents[15] in the case, of the year 715, show
+that the bishop of Siena claimed for his jurisdiction certain churches
+which belonged to the diocese of Arezzo, basing his claim solely on
+the ground that these churches were situated in the _territorium_ of
+Siena. The bishop of Arezzo, on the other hand, claims them as part of
+his diocese, on the ground that they had formed part of it ever since
+the beginning of Lombard rule in Italy; and--which is the part of
+importance to us--gives as the only reason for their having been
+attached to the diocese of a neighboring _territorium_, the fact that
+at that early date there was no bishop in the _territorium_ of Siena.
+That a claim of such a character should have been based on the
+argument of the natural coincidence of the boundaries of _territorium_
+and diocese, is sufficient proof of the identity of these limits at
+that age. In a bull of the year 752,[16] Pope Stephen II. decides to
+adhere to the already existing diocesan divisions, and adjudges to the
+bishop of Arezzo the churches "quae esse manifestum est sub
+consecratione et regimine praefatae S. Aretinae Ecclesiae, territorium
+vero est prefatae nominatae Civitatis Senensis."
+
+We see then the perpetuation of the old Roman land divisions in the
+new commonwealth through the medium of the _civitas_ and the diocese.
+How long these divisions remained intact and what were the causes and
+the extent of their final overthrow, forms part of the history of the
+later development of the Italian communes. Here I will simply indicate
+the fact, that among the reasons which led in most instances to a
+departure from this system of land boundaries, are to be found some of
+the most important causes for the development of freedom and
+independent jurisdiction among the cities. It is to the destruction of
+this identity of interests and of government which existed between
+country and city, that is owed the ultimate predominance of the
+latter, and its regaining its ancient position of a self-centered
+unity; although in its new form we find this depending on the
+principle of individual liberty, instead of being based on the
+principle of government by a central power. Whether this emancipation
+from the bonds of a rural dependence was brought about by the practice
+later entered upon, of breaking up the counties into a number of
+smaller units with the so-called "rural counts," each ruling over a
+_castellum_ or fortified village; or by the fact that many of the
+bishops obtained political as well as religious control over a city
+and a limited area of the surrounding country, generally extending
+only three or five miles beyond the city walls; or whether this
+freedom was the result of the spontaneous growth of civic and economic
+life within the city itself; or finally, whether it came from a
+combination of all these and many minor causes, is a question
+which--for the early period of the development at least--the progress
+of our investigation will answer for itself.
+
+It will, however, be impossible for us to understand thoroughly the
+relations of the city under Lombard and Frankish rule to the central
+and to the local government, unless we know somewhat of the local and
+state officers who exercised jurisdiction within the territorial
+limits just described. By a consideration of their special powers and
+of their special duties, we must learn all that we can know with any
+degree of certainty with regard to the position of the city in these
+times. With this in mind, let us first examine the office whose
+functions it is at once the most difficult and the most important for
+us to understand in all its bearings--that of the _Judex_. We must
+consider it not only in the relation which it bears to the higher
+grade of officers, the Lombard duke and the Frankish count, but also
+in its relation with the lower officials who severally enjoyed more or
+less of the powers attached to its possession, namely, the gastald,
+the sculdahis, the scabino, and even the rural counts and the bishop.
+And in tracing its development we must note the influence it bore on
+the growth of the municipal idea, and also its connection with the
+political jurisdiction, commonly combined with it in the person of a
+single official.
+
+In considering the institutions of a comparatively crude state of
+society, such as existed in Europe in the early middle ages, it is
+misleading if not impossible to differentiate to any great extent the
+various functions and kinds of power which were commonly centered in
+the same individual. Consequently the only safe way to give a clear
+idea of the position and the powers of the _judex_, is to give a
+description of the various offices to which judicial authority was
+attached, in degrees more or less complete, corresponding to the
+social and political importance of the person exercising this
+authority.
+
+In the Lombard system, at the head of each _civitas_, as lord and as
+judge, was the _dux_, or duke. His title and his office being but the
+relic of his original high position of leadership in the army of the
+invasion, when his command was only subject to that of the king, the
+leader-in-chief of the army-nation and head of the military
+constitution, he held directly from the king, attended the royal
+_placita_ as the king's vassal, and held _placita_ of his own within
+his own jurisdiction, and over which he presided in person. Beyond the
+duties of his own particular jurisdiction his chief office was to
+assist the king by his presence and his counsel, when the king gave
+his judgments at the annual assembly in March, at the capital Ticinum.
+The importance of this concurrence of the _judices_ in all the king's
+decrees and official acts is illustrated by the fact that cases are
+rare in which this concurrence remains unmentioned. The usual practice
+is to introduce in the prologue which is commonly attached to the laws
+given out during each year of the king's reign, after the mention of
+the date "Kalendiis Martiarum," some such expression as "cum nostris
+Judicibus";[17] or "ad nos conjungerentur Judices";[18] or "per
+suggestionem Judicum";[19] to which is sometimes added the formula
+"omniumque consensum,"[19] or "cum reliquis nostris Langobardis
+fidelis." That legislation was not considered valid until such consent
+and advice was obtained, we can see from the prologue to the laws
+issued in the thirteenth year of the reign of Liutprand, in which he
+refers to certain important "causae" which had come under his
+jurisdiction, and for which additional legislation was necessary, the
+laws already existing failing to reach them. To meet the exigency new
+laws are enacted, but the king especially states that the cases must
+remain in abeyance until the new laws are confirmed by the _judices_
+at the next assembly in March. In speaking of these "causae" in the
+above-mentioned prologue to the laws, he says: "Proinde providimus eas
+usque ad suprascriptum diem Kalendii Martiarum suspendere dum usque
+nostri ad nos conjungerentur judices," etc.[20] This attendance at the
+royal _placita_ represents the most important of the legislative
+duties of the _judex_ outside of his own jurisdiction.
+
+Of other duties which caused him to leave the seat of his authority,
+the only ones we need here consider are his military duties; and with
+regard to these it will be sufficient to point out that the _judex_
+was the leader in war of the vassals and lesser lords, and indeed of
+all the inhabitants of the _judiciaria_ who were entitled or
+compelled, by the forms of their tenure, to bear arms. Ample proof of
+this is to be found throughout the law codes, but we need not pause to
+cite such confirmation, if we remember the natural evolution of the
+office of _dux_ from his position in the original Lombard military
+system. As a good example of this military leadership we may refer to
+the provisions of the twenty-ninth law in the sixth book of the laws
+of Liutprand.[21]
+
+What is of the greatest importance to us, however, in bringing out the
+relations of the cities to the rest of the community in Lombard and
+Frankish times, is the position of the _judex_ as duke and as count
+within his own _judiciaria_, that is, within the _civitas_ of which he
+was both lord and judge. It was through him, or perhaps I should say
+chiefly through him, that the city was at this period connected with
+the state; and it was principally by the exercise of the functions of
+his office that the city formed a part of the state. His official
+residence, in the majority of cases, and his courts, were situated
+within the city's limits; thus making the official machinery of
+government a part of the city life, and causing the city to become an
+actual if not a legally recognized part of the constitution of the
+state. As far as this investigation is concerned, this represents the
+prominent feature of the power and position of the head of the
+_civitas_. We must be careful, however, to avoid any confusion of
+ideas as to the importance which it gave to the city as a municipal
+unit or as a corporation. It was in no way what we could call a
+municipal government, even admitting a rather loose interpretation of
+the term, as the supporters of the theory of the survival of the Roman
+curial system would have us believe.[22] The _judex_ may be called
+"the highest municipal officer among the Lombards," and this
+designation still be correct, though perhaps misleading. He was the
+highest officer of the locality, and his official duties were for the
+most part carried on within the city; but the leading fact we must
+keep prominently before us is, that he was the head of the whole
+_civitas_, and not in any sense of the city as such: and further, that
+his powers over the rural portions of the _civitas_ were in no sense
+added to any purely municipal powers he may have possessed; but, on
+the contrary, if we are to draw any distinctions, the municipality
+formed a part of the land division. That the whole _civitas_ was
+commonly named after the largest town contained within its borders,
+and that the seat of power was generally placed within the city walls,
+are facts too evidently brought about by motives of convenience and
+expediency and by the force of old association, to lead to any
+confusion in appreciating the proper place of the city. Where there
+were to be found buildings suitable for the residence of the _dux_,
+and where was located the largest collection of individuals, was
+manifestly the most appropriate place for holding the courts and
+settling the disputes of the inhabitants of the whole _civitas_, and
+this formed a natural centre for the machinery of government. But
+every inhabitant of the _civitas_ had equal rights with the townsman
+proper, and, as in the old Greek [Greek: polis], the most remote
+countryman dwelling on the borders of the _civitas_, if he possessed
+the franchise, was as much a citizen of Padua, Siena or Milan, as if
+he dwelt within the walls of the city which gave its name to the whole
+_civitas_.
+
+A consideration of these facts brings out two important points, which
+I will briefly indicate before passing on to a little more detailed
+treatment of the powers and the duties of the _judex_. In the first
+place it has been made clear that at the time under discussion nothing
+that could correctly be called a "municipal system" existed in
+Lombardy, and the city, _as such_, had no independent existence or
+independent relations with the state. And secondly, it cannot but be
+manifest that the position that the city did occupy as actual, if not
+necessarily as legal, centre from which issued all the administrative
+functions of the district, the residence of the chief authority and
+the seat of his courts, would have a marked tendency to increase
+slowly, perhaps imperceptibly at first, the importance of its position
+at once in the _civitas_ and in the state, and at the same time to
+improve the character of its inhabitants and in time increase their
+wealth. That this ultimately came about the development of the later
+independent communal life is a proof, and the tardy steps by which
+this was attained but serve to show the difficulties consequent on so
+slight and so feeble a beginning.
+
+The obscurity which promptly descends on the brain of the intelligent
+reader who endeavors to gain a clear idea of the state of society or
+of the administration of government in these early ages of Italian
+history, makes the careful student very skeptical of any precise
+presentation he may find of them, and causes him to be particularly
+cautious and proportionately diffident in making, himself, any very
+definite statements concerning them. If he be a wise man and wish to
+make his investigation of some use to others, he frequently says "it
+seems probable," and he particularly avoids mentioning dates which are
+fixed and immovable. If this may be said of all matters not belonging
+simply to the narrative portions of history at this period,
+particularly true is it of the different functions attributed to
+various officers of local government, whose very titles we sometimes
+have to infer from their duties, and whose duties we often have to
+infer from their titles.
+
+To these the _judex_, though the most prominent, cannot be said to
+form an exception. That he was the head of the district judicial
+system has in part been already shown, and will come out more clearly
+when we come to define the powers of some of his subordinates. His
+leadership in war we have seen to be but the natural continuance of
+his original office; and that as _dux_ he was to be ranked among the
+first nobles of the land, the "optimates," the "viri illustres," we
+can see from the following passage in the laws of Liutprand, when in
+the prologue to the third book already quoted, he gives forth the
+edict with the judges as "una cum illustribus viris optimatibus meis
+ex Neustriae et Austriae et Tusciae partibus vel universis nobilibus
+Langobardis."[23] Although the position of the _duces_ as nobles of
+the land never altered, their power relative to that of the king
+suffered many modifications. The ducal power--"principes" of
+Tacitus--preceding among the Lombards that of the king, we see the
+dukes exercising much greater control in the earlier stages of the
+monarchy: even, on the death of Clefis--576--actually establishing a
+sort of aristocratic republic, under the leadership of thirty dukes,
+which lasted for ten years; after which time, on the event of a
+dangerous war with the Greeks and the Franks, Authari, the son of
+Clefis, gained the throne by election; the dukes giving up to him,
+says Paulus Diaconus,[24] the half of their estates for the support of
+his dignity, retaining, however, the rest, not as servants of the
+king, but as "principes" of the people, an important distinction.
+Agiluf--591 to 615--originally duke of Turin, met with much opposition
+from the power of the dukes; but when we come to the time of
+Rhotari--636 to 652--we find their power already declining, and in the
+eighth century, as for example under Liutprand--712 to 736--the laws
+show them reduced to the position of the other _judices_, but still
+representing a high aristocracy whose consent was, as we have seen,
+necessary to all acts of the king.
+
+The most important of the functions of the _dux_ as _judex_ was
+holding the _Curtis Regia_ or _Curtis Ducalis_, in the largest city or
+"urbs" of every _civitas_. Here, in conjunction with his subordinates,
+he heard all cases which did not go up to the king for judgment, and
+here was centered the fiscal administration of the _civitas_. To
+describe in detail the composition of these _curtes_, their
+jurisdiction and methods of procedure, would require a whole chapter
+of no mean proportions, and however interesting in itself, would be
+out of place in the present investigation. All that it is needful for
+us to consider is the relation of these _curtes_ to the municipalities
+in which they were located. Of their location within the city walls
+the proofs to be found in numbers of the old documents are to me
+conclusive. I will give a few examples, however, commencing with two
+from the documents which have already been quoted from Brunetti,
+relating to the dispute between the bishops of Siena and Arezzo. In
+the first of these[25] we see that in the year 715, the king's
+_majordomus_ Ambrosius interferes "in Curte a Domini Regis" at Siena,
+in opposition to the local bishop and gastald; and in the second[26]
+we find the royal notary Gunthram forbidding a fresh examination of
+witnesses "in Curte Regia Senensis." In a document of the next
+year[27]--716--we find "Ebugansus, Notarius regiae Curtis," taking
+part in the procedure in a case between the bishops of Pistoia and
+Lucca; and a little later, in the year 756, is mention of an exchange
+of property between "civitis regia lucencis" and the church situated
+in that city.[28] In the "Opusculum de Fundat. Monast. Nonantulae,"
+published by Muratori,[29] we find a donation by King Aistulf to that
+monastery: "prope castellum Aginulfi, quod pertinet de curte nostra
+lucense, et duas casas masaritias de ipsa curte"; and "granum ilium,
+quod annue colligitur de portatico, in Curte nostra, quae sita est in
+Civitate Nova."[30] In Carlovingian times Charles the Bald, in the
+year 875, in the "Chronica Farfense,"[31] appears as saying, "in Curte
+nostra infra Castrum Viterbense": elsewhere "curtis regie Viturbensis"
+is spoken of[32]: and later, in 899, Berenger gives to the bishop of
+Florence "terram ... pertinentem de curte Regis istae Florentiae"[33]:
+and finally, not to multiply examples, I will mention a privilege of
+Karloman's, published by Ughelli[34], by which he gives to the bishop
+of Parma certain regalia: "id est curtem regiam extructam infra
+civitatem Parmam cum omne officio suo," etc. From even these few
+instances we can see the connection between the _Curtis Regia_ and the
+city which gave its name to the _civitas_, a connection the importance
+of which we must not fail to appreciate, in consideration of the great
+influence which it exercised in the future development of the
+municipal unit from a beginning so insignificant.
+
+Of some importance in connection with the early history of the cities
+are the questions which arise in relation to the fiscal duties and
+privileges of the _curtes regia_ and its officers. In it was centered
+the fiscal administration of the kingdom; and its officers, in the
+various grades from the _dux_ downward, received and were responsible
+for the revenues of the state. So prominent a part belonged to this
+form of the functions of the _curtes_ that it is quite common to hear
+the revenues themselves, by a transposition of terms, called by that
+name, or by that of _palatium_, a word sometimes found even for the
+_curtes regia_ in their proper general sense; but this, from what I
+have been able to gather concerning its legitimate use, should
+properly be applied only to the residence, or by conversion the
+revenues of the king himself[35]. What is of interest to us in this
+matter is the fact that the _curtis regia_ fell heir to the _publicum_
+or communal property of the old Roman _curia_, when these were
+overthrown by the Lombard conquest.
+
+In considering this phase of civil administration under the Lombard
+system, we are again brought face to face with the old question of the
+survival or non-survival of corporate existence among the cities. For
+if it could be proved that the municipality in its corporate capacity
+retained the communal property and administered it, there would appear
+to be good grounds for the assertion of the continuance of some form
+of quasi-independent municipal government; but if, on the other hand,
+it were found that the property of the municipality passed to the new
+head of local administration or to the central power, it would be
+evident that the continuance of the municipal system as such was a
+logical impossibility; for, deprived at once of its property and of
+its revenues, it would have had no vitality to keep it from a speedy
+end.
+
+In investigating a question of this nature from the sources at our
+disposal in a period of history so obscure, we cannot expect to find
+any definite statements sufficiently precise to set at rest at once
+all opposition and discussion; but after considering the character of
+the people we are investigating and studying their institutions, and
+after a careful examination of the laws and records which form the
+sources of our information, we are, I think, in a position to be able
+to give a sufficiently decided opinion as to whether a particular set
+of facts or conditions could possibly have existed in a state of
+development and in a society of a given character. Thus it is in
+regard to the matter in hand. From the numberless cases in which the
+_publicum_ is mentioned in the documents from which we draw our
+materials, it seems to me possible for a critical examiner to come to
+but one conclusion, if, as is quite essential, he take into
+consideration the unmistakable spirit of these writings, and if he
+give a legitimate interpretation to the various terms employed. To
+cite in direct proof any individual instance is, perhaps, impossible;
+but indirect evidence is forthcoming in abundance, and of a character
+to be, to me at least, entirely conclusive. The conclusion reached is,
+then, that the king and the dukes were the successors of the old
+_curia_ in the possession and the administration of all properties and
+revenues, taxes and fines formerly belonging to the organized
+corporations of the Roman municipalities, and that the _curtes regiae_
+were the channel through which these were collected, divided and
+expended.
+
+The grounds on which this assertion is based are the continual
+recurrence of examples of functions of a fiscal character being
+exercised by the head of the _civitas_ and his officers, and by them
+alone; and it appears to me that it could only be by a complete
+misunderstanding of the spirit of the early writings, and by a
+comprehensive misapplication of the terms used in them, that these
+functions could be referred to any other power. These functions of the
+administration may be grouped under three main heads, viz: 1. Fines
+and forfeitures, which, of course, played a very prominent part under
+the Teutonic system of composition for offenses of a criminal nature;
+2. Taxes and privileges, by which is meant feudal rights, dues, etc.;
+and 3. Buildings and lands belonging to the crown or to the head of
+the _civitas_ as a public officer.
+
+Of the fines and forfeitures paid into the _publicum_, we find that a
+part went to the royal treasury and a part to the _judex_, and in some
+cases to the informer or the prosecuting officer; and at different
+times we find these proportionate amounts definitely defined--as, for
+instance, in the time of Charlemagne two parts went to the king and
+one part to the count who acted as _judex_;[36] this we know from two
+of the Lombard laws of that emperor.[37] In one of these,[38] speaking
+of those who evaded military service, he says: "Heribannum comes
+exactare non praesumat: nisi Missus noster prius Heribannum ad partem
+nostram recipiat, et ei," the Count, "suam tertiam partem exinde per
+jussionem nostram donet."[39] We even find evidence of quite a large
+amount of liberty used by the _duces_ in the ultimate disposal of
+property coming under their jurisdiction by forfeiture, the more
+powerful making use of it precisely as if it were private property.
+For example, in the Chronica Farfensis[40] appears a case judged by
+Hildeprandus, _dux_ of Spoleto, in the year 787. A certain nun named
+Alerona, for having married a man named Rabennonus, "secundum legem
+omnis substantia ipsius ad Publicum devoluta est"; a little later
+Rabennonus, for having killed a man, "medietas omnis illius
+substantiae ad Publicum devoluta est." In consequence, in poetic
+justice and for the good of his soul and the king's, Hildeprandus
+quite arbitrarily presents "omnem praedictam illorum substantiam,
+qualiter secundum legem juste et rationabiliter, ad Publicum devoluta
+est," to the Monastery of Farfa "pro mercede Domnorum nostrorum Regum
+et nostra." Here, as in many other cases, we see the _dux_ making
+gifts of property belonging clearly to the _publicum_, to persons
+favored by him and for his own benefit. Such a condition of affairs
+would certainly never have existed had public property been
+administered by authority other than that of the _dux_.
+
+With regard to the revenues falling under the second of the rough
+divisions we have indicated--taxes and privileges--it is easier to see
+why differences of opinion should have arisen; for here, especially in
+matters relating to the collecting of taxes and dues, we are
+confronted with the names of a large number of lesser officials and
+subordinates of the _judex_, some of which are undoubtedly taken from
+the like officers existing in the old Roman curial system. But this
+survival of names, and in some instances of offices, need cause us no
+alarm, for it coincides exactly with the theory presented, namely, a
+continuance of many of the old _forms_ of administration controlled by
+an entirely new _principle_ of government. There are certain minor
+functions necessary for the support of the state which must be carried
+on in much the same manner, whatever be the character of the governing
+power--certain subordinate offices whose duties must be performed
+under a republic or under a despotism. Taxes may be collected by
+widely differing methods under the two systems, but there must always
+be the tax collector and the tax assessor. We can, however, see at a
+glance the weakness of any argument which contends that because the
+name and even the general duties of the tax gatherer were the same in
+each case, that the whole system of administration of the taxes or of
+the community were necessarily identical or even closely allied in
+character.
+
+It is here we see the weakness of those writers who insist upon the
+continuance of the Roman _curia_ in the municipalities of the Lombard
+kingdom. They seize upon a few names, relics of Roman rule, and from
+them generalize a complete system of taxation and administration. That
+the existence of any such system is alike contrary to fact and to the
+whole nature of the Lombard people, any critical and impartial study
+of the sources of government revenues at this time will make clear. It
+would be out of place to burden a paper of this character with the
+results of a minute investigation into the fiscal relations of the
+rulers and the people when this has no immediate connection with the
+development of municipal government; but I will state that a careful
+examination of all available sources, including documents and
+statutory enactments, both public and private, reveals, to my mind, a
+theory and a system of raising the revenues of the state closely
+allied in both principle and detail to feudal forms and feudal ideas,
+and having little in common save the names of a few of its officers,
+with the ancient methods of collecting the taxes peculiar to the Roman
+municipal constitution.[41]
+
+In general terms, the collectors of the revenues were called
+_telonarii_, or _actores, exactores_ or _actionarii_, etc., and the
+taxes they collected were the usual feudal dues, fines, forfeitures,
+compositions for service, etc. The nomenclature of these various
+officers and of the different duties they had to levy, varying as it
+did with regard to locality, and more especially with regard to
+time--the Franks introducing an entirely new set of names for
+institutions often identical in character to those displaced--presents
+an amount of confusion which, fortunately, it is not necessary for us
+to endeavor to penetrate; but, having stated the foregoing general
+conviction with regard to the fiscal system, we will now pass on to a
+consideration of some of the lesser offices held within each _civitas_
+by the deputies and subordinates of the _dux_. These, of course, were
+connected, in degrees more or less close, with the different _curtes
+regiae_, and with the _placita_ held in the various _civitates_
+commonly about three times in the year. Some of the officers, like the
+_vice-comes_ found to have existed in many localities, are simply
+deputies of the _dux_, or representatives of his person, and hold
+their office simply by virtue of his will and under a somewhat
+arbitrary tenure; others, like the gastald, the _sculdahis_, and later
+the _scabinus_, represent offices which formed an integral part of the
+constitution of the government, and appointment to which, whether made
+by the _dux_ or by the central power, involved a necessary duty of a
+determinate character. An accurate determination of the relative
+positions of these various minor officials, of the extent of their
+jurisdiction and of its limitations, presents one of the most
+difficult problems which the student of these dark ages of history is
+called upon to solve. The peculiar character of the sources from which
+we have to derive all our information makes it quite possible for all
+writers on the subject to disagree with regard to details, and leaves
+a wide margin for discussion even on the important characteristics of
+the various offices. Avoiding as much as possible the points of
+controversy, I will endeavor to give the general features of the more
+important of these offices, the conclusions given in each case
+resulting from an examination of the different theories held and of
+the sources on which these are based.
+
+The officer who seems to have ranked next in importance to the _dux_
+within the limits of the _civitas_ is the gastald, who goes
+indifferently by the name of _gastaldus, castaldius_, or _gastaldio_.
+His powers were of a judicial character, and he shared with the _dux_
+the title of _judex_; but whether he enjoyed the full prerogative of a
+_judex civitatis_, or whether his judicial functions were of a more
+limited character and referred exclusively to matters of a fiscal
+nature belonging to the _curtis regia_ or the _camera_ of the king, is
+a question to which the evidence to be gathered from the law codes
+gives no decided answer.[42] It seems probable, however, from the
+importance seemingly attached to the holders of this title in the many
+cases in which they are mentioned in the old laws and documents, that
+their jurisdiction was of a broader character than would be implied by
+a restriction to purely fiscal functions; in fact, that it approached
+more nearly to the power of the _dux_ and _judex civitatis_, though
+being in some way of less extent or possibly supplementary to it.
+Perhaps the distinction would come out more clearly if we said that
+the office was characterized by its relations to the fiscal functions
+of the state, but that its duties and privileges appear not to have
+been restricted to affairs of that nature. It is certainly true that
+very many instances occur in which the duke and the gastald are
+alluded to, whether in laws or in contracts, in precisely the same
+terms and in positions which would seem to indicate an almost perfect
+equality of dignity. As, for example, in a meeting between Liutprand
+and Pope Zacharias, described by Anastasius Bibliotecharius,[43] where
+dukes and gastalds are together reckoned among the _judices_: here the
+king goes to meet the pope "cum suis judicibus," and gives him as an
+escort "Agripandum ducem Clusinum, nepotem suum, seu Tacipertum
+Castaldium et Remingum, Castaldum Tuscanensem." In spite of this
+apparent equality, however, it seems to me nearer the truth to
+consider the position of the gastald as an inferior one to that of the
+_dux_, especially in Lombard times, before that official was replaced
+by the _comes_ of the Carlovingians.
+
+The important point which it is necessary to emphasize in this
+connection is the fact that the gastald held his tenure, not from the
+_dux_ as his subordinate, but from the king in person, and for this
+reason can more fitly be compared with the later count than with the
+_dux_ of the Lombards. Consequently it is in the matter of tenure that
+I think is to be found the difference in power between the two
+officers. In addition to his official authority, the _dux_ was
+possessed of a power and an influence entirely his own, derived quite
+as much from the number of his vassals and his position in the
+_civitas_ as from the grant he received from the king. At home he was
+a powerful lord, and though he, of course, owed fealty and service to
+the king, he was by no means a king's servant, like his successor the
+Carlovingian count. The gastald, on the other hand, was eminently a
+servant of the central power; and whether or not he was engaged
+exclusively in looking after the fiscal interests of the masters who
+employed him, he had no power and no influence except such as he
+derived from the source of his authority. He was a king's minister and
+nothing more, and we can easily appreciate that the amount of power he
+was enabled to exercise could never exceed the amount of influence in
+local affairs possessed at any particular time by the central
+government, whose representative he was.
+
+But the very nature of the source from which the power of his office
+is derived is what connects it vitally with the subject of our
+enquiry. We have seen the _dux_ as head--in the earliest times almost
+independent head--of the whole _civitas_, including rural and city
+jurisdiction. We have seen him as an official, depending from the
+king, it is true, and holding the king's _placita_ and executing the
+law, but also holding _placita_ of his own; appearing as a powerful
+local lord, and exercising almost arbitrary power in the regulation
+and the distribution of the public property of the commonwealth over
+which he ruled; in fact, a descendant of the old _duces_ of the
+Lombard barbarian host, who, perhaps, even antedating the royal
+office, held their power and their position as princes and chosen
+leaders of the people, rather than as appointees or dependents of any
+higher authority. In the gastald, on the other hand, we have an
+official of an entirely different type--one not belonging to a
+powerful class of lords or leaders which traces its origin to the
+spontaneous choice of the people or army, but one who gets his
+appointment at the will and in the interests of the central
+government, and is commissioned to exercise certain functions of the
+administration as an assistant to, perhaps even as a check on, the
+power of the local head.
+
+Such an official was naturally located at the place where the district
+courts held their sessions, and where the fiscal duties which he
+especially had in charge were most easily executed. As we have seen in
+the case of the _dux_, convenience points to the _urbs_ of each
+_civitas_ as a natural centre, and consequently here again we find the
+office of gastald as another agent in bringing the municipal division
+into prominence; but doing this, we must always remember, simply from
+the fact of convenience or fitness, and not in any sense as a matter
+of constitutional necessity. Like that of the _dux_, the jurisdiction
+of the gastald was exercised over the remotest farm of the _civitas_
+as much as over the palace in the city: _de jure_, the city gained
+nothing by the circumstance of its being the centre of the
+administration of any office; but, _de facto_, the holding of such a
+position can easily be seen to have been an important element in its
+growth and development.
+
+This fact is even of greater importance in the case of the gastald
+than in that of the _dux_, because, on account of the elimination of
+the character of local ruler, which was indissolubly attached to the
+office of the latter, the gastald brought local affairs into direct
+relation with other parts of the social system of the kingdom,
+especially connecting them with the king or centre of the whole. Such
+a connection, as may be inferred from what has just been said, while
+legally true, of course, of the whole _civitas_, had practically the
+effect of bringing the cities chiefly into relation with the rest of
+the Lombard constitution; and, consequently, some writers point to the
+office of gastald as the connecting link between municipal life and
+the new state life of the Teutonic system. This statement seems to me
+to be true except in so far as it makes the gastald the only
+connecting link. For we have already seen the _dux_ holding the same
+relation, only in a less direct manner, owing to the intrusion of
+other interests belonging to his position; and we shall shortly have
+to consider the _scabinus_, another local officer, who, under
+Carlovingian rule, accomplished even more in this direction than the
+gastald. I do not wish to fail in appreciation of the important
+influence of this office in the development of the slowly growing idea
+of individuality in the cities of Lombardy, only to point out that it
+was not the only "connecting link" between the municipal units and the
+state as a whole.
+
+In passing to a brief characterization of a few of the subordinate
+officers, I must not omit to mention the fact that the gastald had
+also certain military functions attached to his office. When called
+upon by the king he took command in the army, together with the minor
+officers who were under him in his jurisdiction, such as the
+_sculdahis, saltarius_,[44] etc. We have confirmation of this in the
+constitution "promotionis exercitus" of Lewis II.,[45] which says "ut
+nullum ab expeditione aut Comes aut Gastald, vel Ministri eorum
+excusatum habeant"; and in the life of Gregory II., Anastasius
+Bibliotecharius[46] tells that at the overthrow of the _castrum_ of
+Cumae with the help of that pope, "Langobardos pene trecentos cum
+eorum Gastaldione interfecerunt." In military affairs the command held
+by the gastald seems to have been lower than that of the _dux_, the
+leader of all the troops furnished by the _civitas_. A right of appeal
+to the _dux_ existed for the _exercitalis_ who was oppressed by the
+gastald, as shown by the twenty-fourth law of Rhotaris,[47] which
+says: "Si Gastaldius exercitalem suum contra rationem molestaverit,
+_Dux_ eum soletur." In a case of oppression by the _dux_, the gastald,
+on the other hand, could bring the matter before the king.
+
+Before considering the changes introduced by the Carlovingian rule,
+let us cast a hasty glance at a few of the minor officers who acted as
+subordinates of the _judex_ in administering the affairs of the
+_civitas_. As their relations to the urban portion of the Lombard
+kingdom, which is the special object of our study, were either slight
+in themselves or else so closely connected with those of their
+superiors as not to merit any particular description, I will merely
+mention the names of a few of them and indicate their duties. The
+officer who came next in rank to the _judex_, and who, in a
+subordinate capacity, assisted him especially in administering the
+judicial affairs of the _civitas_, was in Lombard times called the
+_sculdahis_, and in Carlovingian times the _centenarius_. Under him
+were the _saltarius_ and the _decanus_. The _sculdahis_ acted as a
+local officer under the _judex_, having limited judicial, police and
+military powers. His jurisdiction was confined to the small fortified
+towns and villages of the _civitas_, where he administered justice and
+collected fines, forfeitures, etc., in much the same manner as did the
+_judex_ in the largest town of the _civitas_; his judgments, however,
+were not final, but always subject to appeal to a higher authority:
+"Si vero talis causa fuerit, quod ipse Sculdahis minime deliberare
+possit, dirigat ambas partes ad judicem suum."[48] There were several
+_sculdahis_ in one _judiciaria_, and cases were often tried before
+more than one,[49] though each of the smaller local units seems to
+have had such an officer. Paulus Diaconus[50] speaks of "elector loci
+illius, quem sculdahis lingua propria dicunt, vir nobilis," etc.
+
+These rural divisions seem sometimes to have been called _sculdascia_,
+for we have a diploma of Berengar I., of the year 918, given to the
+monastery of Sta. Maria dell' Organo,[51] where is mentioned "pratum
+juris imperii nostri pertinens de Comitatu Veronensi, de Sculdascia
+videlicet, que Fluvium dicitur"; and in a document published by
+Ughelli,[52] in speaking of the bishops of Belluno, "Sculdascia
+Belluni" is used. In Frankish times the _centenarius_ held the same
+position as the _sculdahis_ of the Lombards: his jurisdiction was
+similarly limited to minor offences; all cases involving capital
+punishment, loss of liberty, or delivering of _res mancipii_, being
+handed over to the count's court according to the legislation of
+Charlemagne.[53] The _decani_ and _saltarii_ were subordinates of the
+_centenarii_ and _sculdahis_. They both presided over smaller local
+divisions than the _sculdascia_, and acted as deputies. In the laws of
+Liutprand,[54] speaking of a runaway slave, we are told that "si in
+alia judiciaria inventus fuerit, tunc decanus aut saltarius, qui in
+loco ordinatus fuerit, comprehendere eum debeat et ad sculdahis suum
+perducat, et ipse sculdahis judici suo consignet." The _saltarius_
+seems to have been originally a sort of guardian of forests, "custos
+saltuum"[55] or "silvanus";[56] and the name of the _decanus_, like
+the Frankish _centenarius_, is a survival of the old decimal division
+of the army and people. These minor officers, as well as other
+subalterns of the _judex_, are often met with under the common name of
+_actionarii_, which includes also the different sorts of _exactores_,
+_adores_, _advocati_, and all the lesser officials of the _fiscus_.
+
+In the course of this investigation I have already referred to, and in
+a certain measure characterized, the changes introduced into the
+Lombard system of government consequent on the kingdom being absorbed
+into the great empire of Charlemagne. I have said that, owing to the
+similarity of institutions between the Franks and the Lombards, the
+changes made consisted rather in differences in the manner of
+enforcing the control of the central power than in any alteration in
+the institutional life of the people, but that there were certain
+exceptions to this general rule, which, in their mode of operation,
+though not in the intention of their author, materially affected,
+indeed greatly accelerated, the growth of individual life among the
+cities. We must now consider the nature of these exceptions.
+
+Under the Lombard system we have seen the administrative unit of the
+state to be the _civitas_, with its administrative head, the _dux_, at
+different times enjoying a greater or less degree of independence from
+control of the central power. We have seen the _dux_ lord as well as
+judge in his own jurisdiction, and standing as the successor of the
+military leader chosen by the people, instead of holding the position
+of king's servant; this place being more properly filled by the
+gastald, who cared for the fiscal interests of the central power,
+whose appointee he was. Such a form of government, it can be readily
+seen, left no room for any strong development of the principle of
+centralization, and no scope for the exercise of any decided power or
+even of general supervision by the central authority. The heads of the
+_civitates_ were the king's _judices_, it is true, and assembled to
+assist him in judgments at his general _placita_ in the March of each
+year; but they bear the character also of local lords of no mean
+importance, and in some cases possessed of no inconsiderable amount of
+power. Such a degree of individual influence--perhaps I should
+exaggerate if I called it individual independence--was, however,
+little suited to the idea of a universal centralized empire, which was
+the forming principle of the government of Charlemagne. While
+recognizing the necessity of retaining the fundamental institution of
+a division of the state into _civitates_, and of governing it by means
+of the heads of these divisions, he wished to eliminate from these
+officers all the characteristics of local magnates, and to reduce them
+to the more easily controlled position of servants, and dependents of
+the king. This object he accomplished most satisfactorily by changing
+the dukes or local lords into counts or king's men, by appointing a
+Count of the Palace for Italy, and by extending to that kingdom the
+perfectly organized system of central control by means of the _Missi
+Dominici_, with the workings of which in the other parts of his great
+empire the student of history is too well acquainted to need any
+description here.
+
+The immediate changes in the life of the people consequent on the
+introduction of this system were not considerable, if we except a
+great improvement in public order and a marked advance in the
+equitable administration of justice; but it needs no great foresight
+to see that the ultimate effects on the position held by the municipal
+units in the community could not fail to be important and
+far-reaching. The new officer, the count, stripped of all the
+importance that his predecessor, the duke, had enjoyed as lord of the
+country over which he ruled, was placed in each city to govern, in the
+king's name, it and its _territorium_. As long as the empire of
+Charlemagne retained its integrity, and as long as the reins of
+central government were held by a strong hand and the control it
+exercised was felt to be positive and real, the change in the
+character of the local governor was of little moment; but as soon as
+the power of the central government weakened--during the inglorious
+reigns of the immediate successors of the great emperor--its hold on
+the administration of the local units slackened immediately; and in
+proportion as the vitality of the new central control diminishes, we
+see appearing the effects which must always result when the strong
+hand of an active central power is removed from a system of
+administration which had been based on the exercise of such a power.
+These effects are the increased importance--I may now say the
+increased independence--of the local units; of these local units
+themselves as distinguished from the heads who rule over them.
+
+The change had made these units more organic parts of the state than
+they had ever been before: we have seen them first made prominent by
+being the seats of the rulers of the _civitas_, and now we are to see
+them gain a more significant advance by coming into relation with the
+head of the state directly, instead of through the personal power of
+their lord. For the local ruler has yielded his individual
+pre-eminence to the central government; and when this fails to
+maintain its authority, in any community whose inhabitants are capable
+of fostering the seeds of independence once sown, it is difficult if
+not impossible for a successor to repossess himself of the privileges
+which have been forfeited. In any state where the seat of central
+authority is distant or its power only exercised feebly and at
+intervals, the local units secure much greater independence and
+importance, through the very necessity of performing many functions
+left unheeded by the ruler of all; and if the people are self-reliant
+in character, they will in time develop a sort of self-government
+which, although it would not at first think of questioning the
+theoretical right and overlordship of the central power, will
+eventually brook but little interference with its modes of procedure
+and with its exercise of functions, which the lapse of time has
+transformed from enforced duties into jealously guarded privileges.
+
+This is the keynote of the later history of the Italian cities. This
+it was, and not any real lack of patriotism, which made them choose a
+German emperor instead of an Italian king. There was no room at that
+time for the idea of Italian unity, as we now understand it: the
+nature of the people alone would have rendered such a thing
+impossible, even if we leave out of account the fact that Italy was
+the meeting-ground of the two great powers of the mediaeval world, the
+Pope and the Emperor. Italy then must have had two masters, or have
+been the slave of one. The same spirit of civic independence which
+caused the development of Ancient Greece by preventing the universal
+rule of one power, caused the Italians, under different conditions, to
+pit one master against another to attain the same end. Even Liutprand,
+the old historian of the tenth century, recognized this. In the first
+book of his "Historia" he says: "The Italians wish always to serve two
+masters, in order to restrain one by means of the terror with which
+the other inspires him."[57] By means of holding in their hands the
+balance of power they hoped to rule their rulers; and to attain this
+object was the only reason which ever prompted the cities to unite
+with any degree of harmony. Local independence was what they aimed at,
+and their shrewdness showed them the only possible means in that age
+of securing it.
+
+These results could hardly have been attained if society had remained
+such that the prominence of the local divisions was dependent on the
+prominence of the respective heads of these divisions; but the
+character of their local rulers once changed, and their powers in a
+great measure absorbed by the act of a strong central power, when that
+power fell to pieces it was much easier for the local divisions, as
+such, to increase their independence, and to utilize the advance they
+had made, by means of their more direct relation to the central power,
+to gain a position which they would enjoy in spite of the efforts
+alike of that power and of their old rulers. Such a position would not
+be reached except by means of great struggles and by passing through a
+period of great disintegration and of fierce internal strife between
+opposing factions, such as in the history of the Italian communes is
+represented by the dark period between the fall of the last of the
+Carlovingians and the election of the first German emperor as king of
+Italy; but once attained, the character of the people who accomplished
+it would ensure its permanence, as long as they retained those
+principles of independence which had made them victorious in the
+struggle. After this short discussion, in which we have traced the
+ultimate effects of the action of Charlemagne in changing the dukes
+into counts, let us look at another feature in the field of city
+government introduced by him, the new office of the _scabinus_ or city
+judge.
+
+According to the theory of judicial procedure among the Teutonic
+nations, judgment in criminal cases was given in the open court or
+_placitum_, where, besides the regular judges, all or any of the
+freemen within its jurisdiction were supposed to concur in the
+judgment and sentence. How far this method of arriving at judicial
+decisions was carried out in practice depended largely on custom and
+other local influences, and consequently varied greatly in different
+countries and with different nations. I do not propose to enter into
+the discussion[58] of the existence of these "judicators"[59] in
+Lombardy in the eighth century, but will only say that it is certain
+that before the Frankish conquest there did not exist a class of men
+whose business it was to assist the judge in disposing of cases. If
+through ignorance of the law or for other reasons he was unable to
+come to a decision, "si vero talis causa fuit, quod ipse ...
+deliberare minime possit,"[60] he could call some of the freemen to
+assist him: "advocis [advocet] alios ... qui sciunt judicare,"[61]
+etc., but this seems, in later times at any rate, to have been a
+privilege to be used at discretion, and the persons summoned were not
+regularly appointed officers of the court. The Lombard codes are
+silent with regard to these indicators; but Savigny,[62] in his
+argument to prove their existence, claims that mention is made of them
+in two decisions of Liutprand of the years 715 and 716, and brings as
+additional evidence a _placitum_ of 751[63] in which Lupo, duke of
+Spoleto, gives judgment "una cum judicibus nostris ... vel aliis
+pluribus astantibus," etc. It is of more importance for us, however,
+to determine the reasons for the introduction into Italy by
+Charlemagne of the new office of the _scabinus_, than to lose
+ourselves in a complicated discussion of the theoretical predecessors
+of these officers.
+
+The introduction of this new feature into city government seems to
+have been the result of an attempt to correct certain abuses in the
+exercise of power by the duke or head of the courts of the _civitas_.
+The duke had the right, as we know, to summon all the freemen in his
+jurisdiction to his _placita_, and to fine them according to the law
+if they failed to answer his summons. The fines collected in this
+manner formed a substantial part of the revenues of the _judex_
+imposing them, and consequently arose the abuse, which seems to have
+been a great cause of complaint in the eighth century, that the
+freemen were summoned to attend _placita_ at frequent intervals during
+the year, when there was no business of any importance to transact,
+and when the sole object of the summons was to furnish an excuse for
+imposing the fine. An attempt to remedy this injustice was made when
+the number of _placita_ which any one _judex_ could hold during the
+year was limited by law to three,[64] and the dates for these
+definitely determined. But the abuse does not seem to have been
+satisfactorily corrected till the time when Charlemagne formally
+substituted for the body of the freemen, who in theory were supposed
+to attend the _placita_ and assist in the judgments, a limited number
+of men who, as regularly constituted judges, either assisted the
+_judices_ or made judgments of their own, as the case might be. These
+officers were the _scabini_, whose position we are now investigating.
+
+All of the best authorities agree that no authentic allusion to the
+office in Italy is to be found prior to the establishment of Frankish
+rule. The word _scavinus_ or _scabinus_ sometimes occurs, but in every
+case the document containing it has been proved spurious on other
+grounds. For instance, Brunetti[65] publishes a donation of the bishop
+Speciosus of Florence, to the monastery of the cathedral, purporting
+to belong to the year 724, in which a certain "Alfuso scavino" is
+mentioned; but it has been proved that the monastery was only founded
+in the year 760, and though it may, at a later date, have received the
+donation, the significancy of the use of the term vanishes. The first
+authenticated use of the name of the new judge seems to be in a
+_placitum_ of Charlemagne of the year 781.[66] In this the parties to
+a suit are mentioned as having already appeared before the "Comitem et
+suos Escapinios." Eight years later, in a _Praeceptum_ of
+Charlemagne,[67] commission is given to the _comes_ Tentmann "superque
+vicarios et Scabinos, quos sub se habet, diligenter inquirat."
+
+Now that we have indicated the origin and noted the first appearance
+of the new officer, let us examine his position and his duties. I am
+much more willing to allow to the _scabinus_ the title of "city
+officer," than to the _dux_ or even the count. We have seen the latter
+as one of the important connecting links joining the city to the
+state, bringing the city into relationship with the constitution of
+the kingdom and making it a part of it; but we have been unwilling to
+call the count or _dux_ the _legal_ head of the city, as such, that is
+to allow him the title of the first city officer. But with the
+_scabinus_ the case is different. His mode of appointment, and the
+character of the functions he performed, ally him with the city proper
+and with city people. His duties and his interests were more confined
+to the city than those of any of the other judges, and when he
+accompanies the count to the general _placita_ of the king, he seems
+to go in the capacity of a representative of the city, and more in the
+character of a city magistrate than any officer we have yet
+considered. His duties were almost entirely of a judicial character,
+and his powers seem to have been as broad in their extent as those of
+the other judges. That he had the power of imposing capital
+punishment, and that the other officers of the law could not change
+but only execute his orders, appears from the following passage:[68]
+"postquam Scabini eum [latronem] adjudicaverint, non est licentia vel
+Vicarii ei vitam concedere." Muratori[69] maintains that he also had
+the right of holding certain _placita_ of his own, and cites in proof
+two _placita_ of Lucca of the years 847 and 856, where we find: "Dum
+nos in Dei nomine Ardo, Adelperto et Gherimundo Scabini adsedentes in
+lucho Civitate Lucana," etc.; and "dum resedisset Gisulfus Scabinus de
+Vico Laceses, per jussionem Bernardi Comiti ... ubi cum ipso aderat
+Ausprand et Audibert Scavinis." In the first of these there is no
+mention whatever of the count, and in the second "Gisulfus Scabinus"
+acts with his associate _scabini_ "per jussionem Comiti." But even if
+we allow to the _scabini_ the right of holding _placita_, these must
+have been of a lower grade than those of the counts or of the _missi
+regii_; for to the _mallum_ of the latter an appeal was allowed from
+the judgment of the _scabini_, as we see from the law of
+Charlemagne,[70] which says that: "Si quis caussam judicatam repetere
+in mallo praesumserit ... a Scabinis, qui caussam ipsam prius
+judicaverint, accipiat." Generally speaking, however, it seems
+probable that their jurisdiction included all cases arising within the
+city limits, which could be dealt with in the regular _placita_ of the
+counts, and which were not of sufficient importance to be referred to
+the king in person, his representative the Count of the Palace, or his
+delegates the _missi regii_.
+
+When the count went up to the general yearly _placitum_ of the king,
+as the representative of the _civitas_, according to the laws of
+Charlemagne he was to be accompanied by a certain number of the
+_scabini_; and these seem to have accompanied him not solely in the
+character of legal advisers, but also in a certain measure as
+representatives of the cities in which lay their jurisdiction: they
+are by no means what the exaggeration of Sismondi[71] calls "des
+magistrats populaires ... qui representaient la bourgeoisie"; but they
+certainly stood for the interests of the people, in a greater degree
+than any of the ruling powers we have as yet considered. Their number
+is variously stated in the laws of different kings, and their actual
+number seems seldom to have come up to the standard of legal
+requirement. Lewis the Pious requires twelve to accompany each count
+when summoned by the emperor: "veniat unusquisque Comes et adducat
+secum duodecim Scabinos";[72] but concedes that if so many could not
+be found in the city, their number should be filled out from the best
+citizens of the town: "de melioribus hominibus illius civitatis
+suppleat numerum duodenarium."[73] According to Charlemagne,[74] no
+one should come with the count to a king's _placitum_ unless he had a
+case to present, "qui causam suam quaerit, exceptis scabinis septem,
+qui ad omnia Placita esse debent." And again: "Ut nullus ad placitum
+banniatur ... exceptis scabineis septem, qui ad omnia Placita praeesse
+debent";[75] and seven seems to have been the usual number expected,
+and their attendance was compulsory; though sometimes only two appear,
+and in a few cases none at all.
+
+Of all matters relating to this office, the one which is of most
+interest to us, and the one which most clearly shows the difference
+which was designed to exist between it and that of the other judges,
+was the manner in which the office was obtained. In this procedure we
+can trace almost distinctly that the object of the central power which
+established it was to secure greater justice and greater freedom to
+the subjects who came under its jurisdiction. The fact was recognized
+by the new government that the power of the local heads was too great
+to suit the principle of universal central control, which was the
+keynote of Charlemagne's system of administration, and was exercised
+in too arbitrary a manner; and that some check was necessary to curb
+the spirit and limit the independence of these local lords of the soil
+and the city who had little consideration for their inferiors, and who
+might at any time become a source of danger to their superiors. Such a
+check was found, in regard to the central authority, in the _missi
+regii_, and in reference to the general public, in the _scabini_ or
+city judges.
+
+In the old Lombard constitution we have seen the gastald, chiefly,
+however, in the matter of judicial decisions, exercise a controlling
+influence on the arbitrary action of the duke; but as the power of the
+count varied from that of the duke, so that of the _scabinus_ differs
+from that of the gastald, only perhaps in a greater degree. At the
+time when the count assumes the place of his predecessor the duke, the
+_scabinus_ displaces the gastald, although he cannot be said to have
+assumed exactly the same position as the latter, nor to have filled it
+in precisely the same way. The _scabinus_ did not have, of course, any
+direct limiting control over the actions of the count; for any such
+power in the hands of a body of lesser officers would have been alike
+contrary to the spirit of feudalism which characterized the age, and
+impossible to its forms; but being the principal judicial
+functionaries of the district, into their hands fell most of the cases
+which formerly went to the _placita_ of the count; and while the wish
+of the great emperor, that even the meanest subject of the realm
+should receive impartial justice at their hands, might have failed in
+its effect, its fulfilment was made more sure by the method prescribed
+for the election of the officers whose duty it was to execute it.[76]
+
+In describing the method by which the _scabini_ gained their office, I
+am in some doubt as to the proper terms to be employed. I have just
+made use of the word "election," but cannot let it stand without some
+qualification. It was not an election in the strict sense of the word
+as we now understand it, but it was as near an approach to a popular
+choice as was possible in the age in which it existed. The citizens of
+a municipality did not nominate and elect by their votes a popular
+magistrate, as some writers would have us believe; for such a
+proceeding would have been an anomaly in the eighth century under the
+rule of a Frankish emperor. But the people had a voice, and from the
+frequent mention of their intervention it would seem an important
+voice, in the selection of those who were to be their judges, and who
+were to assist in representing them in the royal assembly. The
+original appointments were made by some higher power, in most cases
+the _missi regii_, the direct representatives of the king; but these
+were made not arbitrarily, but always "cum totius populi consensu."
+This was the important point; it was so far a popular office that the
+free consent of the people was always necessary to make valid the
+appointment of any incumbent. According to the ideas and customs of
+the eighth century, such a method of procedure would represent a
+fairly popular election; for we know well that in the times of the
+greatest freedom, the Teutonic idea of a popular vote never went
+beyond the mere expression of assent or dissent by the assembled
+freemen. The initiative was always left to the king or chief who
+conducted the meeting, just as much as it was in the ancient assembly
+held on the classic plains of Troy. In a capitulary[77] of Charlemagne
+of the year 809 it is decreed: "ut Scabini boni et veraces cum Comite
+et populo elegantur et constituantur": and more specific directions
+are given by Lothar I. in the year 873, in case of a _scabinus_ found
+to be an unjust judge. He says:[78] "ut Missi Nostri ubicumque malos
+scabinos invenerint ejiciant, et totius populi consensu in loco eorum
+bonos eligant." From this latter example we see that the _missi_ had
+the power of dismissal "for cause," as well as of nomination. In fact,
+the king and his ministers, in the interests of impartial justice,
+kept constant watch on the acts and judgments of the _scabini_, and a
+law of Lothar I. tells us that "quicumque de Scabinis deprehensus
+fuerit propter munera, aut propter amicitam injuste judicare" should
+be sent up to the king to render an account of the manner in which he
+had fulfilled the duties of his office.
+
+Such then were the duties, the privileges and the restrictions of the
+first magistrate to whom we could venture to ascribe any of the
+attributes of a popular judge: a representative of the people at the
+assembly of their ruler; a judge of their suits and of their misdoings
+at home, and a check on the arbitrary power of their lord and feudal
+superior,--we can readily appreciate that the existence of such an
+officer within the city must have exercised some influence in giving
+to its inhabitants a greater sense of security, and consequently of
+importance, even if we cannot claim that in the earliest stages of
+municipal development it gave birth to any definite ideas of personal
+freedom or of municipal independence. But it can easily be seen that
+it formed another and an important factor in that idea whose progress
+we wish to trace, of a slowly growing feeling of individuality in the
+city as such, the municipal unit as conceived apart from the still
+legally recognized unit, the entire _civitas_. We have seen the count
+the representative of this idea as far as its actual connection with
+the constitution of the state was concerned, but it was the _scabinus_
+who was to represent it to the consciousness of the people, and to
+assist them in rediscovering the lost conception of a municipal unity.
+
+It would be incomplete to conclude this account of the various
+officers of government, without some mention of the position held by
+the bishops at this period. As it has been our duty throughout this
+paper to study the municipalities of Italy as only preparing to assume
+a position of individuality eventually leading to independence, so it
+is with regard to the bishops. While their social influence, as
+pointed out in the first part of this paper, was always notable, their
+political power, which formed one of the important steps in the
+progress of the communes towards a separate existence, has its birth
+at a time which is beyond the limits of this investigation. Not until
+the overthrow of the Carlovingian dynasty left Italy the prey of
+contending factions, and the crown passing quickly from hand to hand
+made each applicant anxious to gain the support of the more prominent
+electors, did the bishops obtain that legally constituted political
+power which, by breaking up and in many cases destroying the rule of
+the counts and great nobles in the cities, was the means of bridging
+over the wide gulf which lay between the idea of a district under the
+almost absolute rule of a great lord, and a civic autonomy governed by
+its own independent citizens. Even, however, if we are not yet to
+portray the bishop in a position of high political importance, we may
+briefly consider his social power and influence, and, as we have done
+with the cities themselves, indicate the steps by which he was enabled
+ultimately to gain such an exalted position.
+
+The relations of the bishop to the inhabitants of the cities during
+the period we are considering were pretty nearly such as described in
+the first part of this paper. He stood forth as protector of the weak
+and the oppressed; as mediator between an unfortunate prisoner and an
+unjust judge who was seeking his private interest rather than
+following the spirit of impartial justice; or between a downtrodden
+vassal and the almost unlimited power of his feudal superior. He
+lessened the severity of harsh judgments, he protested the imposition
+of unjust fines and penalties. In very many cases he was even
+appointed by the king or his representatives as co-judge to assist the
+_judex_ or the _missus_ in hearing cases where oppression or injustice
+was to be feared. But it is important for us to avoid confusing this
+kind of jurisdiction with that which he enjoyed in the century after
+he had attained the power and the office of count, and had combined
+the religious functions of head of the diocese with the secular ones
+of political ruler of the city. Any judicial authority possessed by
+the bishop at this earlier period was not in virtue of any political
+position he himself held, but came to him entirely in what might be
+called an extraordinary manner, that is, by delegation from the king,
+for definite specified occasions. As an example of this extraordinary
+delegated jurisdiction, I will refer to a document in the Archivio of
+the Canons of Arezzo[79] of the year 833, relating to the judgment of
+a dispute between "Petrum Episcopum Arretinum et Vigilium Abatem
+Monasterii Sancti Antemi," situated in the territory of Chiusi, over a
+privilege ceded to that monastery by Lewis the Pious in 813.[80] The
+bishop of Arezzo gained a favorable decision from a court constituted
+of some _judices_, _missi_ of the emperor, and of the bishops of
+Florence, Volterra and Siena, Agiprandus, Petrus and Anastasius.
+According to the terms of the document with regard to the composition
+of this court, the bishops sitting in it were "directi a Hlotario
+magno Imperatore"; and their powers are several times referred to as
+being "juxta jussionem et Indiculum Domni Imperatoris." Here, as in
+all other similar cases, we see plainly that there is no indication of
+any purely personal jurisdiction.
+
+That the influence of the bishop in affairs of state at this period
+was only of an individual, extra-official character can be seen also
+from the fact that the king considered the bishops themselves to be
+under his judicial jurisdiction in all secular matters, just as the
+lesser clergy came under the jurisdiction of the _judices_:[81] and
+further, that after the election to a church, the decision of the
+_judex_ must confirm the choice of the community in order to render it
+valid.[82] All disputes also between bishops and their clergy, between
+members of the body of clergy, and between these and members of the
+laity, were settled by the royal authority;[83] and what is most
+significant, there was a universal and freely used right of appeal for
+the clergy or laity from the decision of a bishop to the person of the
+king, who seems to have exhibited no hesitation in modifying or
+reversing sentences, even in matters relating to purely clerical
+discipline.[84]
+
+Even in the time of the Franks, when the consideration shown to the
+church and its representatives was much greater than under any of the
+Lombard kings, we find Charlemagne,[85] on suspicion of infidelity to
+his government, having sent to him and retaining as prisoners the
+bishops "Civitatis Pisanae seu Lencanae" and Pottoni, Abbot of the
+monastery of Volturno; and Lewis the Pious[86] sends into exile
+"Ermoldo Nigello Abatis," and in the year 818 several other bishops,
+including Anselmus "Mediolanensis Archiepiscopus," "Wolfoldus
+Cremonensis" and "Theodolphus Amelianensis."[87] None of these
+restrictions and limitations, however, although they arose chiefly
+from the strong opposition always existing between the local temporal
+rulers of the people and their spiritual rulers, could hinder the
+bishops from occupying that important position of mediators and of
+protectors of the people which we have ascribed to them.
+
+Turning now to a consideration of the earliest steps which may be said
+to have cleared the way for the political power of the bishops, we are
+met by a subject which, though of great interest in itself, is not
+sufficiently a part of this investigation for us to do more than
+indicate the lines of its progress. This subject is the development of
+the practice of giving certain immunities and privileges to churches
+and monasteries, adopted by the Frankish kings, faithful sons of the
+church, and then followed by all their royal and imperial successors.
+In considering the important influence exercised by these immunities
+on the development of the espiscopal power and the effects of this on
+the growth of the communes, there are two essential facts which we
+must always keep prominently in mind. In the first place we must
+remember that the granting of immunities was a question of privilege
+to particular individuals or ecclesiastical institutions, and not a
+universal grant which affected in an equal degree all the dioceses of
+the realm. This led to the marked differences in rank and importance
+which existed between the various bishoprics, and in the tenth
+century, when the temporal power became in many cases an adjunct to
+the spiritual, caused some bishops to become powerful temporal
+princes, while others, unable to gain this pre-eminence, remained
+simply spiritual heads of their respective dioceses. So in the contest
+between the counts and the bishops we find the latter only victorious
+in certain cases, and consequently having only certain of the cities
+under their jurisdiction; a fact which is illustrated as late as the
+Peace of Constance, where in the ninth article the cities are still
+divided into episcopal and non-episcopal cities.[88] In the second
+place we must keep clearly before us an important fact, the truth of
+which any chronological account of the development of the principle of
+immunity would easily demonstrate, namely, that with the advance of
+time and with the growth of that principle, the changes which took
+place in the different sorts of immunities were not simply those of
+degree, but essentially and principally those of _kind_.
+
+A descendant of Charlemagne may have granted to some monastery or
+bishopric a greater alleviation of some of the fiscal burdens borne by
+it under his immediate predecessor, but a successor of Berenger when
+he granted a _privilegium_ did not simply perform the negative benefit
+of alleviating burdens; he endowed the head of the bishopric--probably
+in return for some service he had received at his hands or expected to
+receive--with the positive benefit of the political headship and
+possession of some city or district of a former count. I mean by this
+that the earlier immunities--and in these are included all given
+during the period we are discussing--were all of them what are termed
+simple or ordinary immunities; that is, those which deal with
+exemption--whether from burdens for which the receivers would
+otherwise be liable, or from jurisdiction to which they would
+otherwise have been subjected--of what may properly be called the
+private possessions of the churches concerned. They had nothing to do
+with the privileges of a later time, by which a power to exact burdens
+was granted and a positive jurisdiction over others allowed: that is,
+public functions bestowed rather than private rights conceded.
+
+That a distinction of such a character was a difference of kind and
+not of degree is so plainly apparent that it is unnecessary to dwell
+longer upon it, and it only remains for us to consider briefly the
+chronology of some of the changes that took place. If we adhere
+strictly to the proper signification of the terms used, the
+development can be somewhat succinctly described by the simple
+enumeration of the three characteristic features of its progress, viz.
+_protection, exemption, privilege_ that is jurisdiction or temporal
+power; and the three periods which are covered respectively by the
+prominence of these ideas can be roughly stated to be: for the first,
+the reigns of Charlemagne and his successors down to the time of
+Charles the Bald--including any indication of this idea which we may
+find during the reigns of the last rulers of the first Lombard
+kingdom; for the second, the reigns of Charles the Bald, Karloman, and
+Charles the Fat; and for the third, the full development of the
+episcopal power in the tenth century, down to the period of its final
+decline, and the rise of actual municipal government within the
+communes.
+
+It is doubtful whether immunities of any importance were granted even
+by the latest kings of the Lombards, before the invasion of the
+Franks. Under the first Lombard monarchy the church held a very
+subordinate position with regard to the state, and if privileges were
+granted to any of its members, they had attached to them no greater
+meaning than the simple extension to them of the _mundibrium_ of the
+king, such as was often allowed to private individuals; that is, they
+were simply grants of royal protection, and were not similar to the
+later grants which included both protection and privilege.[89]
+
+With the advent of Frankish rule under Charlemagne, marked
+consideration immediately appears for the church and its
+representatives. Not alone is ample protection granted to many of the
+churches of the kingdom, but to it is added the important function of
+exemption. The greatest evil endured in those days by the
+ecclesiastical authorities was exactions levied on their property and
+oppression exercised on their dependents by the dukes and counts under
+whose jurisdiction lay the temporal possessions of the churches and
+monasteries. Consequently the aim of every bishop and of every abbot
+was to obtain for the possessions of his diocese or his convent an
+exemption more or less complete from the civil administration of the
+neighboring secular ruler. For a long time there was no thought in the
+mind of the bishop of gaining for himself the functions of temporal
+jurisdiction, but simply that the power of the count should be
+restrained with regard to church property, that is, that he should not
+be able to exercise his judicial control over lands belonging to the
+church, except by the express permission, "per licentia data," and
+with the concurrence of the bishop himself. This and nothing more is
+what is meant by all of the charters of exemption granted by the
+Carlovingian rulers, down to the time of Charles the Bald, when, as we
+shall presently see, a change was introduced.
+
+It would be useless for me to cite examples of such charters, for
+their number is countless, and reference may be made to any of the
+great collections of mediaeval documents for confirmation of what has
+just been said; for during the reigns of the earlier Carlovingians,
+the strong reverence for the church and respect for its officers which
+characterized the Frankish nation from the beginning led to the
+extension of these privileges to much the greater number of the
+churches in the realm. Not all churches enjoyed such grants, and not
+all those accorded were of the same liberal character, but the number
+given and the amount of liberty to the church thereby bestowed was
+sufficient to give to the clergy that degree of importance which
+ultimately culminated in making them the great lords that we find them
+in the tenth century. To give an idea of the tenor of these documents,
+I will, however, quote a few lines from the earliest one that has come
+under my notice in Carlovingian times, namely a diploma of the year
+782, issued to Geminiano II., bishop of Modena, and preserved in the
+archives of that city. Here we find that: "Nullus judex publicus ad
+causas audiendum, vel freda exigendum, seu mansiones aut paratas
+faciendum, nec fidejussiones tollendum neque hominibus ipsius
+episcopatus distringendum," etc. This is sufficient to show the
+character of exemption from secular jurisdiction.[90]
+
+The next forward step in the advance of the bishops to temporal power
+was made probably about the time of Charles the Bald; though under his
+two immediate predecessors, Lothaire[91] and Lewis II.,[92] we already
+see indications of an extension of the quality of exemption to include
+freedom from the payment of all public dues and the bearing of all
+public burdens.[93] It was precisely the introduction of this element
+of exemption from public burdens which marked the change in the nature
+of the immunities granted from the time of Charles the Bald, down to
+the period when the element of jurisdiction and real temporal power
+was introduced under Guido and Berenger. Up to this time, the grounds
+on which similar charters had been sought had been protection from the
+oppression of the counts, and had resulted, as we have seen, in the
+granting of simple charters of protection which were of no very great
+significance. But now it is exemption from public burdens, etc., that
+is made prominent, in addition to a complete severance from all
+jurisdiction and control of the secular power of the _civitas_ in
+which the bishop's see and domains are situated. That this concession
+also was sought by the bishop on the plea of protection for his
+dependents from oppression and exaction, does not diminish its
+importance; for it is easy to see that the line which separates
+recognized right of protection from recognized right of jurisdiction
+is one easily effaced, and defense from the tyranny of a foreign power
+can with little difficulty be transformed into domination by the
+professed defender.
+
+That this was the order of development consequent on these changes is
+proved by the temporal dominion gained by the bishops in the next
+century; and the steps of its growth marked by numerous immunities
+granted by Charles the Bald, Karloman[94] his successor, and Charles
+the Fat, the last of the Carlovingians in Italy. As a good example of
+the complete development of this advance gained by the bishops, I will
+mention a charter given by Charles the Fat to John, bishop of Arezzo,
+in the year 879, in which he confirms to him all the property and the
+rights of that see, and takes him under his protection, "sub
+immunitatis suae defensione": he then goes on to explain what this
+term meant, giving a full account of the extent to which a bishop's
+property was exempted from the jurisdiction of the _judex publicus_,
+and protected from the imposition of burdens and exactions.[95]
+
+The next step in the growth of the episcopal power, and the most
+important of all, is the progress from exemption to privilege, to
+jurisdiction; and occurs after the return of the kingship of Italy to
+the hands of native kings.[96] It means the full development of the
+bishop into the temporal ruler, and as such belongs properly to the
+history of the tenth century, and consequently is beyond the limits of
+the present paper.
+
+We have now considered individually and separately, in the course of
+their development, the different elements which, when combined and
+modified by the various changes described, contributed to form the
+solid foundation upon which the fabric of the future independent life
+of the cities was to be built. We have been dealing exclusively with
+institutions, and the manner in which their growth has been
+accomplished. For it is in the institutional life of a people, and in
+the change and development it undergoes, that are to be found those
+elements which form the basis for all future changes, whether simply
+in the form of its government or in the structure of its social
+system. If once a clear picture is gained of the structural parts
+which form the institutional framework of any particular development,
+and a truthful presentation of these forming principles is proved and
+established, a detailed account of the material expression of them is
+a matter of secondary importance.
+
+I have not, in this paper, attempted to describe the actual condition
+of any particular municipality, or even presented a picture which
+could represent the material existence of the cities as a whole. Such
+a picture would only be a necessary part of a study of institutions
+when the city itself was the unit to be investigated, and not of one
+whose chief object is to prove that the city as such had no
+constitutional existence, but simply formed a part of another
+institutional unit. When we reach a period in which the city stands
+out as an object of study in itself, and when we do not have to trace
+its history only by learning that of other institutions which included
+and overshadowed it, then the practical life of the people within its
+walls becomes of the greatest importance, even to the smallest detail
+of civic law or city custom; and then, and not till then, begins what
+could properly be called a study of municipal institutions.
+
+During the three centuries that we have been investigating, the study
+of the Italian municipalities has been, as we have seen, but the study
+of other institutions of which the municipality formed only a part. No
+attempt has been made to do more than prove the origin and trace the
+earliest development of those principles, which in their maturity were
+to gain for the municipal unit that position where the study of its
+own structure would become an object of interest, entirely apart and
+distinct from any of its surroundings. It has been shown that the city
+did not inherit any such position from its immediate predecessor the
+Roman _municipium_, which we have learnt to consider as overthrown,
+from a constitutional standpoint as annihilated; but that the new
+principle introduced into state life by the northern conquerors of
+Italy, the principle of administration by county rather than by urban
+divisions, relegated the city to an inferior place as part of a rural
+holding, instead of leaving it the centre of a circle of rural
+dependencies. Having demonstrated the absence of all constitutional
+recognition of the municipal unit as such, I have attempted to show
+how a condition of such legal insignificance became generally a
+condition of actual importance; how from a position of such negative
+interest, the advance of the city was commenced along a road which was
+ultimately to restore it its old pre-eminence, even adding to this in
+time the almost forgotten attribute of sovereignty. The motives for
+this advance we have seen to be no higher ones than convenience and
+expediency, which made the _urbs_ of every _civitas_ the natural
+centre of its local administration, thereby in fact, if in no way by
+law, restoring to it some of the elements of individuality, if not of
+pre-eminence, which it had lost. The means employed we have seen to be
+the functions of the various officers of state: the _dux_, the count
+and the gastald, who connected the city with the state, and the
+_scabinus_ and the bishop, who represented this connection to the
+consciousness of the people. We have noted the marked effects produced
+on the development of a more popular feeling, by the changes
+introduced by the great emperor of the Franks; which, by diminishing
+the power of the local lords, accomplished a double benefit; on the
+one hand by saving the people from the arbitrary rule of a feudal
+superior; on the other, by causing the city to become more of a
+dependence and more of a support to the state as a whole. And finally
+we have left the city prepared, on the return of another dynasty of
+native kings, to accept, at least in a large number of cases, the
+domination of another kind of lord, a spiritual one; who was to serve
+as a medium for breaking up the power of the old lords of the
+_civitas_, and from whom it would be an easier task for the commune of
+the future to wrest the power and the sovereignty which was to make it
+a free and independent autonomy.
+
+       *       *       *       *       *
+
+AUTHORITIES REFERRED TO IN THE TEXT AND FOOT-NOTES.
+
+_Anastasius Bibliothecarius_: Vitae Romanorum Pontificum. v.
+_Muratori_: Script. Rer. Ital., Tom. III., Pars I.
+
+_Baluzii, Stephanus_: Capitular. Regum Francorum additae sunt
+_Marculfi_ Monachi et aliorum formulae veteres. Parisiis, 1780. 2
+vols. fol.
+
+_Bethmann-Hollweg_: Schrift über den Ursprung der lombardischen
+Städtefreiheit.
+
+_Bouquet, Martin_: Recueil des historiens des Gaules et de la France,
+etc. Paris, 1738-1855. 21 vols. fol.
+
+_Brunetti_: Codice Diplomatico Toscano. Firenze, 1806.
+
+_Canciani, Paolo_: Barbarorum Leges Antiquae, etc. Venetiis,
+1781-1792. (Formulae Baluzii, Marcolfi & Mabillon.)
+
+_Chronica Farfensis_. v. _Muratori_: Script. Rer. Ital., Tom. II.,
+Pars II.
+
+_Eichhorn_: Deutsche Staats- und Rechtsgeschichte. Gött., 1803-23.
+
+_Fumagalli, Angelo_: Codice Diplomatico S. Ambrosiano. Milano, 1805.
+
+_Hegel, Carl_: Geschichte der Städteverfassung von Italien. Leipzig,
+1847.
+
+_Leo, Heinrich_: Verfassung der lombardischen Städte. 1820.
+
+_Liutprandus Ticinensis_: Opera, v. _Pertz_, Monum.; Script., Tom.
+III.
+
+_Lex Salica_. v. _Canciani_: Barbar. Leg. Antiq., Tom. V.
+
+_Lupo, Mario_: Codex Diplomaticus civitatis et ecclesiae Bergomatis,
+etc. Bergomi, 1784-1799. Vols. 2.
+
+_Mabillon_: De Re Diplomatica. Parisiis, 1709. (General
+Collection.)--Annales Ordinis S. Benedicti. Parisiis, 1703-39.
+
+_Macchiavelli, Nicolo_: Istorie Florentine, _v_. Delle Opere, Tom.
+II., ed. Milano, 1804.
+
+_Migne_: Patrologiae Cursus Completus, etc. Series Latina.
+
+_Muratori_: Scriptores Rerum Italicarum. Mediolani,
+1723.--Dissertazioni sopra le Antichità Italiane, etc. Roma, 1755.
+
+_Otto (Freising)_: Chron.
+
+_Pertz_: Monumenta Germaniae Historica, etc. (Diplom.; Leges; Script.)
+
+_Paulus Diaconus_: De Gestis Langobard. v. _Muratori_: Script. Rer.
+Ital., Tom. I.
+
+_Savigny_: Geschichte des Romischen Rechts im Mittelalter, etc.
+
+_Sismondi_: Histoire des Républiques Italiennes du Moyen Age. Paris,
+1840.
+
+_Tacitus_: Germania.
+
+_Tiraboschi, Girol_: Storia della Badia di S. Silvestro di Nonantula,
+etc. Modena, 1784-1785.
+
+_Tomasini, Ludov._: Dei Benefizii.
+
+_Tommasio_: Historia sanese.
+
+_Troya_: Delia Condizione dei Romani, etc.
+
+_Ughelli_: Italia Sacra. 10 vols. fol. Venetiis, 1717-1722.
+
+Collections of documents in the _Archivii_ of many cities of Northern
+Italy.
+
+N.B.--The above list is restricted to those works to which direct
+reference is made in the text and foot-notes.
+
+
+FOOTNOTES:
+
+
+[1:] _Paulus Diaconus_: De Gest. Lang., Lib. II., c. 32. v.
+_Muratori_: Script. Rer. Ital., T. I., p. 436. The Gothic system was
+to take one-third of the land itself from the conquered people; the
+Lombards on the other hand took one-third of the produce, "_frugum_."
+
+[2:] With the growth of society and the increase of population, the
+_milites_ gain added power, and become the "_catanei_," the barons of
+the period, or as some are pleased to call them, the "rural counts."
+
+[3:] _Tacitus_: Germania, cap. xvi.
+
+[4:] The Sagas say the Lombards came originally from Scandinavia.
+Their name is commonly derived from "Long-beard," but more probably
+came from words signifying "a long stretch of land." Their first
+appearance in history is during the first century of the Christian
+era, in the region of Magdeburg. All trace of them is then lost till
+they reappear in the fifth century on the banks of the Oder; they then
+go south to the river Theiss. They are in a constant state of war with
+the Gepidae, a tribe nearly as fierce as themselves, which strife is
+supposed to have been fomented by the eastern emperors. In the year
+567 the Lombards, under their king Alboin, together with the Avars,
+begin to move into Pannonia from Dacia and the region of the Don.
+Kunnemund, the king of the Gepidae, is killed, and his conquered
+people merged in the race of their conquerors. In the next year, still
+victorious, they overrun Northern Italy.
+
+[5:] Some of these cities were enabled to hold out for a considerable
+period. Pavia was not taken till 572.
+
+[6:] To these seaports some of the functionaries of the inland towns,
+especially among the clergy, were able to effect their escape. For
+instance, the Archbishop of Milan fled to Genoa, and the Archbishop of
+Aquileja to Venice.
+
+[7:] The Christianity of the Lombards of the invasion was of the Arian
+form. Autari, who reigned from 584 to 591, married Theodolinda of
+Bavaria, and she first introduced orthodox Christianity. At the death
+of Autari she married Agiluf (591-615) duke of Turin, who was an
+Arian, but who pursued a mediative policy. During his reign a double
+ecclesiastical system, with orthodox and Arian bishops side by side,
+was maintained.
+
+[8:] Justinian gave him the right to exercise, in reference to each
+city, the functions of the governor of the province, during the
+latter's absence; and granted him jurisdiction in all cases not
+involving a larger sum than 300 _aurei_. He had a certain amount of
+authority in criminal matters, and two apparitors were attached to his
+person. The _defensores_ had two guarantees for their power and their
+independence. 1. They had the right of passing over the various
+degrees in the public administration, and of carrying their complaints
+at once before the praetorian prefect; this freed them from the
+jurisdiction of the provincial authorities. 2. They were elected by
+the general body of the inhabitants of the _municipium_.
+
+[9:] _Paulus Diaconus_: Lib. V., 7, 17, 18.
+
+[10:] His words are: "Erano stati i Longobardi dugento ventidue anni
+in Italia, e di già non ritenevano di forastieri altro che il
+nome."--_Nicolò Macchiavelli_: Istorie Fiorentine, Lib. I. _vid_.
+Opere, Vol. III., p. 219 (ed. Milano, 1804).
+
+[11:] It is difficult to draw any picture of the different ranks of
+society at this period, which would at once be perfectly accurate, and
+yet definite enough to give entire satisfaction to the student.
+
+[12:] Geschichte des römischen Rechts im Mittelalter, _passim_.
+
+[13:] _Brunetti_: Cod. Diplom. Toscan. Firenze, 1806, Docum. No. 44.
+
+[14:] _Idem_. Docum. No. 8.
+
+[15:] _Brunetti_: Cod. Diplom. Toscan. Docum. Nos. 6-10.
+
+[16:] _Idem_. Docum. No. 43.
+
+[17:] _Liutprandi_: Leg. Long. Prolog. Anni XVI. et XV. et al. Vid.
+_Muratori_: Script. Rer. Ital., Tom. I., P. II., p. 15, et seq.
+
+[18:] _Liutprandi_: Leg. Prolog. Anni XIII. Vid. _Muratori_: Script.
+Rer. Ital., Tom. I., P. II., p. 15.
+
+[19:] _Crimoaldi_: Leg. Prolog. Vid. _Muratori_ op. cit. Tom. I., P.
+II., p. 49.
+
+[20:] _Liutprandi_: Leg. Prolog. ad Lib. III. Vid. _Muratori_: Script.
+Rer. Ital., Tom. I., Pars II., p. 15.
+
+[21:] _Muratori_: Script. Rer. Ital., T. II., Pars II.
+
+[22:] _Savigny_: Gesch. des röm. Rechts im Mittelalter, S. 422 et al.
+
+[23:] _Muratori_: Script. Rer. Ital., Tom. I., Pars II., p. 15.
+
+[24:] _Paulus Diaconus_: De Gest. Langobard., Lib. III., cap. 16.
+
+[25:] _Brunetti_: Cod. Diplom. Toscan. Docum. No. 6, anni 715.
+
+[26:] _Ibid_.: Cod. Diplom. Toscan. Docum. No. 8, anni 715.
+
+[27:] _Ibid_.: Docum. No. 11, anni 716.
+
+[28:] _Ibid_.: Docum. No. 50, anni 756.
+
+[29:] _Muratori_: Script. Rer. Ital., Tom. I., Pars II., p. 192E.
+
+[30:] _Muratori_: Antiq. Ital. Diss. II., p. 186.
+
+[31:] _Muratori_: Script. Rer. Ital., Tom. II., Pars II., p. 409.
+
+[32:] In a donation to "Aimo Voltarius, abitator castrii Viterbii."
+Vid, _Troya_: Della Condizione, etc., p. 361. Docum. No. 6, anni 775.
+
+[33:] _Ughelli_: Italia Sacra, Tom. III., p. 28.
+
+[34:] _Ibid_.: Tom. II., p. 145.
+
+[35:] The word _palatium_ in the signification of _fiscus_ is perhaps
+more frequently used by the Frankish kings than by the Lombard. See a
+_privilegium_ granted to the nuns of the Posterla di Pavia by Lothar
+I. in the year 839, in which it appears that any one infringing its
+privileges must pay seventy pounds of the best gold, to be applied
+"medietatem Palatio nostro, et medietatem parti ejusdem monasterii."
+Vid. _Muratori_: Antiq. Ital. Diss. XVI., Tom I., P. I., p. 233. Also
+several diplomas of Charles the Fat, and others make use of the same
+term. The word _camera_ for _fiscus_ as the imperial treasury, was
+probably not used before the time of Lewis II.; the first authentic
+use of it in that sense being probably a diploma of that monarch of
+the year 894, where he says that one hundred pounds of gold are to be
+paid "medietatem Imperiali Camere et medietatem suprataxatae
+Angilberge." Vid. _Muratori_: loc. cit. p. 234.
+
+[36:] From _Otto of Freising_, De Gest. Freder., Lib I., cap. 31, we
+know that the same distribution took place in Hungary, which was
+divided into seventy _comitates_; "et de omni justitia ad Fiscum
+Regium duas lucri partes cedere, tertiam tantum Comiti remanere."
+
+[37:] _Charlemagne_: Leg. Lomb. Nos. 127 and 128.
+
+[38:] Lex No. 128.
+
+[39:] _Muratori_: Diss. Ant. Ital. Dissert. VIII., Tom. I., P. I., p.
+96.
+
+[40:] _Muratori_: Script. Rer. Ital., Tom. II., Pars II.
+
+[41:] In illustration of this fact I will cite the names of some of
+the various taxes, dues and privileges, mention of which is found in
+the old documents. The feudal character of these will be apparent to
+the reader. Following the rough division indicated in the text, we
+have:
+
+I. Under heading "_Fines and Forfeitures_":
+
+  1. Forfaturae:
+        Forisfacturae,
+        Multae (Mulcte),
+        Freda,
+     _e.g_. Leudis (Leudum) for homicide.
+     Penalties and compositions for crime.
+
+  2. Scadentiae:
+        Excadentia,
+        Bona caduca.
+     _Publicum_ falls heir to various classes of individuals. Cf. Leg.
+        _Rhotari_, No. 158 et al.
+
+  3. Lagan (Laganum).
+     Seizure of shipwrecked goods by the state. Examples more
+       common after year 1000 A. D.
+
+II. Under the head of "_Taxes and Privileges_":
+
+  1. _Onera Publica_, or Angariae (Perangariae), Factiones publicae.
+     _a_. Heribannum: Penalty for avoidance of military service.
+          Cf. _Charlemagne_, Leges, No. 23 et al.
+     _b_. Heribergum: Hospitality to _Missi_ of emperor or king. Cf.
+          _Charlemagne_, Leges, No. 128 et al.
+     _c_. Mansionaticum (Mansiones, Evectio): Lodging for king and
+          his ministers.
+     Conjectum was a pro rata tax on a district so as to meet the
+       expense. Cf. _Lud. Pius_, Leg. Nos. 54, 24, et al. loc.
+     Tractoria gave specification of what should be provided in each
+     case. For Formula, v. _Marcolfo_, Lib. I.
+     _d_. Veredi (Paraveredi): Horses and beasts of burden for king
+       and ministers. Cf. in Capitular. Reg. Franc. saepe. Capit.
+       _Lud_. II., Ad Missos, etc.
+     Census vehicularius, fiscalis or publicus was post to carry, free
+       of expense, king's letters, etc.
+     _e_. Foderum (Fodrum): Support of a king and his army in
+       passing through a district. Cf. many privileges and exemptions
+       to different churches and monasteries. Articles of the Peace of
+       Constance. Some privileges to private persons.
+
+  2. _Teloneum_.
+    _a_. Pedagium: General word for _tolls_ on streets, roads,
+bridges, etc.
+      [Greek: alpha]. Pontaticum, for bridges.
+      [Greek: beta]. Portaticum, for gates.
+      [Greek: gamma]. Platiaticum, for license to sell in market.
+      [Greek: delta]. Casaticum, for houses.
+      Cf. _Otho_ II., Diploma to Monast. Volturno a. 983, et al. loc.
+    _b_. Ripaticum: General word for tolls and taxes for transport by
+     water. Cf. Diploma of Berenger II. v. _Ughelli_, Italia Sacra,
+   Tom. V. Also a Privilegium of Charlemagne, anno 787. v.
+_Ughelli_, Italia Sacra, Tom. V., a. 787. This privilegium
+confirms the laws of Liutprand, and shows how much the
+inhabitants of Como had to pay in various places in moving salt
+down the rivers of Lombardy.
+      [Greek: alpha]. Paliscitura,
+      [Greek: beta]. Trasitura,
+      [Greek: gamma]. Navium ligatura.
+      Wharfage dues.
+      [Greek: delta]. Portonaticum, harbor dues.
+      [Greek: epsilon]. Curatura, probably a tax on certain
+merchandise.
+      [Greek: zeta]. Passagio, probably same as preceding, but
+possibly a tax in favor of those going to the Holy Land.
+
+  8. _Auxilia_ (Occasiones) (dues from vassals):
+    _a_. Praestitiones.
+    _b_. Dona.
+    _c_. Gratuita.
+    _d_. Mutua.
+    More common after the year 1000 A.D.; but, for an example in the
+    year 878, see a Diploma of Lewis II., published by _Puricelli_
+  in his Monumenti della Basilica Arnbrosiana.
+
+III. Under head of "_lands owned by Crown or Publicum_":
+
+  1. _Terra Censualis_. Holder of t.c. owed these duties:
+    _a_. Glaudaticum,
+    _b_. Escaticum,
+    _c_. Herbaticum,
+    _d_. Datio,
+    _e_. Alpaticum,
+    _f_. Agrarium.
+    Payments for right to pasture cattle and swine on public lands.
+      Cf. Chron. da Volturno, a. 972. Chron. Farfensis. Privileg. Lud.
+      Pii, et al. loc.
+    _g_. Terraticum, amount of produce given for right to cultivate.
+    _h_. Pascuarium, payment for sheep pastured on the public land.
+    _i_. Boazia, tax levied on every pair of oxen; probably not
+      developed before XII. century.
+
+The taxes and so forth mentioned in this list are by no means all that
+were levied, but are a fair representation of them. After the year
+1000 their feudal character is even more strongly marked.
+
+[42:] This statement, while true of all integral parts of the Lombard
+kingdom, must, however, be modified in regard to the great duchies of
+Spoleto and Beneventum, which were under a different system of
+internal government from the kingdom of Lombardy proper--were, in
+fact, small tributary kingdoms under great dukes enjoying practically
+royal powers. The Duchy of Beneventum seems to have been divided into
+_gastaldata_, divisions of territory similar to the _civitates_ of
+Lombardy, but presided over by a gastald instead of by a _dux_ or
+_comes_. In the charter of division made between the dukes of
+Beneventum and of Salerno in the year 851--v. _Muratori_, Ant. Ital.
+Diss. X.--are mentioned "integra gastaldata, seu ministeria Tarentum,
+Latinianum, Cusentia, etc." And, at an earlier date, _Paulus
+Diaconus_--De Gest. Long., Lib. V., cap. 29--tells of a certain
+"Alzeconis Dux de Bulgaris," to whom Grimoald, Duke of Beneventum,
+gives "ad habitandum ... Lepianum, Bovianum et Inferniam, et aliis cum
+suis territoriis civitates; ipsumque Alzeconem mutato dignitatis
+nomine, de duce gastaldium vocari praecepit."
+
+[43:] v. _Muratori_: Script. Rer. Ital., Tom. III., Pars II., p. 162D.
+
+[44:] _Liutprandi_: Leg. Lib. VI., Leg. 29. v. _Muratori_: Script.
+Rer. Ital., Tom. I., Pars II.
+
+[45:] _Muratori_: Ant. Ital. Diss. X., Vol. I., P. I., p. 121.
+
+[46:] _Muratori_: Script. Rer. Ital., Tom. III., p. 155A.
+
+[47:] Ed. _Rhotari_: Leg. 23 and 24. v. _Muratori_: op. cit., Tom. I.,
+Pars II.
+
+[48:] _Liutprandi_: Leg. Lib. IV., 7.
+
+[49:] _Liutprandi_, Leg. Lib. IV., 8, says: "Si homines de sub uno
+Judice, de duobus tamen Sculdahis causam habuerint, etc."
+
+[50:] _Paulus Diaconus_: De Gest. Lang., Lib. VI., 24.
+
+[51:] _Muratori_: Ant. Ital. Diss. X., Vol. I., Parte II., p. 116.
+
+[52:] _Ughelli_: Italia Sacra, Tom. V.
+
+[53:] _Caroli Magni_, Leg. Lomb. 36: "Ut nullus homo in Placito
+Centenarii neque ad mortem, neque ad libertatem suam amittendam, aut
+res reddendas vel mancipia judicetur. Sed ea omnium in praesentia
+Comitum, vel Missorum nostrorum, judicentur."
+
+[54:] _Liutprandi_: Leg. Lib. V., 15.
+
+[55:] Chronicon Fontanellense, Cap. I. v. _Muratori_: Ant. Ital. Diss.
+X., Vol. I., Parte I., p. 117.
+
+[56:] _Rachis_, a decree of--existing in the Monast. of Bobbio. v.
+_Muratori_: Aut. tal. Diss., Vol. I., Part I., p. 118 (Diss. X.).
+
+[57:] _Liutprandi Ticinensis_: Historia, Lib. I., cap. 10. v.
+_Muratori_: Script. Rer. Ital. II., p. 431. _Pertz_, Monum.; Script.,
+Tom. III.
+
+[58:] The opposite sides of the question are ably presented by
+_Savigny_: Geschichte des Röm. Rechts, etc., Vol. I., p. 230 et seq.
+(trans.), and _Hegel_; Städteverfassung v. Italien, etc., I., page
+470, note.
+
+[59:] It is difficult to find an English word which intelligently
+renders the various names for these freemen in their judicial
+capacity, used by the different nations, such as _arimanni,
+rachinburgi, boni homines_, etc. Most English writers make use of the
+German word _schöppen_. I have taken the rendering "judicators" from
+Edward Cathcart, the translator of the first volume of Savigny's
+Geschichte des Römischen Rechts im Mittelalter.
+
+[60:] _Liutprandi_: Leg. 25, Lib. IV., 7.
+
+[61:] _Rachis_: Leg. No. 11.
+
+[62:] _Savigny_: Geschichte, etc., Vol. I., p. 233, trans.
+
+[63:] Preserved in the Archives of Farfa. Published by: _Mabillon_:
+Annales Ord. S. Benedicti, Tom. II., p. 154. _Muratori_: Script. Rer.
+Ital., Tom. II., Pars II., p. 341.
+
+[64:] We have confirmation of this from a document of the early part
+of the ninth century, which says: "De Vicariis et Centenariis qui
+magis propter cupiditatem quam propter justitiam faciendam saepissime
+placita tenent, et exinde populum minus affligunt, ita teneatur ... ut
+videlicet in anno tria solummodo generalia placita observent et nullos
+eos amplius placita observare compellat." From Worms Capitulary of
+_Lewis the Debonnair_, a. 829, c. 5. Also compare: Capit. V., anni
+819, Art. 14. Capit., Lib. IV., c. 57. (_Baluzii_, 616 infr., 788
+supr.) _Caroli Magni_, Leg. Long. 69. (_Canciani_ I., 157.)
+
+[65:] _Brunetti_: Cod. Diplom. Toscan. Doc. No. 18.
+
+[66:] _Bouquet_: Rerum Ghillicarum et Francicarum Scriptores.
+
+[67:] _Baluzii_: Capit. Reg. Franc. a. 789, Tom. V., p.
+746.
+
+[68:] Capit. I., Art. 13, anni 813. v. _Baluzii_: Capit. Reg. Franc.,
+Tom. I., p. 509.
+
+[69:] _Muratori_: Ant. Ital. Diss. X., Vol. I., Pars I., p. 115.
+
+[70:] _Caroli Magni_: Leg. Long. No. 92.
+
+[71:] _Sismondi_: Rep. Ital. du Moyen Age, Vol. I., p. 268.
+
+[72:] Capit. II., anni 819, Art. 2. v. _Baluzii_: Capit. Reg. Franc.,
+Tom. I., p. 605.
+
+[73:] Loc. cit. sup.
+
+[74:] _Caroli Magni_: Leg. Long. No. 116.
+
+[75:] _Caroli Magni_: Cap. Minora, anni 803, c. 20.
+
+[76:] "Adjutores Comitum, qui meliores, et veraciores inveniri
+possunt." _Lothar I_.: Leg. No. 49. v. _Muratori_: Ant. Ital. Diss.
+X., Vol. I., Parte I., p. 112.
+
+[77:] _Caroli Magni_: Capit. I., anni 809, Art. 22. v. _Baluzii_:
+Capit. Reg. Franc. I., 466 infr.
+
+[78:] _Lothar I_.: Capit. anni 873, Art. 9. v. _Baluzii_: Capit. Reg.
+Franc. Tom. II., p. 232. Leg. No. 48. v. _Muratori_: Diss. X., Vol.
+I., P. I., p. 112.
+
+[79:] _Muratori_: Ant. Ital. Diss. LXXVII., Tom. III., Parte II., p.
+189.
+
+[80:] Vid. _Tommasio_: Historia sanese, Lib. IV.; _Ughelli_: Italia
+Sacra, Tom. III., for this privilege.
+
+[81:] _Brunetti_: Cod. Diplom. Toscan. No. 8, a. 715. A priest named
+Gunthram says: "Nec cumquam ab episcopum Senensem coridicionem
+habuimus, nisi, si de seculares causas nobis oppressio fiebat,
+veniebamus ad judicem Senensem, eo quod in ejus territorio sedebamus."
+
+[82:] _Brunetti_: Cod. Diplom. Toscan. No, 8, a. 715. Germanus, a
+deacon, says: "Quoniam prelectus a plebe, cum epistola Warnefried [the
+Gastald of Siena] rogaturus ambulavi ad Luperceanum Aretine Ecclesie
+Episcopum et per eum consecratus sum."
+
+[83:] For example see a judgment of the year 771, in the Archivio of
+Lucca. For which vid. _Muratori_: Ant. Ital. Diss. LXX., Tom. III., P.
+II., p. 184.
+
+[84:] Good illustrations of all these statements are to be found in
+two documents in the Archivio Archivescovile of Lucca, of about the
+year 813. Vid. _Muratori_: Ant. Ital. Diss. LXX., Tom. III., Parte
+II., p. 184.
+
+[85:] Codex Carolinus--_Adriani I_., Epist. Nos. LV., LXXIX., LXXII.,
+L.
+
+[86:] _Ermoldi Nigelli_: Poema. V. _Muratori_: Script. Rer. Ital.,
+Tom. II., Pars II.
+
+[87:] _Muratori_: Ant. Ital. Diss, LXX., Vol. III., Parte II., p. 188.
+
+[88:] _Pertz_: Monum. German., Tom. IV., p. 176.
+
+[89:] It is true that _Muratori_ (Script. Rer. Ital., Tom. I., Pars
+II., p. 192) publishes a diploma to the monastery of Novantulanum,
+near Modena, purporting to be by Aistulf and of the year 753; and (in
+Ant. Ital. Diss. LXXI., Vol. III., P. II., p. 256) another by
+Desiderius to the monastery of Santa Giulia di Brescia, which seems to
+grant exemption and protection if not privilege. But in the first the
+formula employed is so exactly similar to that of the later Frankish
+documents issued for the same purpose, as immediately to excite
+suspicion; and in the second, Muratori himself finds something
+radically wrong with the chronology.
+
+[90:] An even better example can be found among Charlemagne's
+diplomas, by referring to one granted by him to the church of Reggio,
+and published by _Ughelli_: Italia Sacra, Tom. V., Appendice.
+
+[91:] See a charter given by Lothaire to Pietro, bishop of Arezzo in
+843, the year of the Treaty of Verdun, v. _Muratori_: Ant. Ital. Diss.
+LXX., Vol. III., Parte II., p. 196.
+
+[92:] See a law of Lewis II. of 855, made in the Diet of Pavia. v.
+_Muratori_: Script. Rer. Ital., Tom I., P. II. (added to Leg. Lomb.).
+
+[93:] Certain "dona," however, supposed to be voluntary, were always
+excepted. See a diploma of Louis of the year 854 to the monastery of
+St. Gall in Germany, where it describes the usual "dona" for _all_
+monasteries as "Caballi duo cum scuteis et lanceis." v. _Muratori_:
+Ant. Ital. Diss. LXX., Vol. II., Part II., p. 204.
+
+[94:] See a _privilegium_ given by him in the year 877 to the nuns of
+the Posterla, Sta. Teodata at Pavia. v. _Ughelli_: Italia Sacra, Tom.
+V.
+
+[95:] _Muratori_: Ant. Ital. Diss. LXX., Vol. III., Parte II., pp.
+196, 197.
+
+[96:] Probably the earliest of such privileges was one granted to the
+bishop of Modena by Guido in the year 892, and published by _Ughelli_:
+Italia Sacra, Tom. II., p. 98.
+
+
+
+
+
+End of the Project Gutenberg EBook of The Communes Of Lombardy From The VI.
+To The X. Century, by William Klapp Williams
+
+*** END OF THE PROJECT GUTENBERG EBOOK 12162 ***
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+The Project Gutenberg EBook of The Communes Of Lombardy From The VI. To
+The X. Century, by William Klapp Williams
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: The Communes Of Lombardy From The VI. To The X. Century
+       An Investigation Of The Causes Which Led To The Development
+         Of Municipal Unity Among The Lombard Communes.
+
+Author: William Klapp Williams
+
+Release Date: April 26, 2004 [EBook #12162]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK COMMUNES OF LOMBARDY ***
+
+
+
+
+Produced by Keith Eckrich, Juliet Sutherland and PG Distributed
+Proofreaders
+
+
+
+
+
+JOHNS HOPKINS UNIVERSITY STUDIES
+
+IN
+
+HISTORICAL AND POLITICAL SCIENCE
+
+
+HERBERT B. ADAMS, Editor
+
+
+History is past Politics and Politics present History.--_Freeman_
+
+
+
+NINTH SERIES
+
+
+
+
+V-VI
+
+The Communes of Lombardy from the VI. to the X. Century
+
+AN INVESTIGATION OF THE CAUSES WHICH LED TO THE DEVELOPMENT OF
+MUNICIPAL UNITY AMONG THE LOMBARD COMMUNES
+
+
+BY WILLIAM KLAPP WILLIAMS, PH.D.
+
+NEWBERRY LIBRARY, CHICAGO
+
+May, June, 1891
+
+     "Est error spretus, quo Langobarda juventus
+     Errabat, verum loquitur nunc pagina sensum."
+
+
+RHOTARI: _Legum Prologus_.
+
+
+THE COMMUNES OF LOMBARDY FROM THE VI. TO THE X. CENTURY.
+
+
+
+PART I.
+
+
+THE LOMBARD CONQUEST AND ITS RESULTS.
+
+Before tracing the beginnings of renewed municipal life in Northern
+Italy, we must consider the conditions of land and people, which first
+rendered possible and then fostered the spirit of local independence
+of which such beginnings were the natural expression. To do this we
+must commence our researches with the first domination of the Lombards
+in the country.
+
+In detail the story of the conquest of Northern Italy by the Lombards
+under Alboin, in 568, hardly differs materially from that of the
+inroads of other barbarian tribes of the north on the fertile plains
+of Italy. The causes were the same. Where the distinction is to be
+found from other such invasions, is in the results of the Lombard
+occupation, and in the different methods which the Lombards adopted so
+as to render their power and their possessions permanent. Let us look
+at the character of this invading host, which sweeps like a tide, at
+once destroying and revivifying, over the exhausted though still
+fertile plains of the Po and the Adige. Are we to call it a moving
+people or an advancing army? Are we to call its leaders (_duces_, from
+_ducere_ to lead), heads of clans and families, or captains and
+generals? Finally, is the land to be invaded, or is the land to be
+settled? To all these questions the only answer is to be found in the
+conception of the absolute union of both the kinds of functions
+described. A people is moving from a home whose borders have proved
+too narrow for its increasing numbers; an army is conquering a new
+home, where plenty will take the place of want, and luxury of
+privation. It is not an army marching at the command of a strongly
+centralized power to conquer a rich neighbor, and force a defeated
+enemy to pay it service or tribute. It is a body which, when it has
+conquered as an army, will occupy as a people; when it is established
+as a people, will still remain an army. The sword was not turned into
+the ploughshare; but the power to wield the sword had given the right
+to till the land, and soon the power to hold the land was to give the
+right to wear the sword. It was the conquest of a highly civilized
+agricultural people--whose very civilization had reduced them to a
+stage of moral weakness which rendered them totally unfit to defend
+themselves--by a semi-barbarous people, agricultural also, but rude,
+uncivilized, independent, owning no rulers but their family or
+military chiefs.
+
+The conquerors took possession of the country simply as they would
+take possession of a larger farm than they had before owned. Their
+riches were only such as served for the support of men--herds, land,
+wine and corn. They needed cultivators for their large farm, so
+instead of destroying every one with fire and sword, they spared those
+of the weak inhabitants of the land who had survived the first
+onslaught, in order that they might make use of farmers to cultivate
+their new possessions. In most cases they did not make slaves of them,
+but tributaries; and after the land had been portioned evenly among
+the soldiers of the invading host, the original holders of the land
+tilled it themselves, under a system somewhat kindred to the metayer
+system as to-day existent in Tuscany and elsewhere, paying, according
+to the usual custom adopted by the northern conquerors of Italy,
+one-third of the produce[1] to their new masters. The whole
+organization of society was on a purely military basis; the soldiers
+of the conquering army, although they became landed proprietors, none
+the less retained their character and name of soldiers. Hence when
+these crude forms of social life began to crystallize into the
+carefully marked ranks of the feudal system, the "_milites_"[2] formed
+the order of gentlemen, the smaller feudatories, who gave land in fief
+to their vassals--generally the old inhabitants--while holding their
+own nominally from the "_duces_," or dukes, the representatives of
+their former leaders in war, who held their tenure direct from the
+king or chief.
+
+As the object of this paper is particularly to trace the origin and
+early sources of municipal life in Northern Italy, let us turn and see
+what were the effects on the already existing towns, of the inroads of
+these hordes of northern barbarians. At the outset I must state
+emphatically that all our sources of information as to the
+institutional history of this obscure period are exceedingly vague,
+meagre and unsatisfactory. The progress of events we can follow with
+more or less accuracy from the mazy writings of the early chroniclers;
+we can get a fair idea of the judicial and the legislative acts of the
+ruling powers by studying and comparing the different codes of laws
+that have come down to us; but in a study of the internal municipal
+life of these early ages, the student meets again and again with
+increasing discouragement, and soon finds himself almost hopelessly
+lost in a tangle of doubts and inferences.
+
+In the almost total want of direct evidence, from casual mention
+gleaned from the writings of the chroniclers, and from occasional
+references in the law codes to municipal offices and regulations,
+enough indirect evidence must be sought, to enable us, by the aid of
+our powers of reasoning, if not of our imagination, to build up some
+history, defective though it be, of municipal life, down to the time
+when the internal growth and importance of the cities rendered them
+sufficiently prominent political factors to have their deeds and their
+progress chronicled. Besides, if we consider the modes by which the
+communes slowly rose to independence, it will easily be seen that to
+have every step of this slow and almost secret advance chronicled and
+given to the world, would have been entirely contrary to the policy of
+the cities. These hoped to gain by the neglect of their rulers, and
+while clinging pertinaciously to every privilege ever legally granted,
+to claim new ones constantly, putting forth as their sole legal title
+that slippery claim of precedent and time-honored custom. In that age,
+books of reference to prove such claims would have been found alike
+inconvenient and unnecessary. All the city folks wished was to be
+forgotten and ignored by their superiors, as any notice vouchsafed
+them was sure to come only in the restraint of some assumed privilege
+or the curtailing of some coveted right.
+
+Hence the principal cause of the poverty of record through all this
+period of slow if steady growth; and the disappointed investigator
+must in some measure console himself with such a reason. It may be
+asked, what of the various local histories of different towns, whose
+authors seldom fail to give highflown accounts of their native cities,
+even in the remotest and darkest ages of their history? To this
+question there is a double answer: in the first place the uttermost
+caution must be enjoined in using such material; not only in
+separating fact from baseless tradition of a much later period, but in
+making large allowance for the heavy strain which a strong feeling of
+local patriotism, or civism, puts upon the conscience of the author.
+In the second place it must be remembered that most of such histories,
+or at least of the monkish or other records from which they derive
+their source and most of their material, were written to the glory or
+under the auspices of some dominant noble family or ecclesiastical
+institution, to whose laudation in ages past and present the humble
+author devotes all the resources of his mind, and I am afraid far too
+often of his imagination.
+
+Let us now cast a glance at the exhausted civilization of the towns of
+Northern Italy, where the formal shell of Roman organization still
+remained, after the vigor and life which had produced it had long been
+destroyed. To describe the condition of the Roman _municipia_ at the
+time of the Teutonic invasions is but to tell a part of the story of
+the fall of the Roman Empire. The municipal system, which from the
+names and duties of its officers would seem to represent a surprising
+amount of local independence in matters of administration, even a
+collection of small almost free republics, had lost all its strength
+and all its vital power by the grinding exactions of a centralized
+despotism, which was compelled to support its declining power by
+strengthening the very forces which were working its destruction, at
+the expense of destroying those from which it should have gained its
+strength. The stability of every state rests ultimately on the wealth
+and character of its citizens, and any government which exhausts the
+one and degrades the other in an effort to maintain its own unlimited
+power has its days numbered. Under the despotic rule of the later
+emperors the municipalities had lost all their power, though in theory
+their rights were unassailed. The _curia_ could elect its magistrates
+as of old, and these magistrates could legislate for the _municipium_,
+but by a single word the imperial delegate could annul the choice of
+the one and the acts of the other.
+
+The economic condition of the people amounted to little short of
+bankruptcy; the possession of wealth, in landed property especially,
+having become but a burden to be avoided, and a source of exaction
+rather than of satisfaction to the owner. The inequalities of burdens
+and of rank were great. The citizens were divided into three classes:
+(1) the privileged classes, (2) the Curials, (3) the common people.
+The first, freely speaking, were those who had in a manner succeeded
+in detaching themselves from the interests of the _municipium_ to
+which they belonged; such were the members of the Senate, including
+all with the indefinite title of _clarissimi_, the soldiers, the
+clergy, the public magistrates as distinguished from the municipal
+officers. The second consisted of all citizens of a town, whether
+natives--_municipes_--or settlers--_incolae_--who possessed landed
+property of more than twenty-five _jugera_, and did not belong to any
+privileged class: both these classes were hereditary. The third, of
+all free citizens whose poverty debarred them from belonging to either
+of the preceding divisions. On the second of these classes, the
+Curials, fell all the grinding burdens of the state, the executing of
+municipal duties, and the exactions of the central government.
+
+It is not necessary for me to trace here the development of that
+financial policy which resulted in the ruin, I may say the
+annihilation of this order. Suffice it to say that it formed the
+capital fund of the government which exhausted it, and when the source
+of supply was destroyed, production ceased, and with it, of course,
+all means of governmental support. Where the extinction of this
+"middle class" touches the point of our inquiry is in affording an
+explanation of a circumstance in the history of the Lombard
+subjugation of the Italian towns, which without consideration of this
+fact would appear almost incomprehensible. I refer to the utter
+passivity of the inhabitants, not only in the matter of resistance to
+attack, which the greater strength and courage of the invaders perhaps
+rendered useless, but in what is more surprising, the fact that after
+the easy conquest was completed, we hear nothing of the manner in
+which the people adapted themselves to the totally new condition of
+life and of government to which they were subjected. Even if we can
+understand hearing nothing of what the people did, at least we should
+expect to hear what was done with it, what it became. The story of its
+resistance might be short and soon forgotten, but the story of its
+sufferings, of its complaints, of struggle against the entire change
+in the order and character of its life, should be a long one.
+
+But of this no record, hardly mention even appears. When the central
+government falls and the last of its legions are destroyed or have
+departed, there seems to be no thought of any other element in
+society. If the evidence of the law codes did not tell us that a Roman
+population existed, history would record little to indicate its
+presence. Not only is even the slightest trace of nationality effaced,
+but the merging of the old conditions of life into the new seems of
+too little consequence to merit even an allusion. This state of
+affairs, as said above, is caused by the annihilation, by the despotic
+power of the central government, of that middle class which in times
+of prosperity formed the sinews of the state. Of the other classes,
+the privileged class, with the exception of the clergy, fell of course
+with the government which supported it, and the common people
+possessed no individuality, no power, and hardly any rights. Such,
+then, was the condition of the towns at the time of the Lombard
+invasion, a condition of such abasement and such degradation as
+literally to have no history; a condition which indeed can truthfully
+be said to merit none.
+
+History tells the story of every great nation on the face of the earth
+in three short words, growth, supremacy, decline. Vary the theme as
+you may in the countless histories of countless peoples; subdivide the
+course of its progress as you will, allowing for different local
+causes and different local phenomena, the true philosophy of history
+teaches that no real departure from this natural development is
+possible. But what if by the violent intervention of some new and
+entirely foreign force, another development and another life is given
+to the inanimate ashes of the old? What if some nation, fresh from the
+woods and fields of the childhood of its growth, come with
+overwhelming yet preserving strength and infuse new blood into the
+withered veins of its predecessor? This is the problem we now have
+before us. How many writers of Italian history have entitled this
+chapter in its development "A new Italian Nation formed"! It is not
+the old glories of Rome, which had been Italy, returning; it is a new
+Italian nation formed. Each word tells a story of its own. It is not
+the old galvanized to a second life; it is the new superimposed,
+violently if you will, upon it. We do not hear of Athens or of Rome,
+of an Alexander or of a Caesar, of a city or of a man. It is an
+"Italian nation." It is the individualism of the independent spirit of
+the North, which "forms" a nation from the exhausted remains of the
+development of centralization of the South. The new idea of distinct
+nationality among races of kindred stock was already at work, even
+though it did not reach a formal expression till the Treaty of Verdun,
+more than two hundred and fifty years later.
+
+I do not mean to imply that we must in any measure ignore the passive
+force and influence of the old forms on the new. The old veins receive
+the new blood; the new torrent, overrunning everything at first with
+the strength of its new life, will find again, even if it deepen, the
+channel of the old river: a vanquished civilization will always subdue
+and at the same time raise its barbarous conquerors, if they come of a
+stock capable of appreciating civilizing influences. In the present
+case this means that the men of the North brought the new ideas that
+were to form modern history, and let their growth be directed and
+assisted, while they were yet too young to stand alone, by some of the
+framework which had been built up by the long experience of their
+Southern neighbors.
+
+To focus this thought on the immediate subject of our present study,
+this I think is the only and true solution of the tedious question, so
+much discussed by the two opposing schools of thought: whether the
+government of the Italian communes was purely Roman in its forms and
+in its conception, or purely Teutonic. The supporters of neither
+theory can be said to be in the right. You cannot say that the average
+city government was entirely Roman or entirely Teutonic, either in the
+laws which guided it, or in the channels by which these laws were
+executed and expressed. I think much time and much learning have been
+spent on a discussion both fruitless and unnecessary. We cannot err if
+we subject the question to a consideration at once critical and
+impartial.
+
+The widely differing opinions eagerly supported by different writers
+on this point, form a very good example of the deceiving influence of
+national feeling on the judgment in matters of historical criticism.
+For, on the one hand, we find many German writers ignoring entirely
+the old framework of Roman organization, and recognizing only the new
+Teutonic life which gave back to it the strength it had lost; on the
+other, a host of lesser Italian writers who magnify certain old names
+and forms, and mistake them for the substance, making all the new life
+of Italy but the return of a past, which belonged to a greatness that
+was dead. Many there are of this school in Italy, where you will often
+find to-day a commune of three hundred inhabitants, with its one or
+two constables wearing the imperial badge, "_Senatus Populusque
+Albanensis_" or "_Verulensis_," as the case may be. Truly a suggestive
+anachronism! It is true that in remote ages especially, when the
+records of history are few and uncertain--and the period we are
+considering in this paper can almost be called the prehistoric age of
+municipal institutions in Northern Italy--much can be learned and much
+truth inferred from the evidence of a name. But this is a species of
+evidence we can never be too cautious in using, as the temptation is
+always to infer too much rather than too little.
+
+In the following pages I will try to sift the evidence obtainable,
+with the impartiality of one trammeled by the support of no particular
+theory; always bearing in mind, however, one fact, all-important in a
+study where so much depends on nomenclature, namely, to give that
+shade of meaning and that amount of weight to any term which it
+possessed in the age in which it was used, carefully distinguishing
+this from its use in any earlier or later age. The importance of this
+caution will be soon seen when we come to discuss the origin of
+corporate life in the communes, where many have been misled by
+attaching to the words _respublica_ and _civitas_, for example, so
+continually recurring in the old laws and charters, a meaning which
+was entirely foreign to the terms at the period of their use. With
+this warning, we will turn to a consideration of the first effects of
+the inroad of the northern barbarians on the cities, whose exhausted
+and defenseless state has already been pointed out.
+
+One of the chief characteristics of the Teutonic tribes which overran
+Italy during the fifth and sixth centuries, was an innate hatred of
+cities, of enclosing walls and crowded habitations. Children of the
+field and the forest, they had their village communities and their
+hundreds, their common land and their allotted land, but these were
+small restrictions on their free life, and left an extended
+"air-space" for each individual and his immediate household. Homestead
+was not too near homestead, each man being separated from his neighbor
+by the extent of half the land belonging to each. The centralization
+of population in city life was a thing undreamed of, and an idea
+abhorred, alike for its novelty and for the violence it did to the as
+yet untrained instincts of the people. The strong, independent
+individualism of the Teutonic freeman rebelled against anything which
+would in any way limit his freedom of action: "ne pati quidem inter se
+junctas sedes," says Tacitus.[3] An agriculturist in his rude way, he
+lived on the land which supported him and his family, and feeling no
+further need, his untrained intelligence could form no conception of
+the necessities and the advantages of the social union and
+interdependence of a more civilized state of society; nor could he
+comprehend the mutual relations of the individual to the immediate
+community in which he lived.
+
+He could understand his own relation to and dependence on the state as
+a whole; alone he could not repel the attacks of neighboring tribes,
+alone he could not go forth to conquer new lands or increase the
+number of his herds. But why he should associate with others and so
+limit the freedom which was his birthright, for other purposes than
+those of attack and defense, of electing a leader for war, or getting
+his allotment of land in peace, was altogether beyond the horizon of
+his comprehension. He was sufficient unto himself for all the purposes
+of his daily life; to the product of his own plough and hunting-spear
+he looked for the maintenance of himself and his family, and the loose
+organization which we may call the state existed simply so as to
+enable him to live in comparative peace, or gain advantage in
+war--perhaps the first example of the new power in state-craft which
+was to revolutionize the political principles of the world; the
+individual lived no longer simply to support the state, but the state
+existed solely to protect and aid the individual.
+
+If all this be true of the Teutonic nations in general, in the earlier
+stages of their development, particularly true is it of the
+Lombards,[4] a wild tribe of the Suevic stock, whose few appearances
+in history, previous to their invasion of Italy, are connected only
+with the fiercest strife and the rudest forms of barbarism. History
+seems to have proved that tradition has maligned the Vandal; the Goth
+can boast a ruler raised at the centre of Eastern civilization and
+refinement; but the Lombard of the invasion can never appear as other
+than the rude barbarian rushing from his wild northern home, and
+forcing on a defenseless people the laws and the customs suited to his
+own rugged nature and the unformed state of society in which he lived.
+
+Such being the case, there is little cause for wonder that the
+invading Lombard directed his fury with particular violence against
+the corporate towns, whose strength was not sufficient to resist the
+attacks of his invading host. Like all other Teutonic tribes the
+Lombards were entirely unskilled in the art of attacking fortified
+towns; hence the only mode of siege with which they were acquainted
+was that of starving out the inhabitants, by cutting off all source of
+supply by ravaging and destroying the surrounding country. This fact,
+unimportant as it may seem at the first glance, materially affected
+the whole course of the later history of some of the Italian cities.
+By this means we are enabled, even at this early epoch, to divide them
+into two classes. First, those cities which, after a more or less
+short resistance, yielded to the rude tactics of the barbarians and
+were made subject by them, for example Milan and Pavia.[5] Second,
+those cities like Venice and Ravenna,[6] which, by means of a
+connection with the sea which the invaders could not cut off, were
+enabled to gain supplies by water, and so resist all efforts of the
+besieging host to capture them. They never fell completely under the
+Lombard yoke, and either retained a sort of partial autonomy or
+yielded allegiance to some other power. It is the cities of the former
+class that are the subject of this investigation.
+
+The condition of these inland towns at the time of the invasion was,
+as we have seen, weak in the extreme. The defenses, where they
+existed, were of a character to afford little protection, and the bulk
+of the inhabitants were so enervated from a life of poverty and
+oppression that they were almost incapable of offering any resistance
+in their own defense. They were reduced to such a condition as to be
+only too grateful if their rough conquerors, after an easy victory,
+disdainfully spared their lives, and left them to occupy their
+dismantled dwellings.
+
+This seems to have been the almost universal method of procedure. The
+Lombards did not in any sense, at first, think of occupying the
+conquered cities; for the reasons already given they despised, because
+they could not yet comprehend, the life of the civilian. They
+contented themselves with pulling down the walls, razing the
+fortifications, and destroying every mark which would make of the city
+anything but an aggregate of miserable dwellings. The inhabitants were
+for the most part spared, and left to enjoy, if the term can be used
+for such an existence, what the conquerors did not think worth the
+having. These felt the fruits of their victory to lie in the rich
+arable lands of the surrounding plains, and here they settled down,
+each in his own holding, portioned out by lot to every soldier; the
+town being considered but as a part of the _civitas_ or district, if I
+may use the term, of the _dux_ or overlord, from whom the several
+_milites_, or landholders of the surrounding territory, had their
+tenure, and who himself held directly from the king.
+
+It is the very insignificance of the municipal unit at this time that
+makes it so difficult to determine anything accurate of its position.
+It existed, but little more can be said of it; indeed, even this
+statement might be questioned, if we make that term signify a
+corporate existence, as will be seen further on when we come to
+discuss the question of the unbroken corporate existence of the towns.
+In a feudal age, or in an age of incipient feudalism, obligation,
+either claimed from an inferior or yielded to a superior, is a good
+index of rank and importance. Until we find the cities fulfilling
+certain obligations required by a higher power, we can learn little to
+tell of their condition or of their internal history. On the other
+hand, when we find the time come for fulfilling certain obligations,
+we can safely argue that the cities have acquired certain functions
+which put them in a position to meet the obligations which their
+growing importance has caused to be exacted of them. To trace these
+steps accurately and satisfactorily is impossible, but by the aid of
+collateral evidence a rough idea of the epochs at least of their
+progress can be gained.
+
+For this first period, then, we see the towns reduced to the lowest
+depths of wretchedness and disintegration; critically speaking hardly
+existing, but simply holding together. In studying institutions and
+tracing the course of their development, we must always remember that
+the uninterrupted continuance of their history may depend as much on
+the moral force of their existence as on the more limited and defined
+fact of their accurate and legal recognition by others. In every
+society a state of fact must in time become a state of law, as wise
+legislation is more the recognition by law of existing conditions than
+the formulating of new codes. So the towns, even at the period
+immediately succeeding their conquest by the Lombards, though their
+corporate existence cannot be claimed, nevertheless cannot be said in
+any measure to have ceased to exist; for as collections of individuals
+and of dwellings they were there, with an individuality uneffaced
+though as yet unrecognized.
+
+It was a period of utter stagnation, of suspension of life, but the
+source remained intact, from which, by the evolution of events and the
+progress of time, seeds were to spring that only needed external
+pressure to force them into a growth, slow indeed but certain, and in
+the end fruitful. A transition period we might call it. The theory of
+Roman universal domination, by relegating to the central power all the
+_political_ functions of the municipality and leaving it only its
+_civic_ ones, and these in later imperial times grudgingly and with an
+impaired independence, had left it simply an administrative instead of
+a political division of the state. In the flush of triumph the rough
+hand of the barbarian overthrew the framework of administration, and
+at first failed to recognize the necessity of replacing it by any
+other. The passivity of the conquered inhabitants--the cause of which
+has already been explained--was such that a long period elapsed before
+they realized that to regain in some measure the position of local
+independence that they had lost, and to free themselves from the
+shackles of dependence on the rural communities in which they were
+placed--a dependence forced upon them by the natural development of
+the new state system of their Teutonic conquerors--some common effort
+at organization was needful, for purposes at least of self-defense.
+That this effort came from the town itself, from the people and not
+from the external power of the ruler or overlord, is the fact which
+first makes the history of these municipalities interesting.
+
+There are two facts, however, which, even at this early date, begin to
+influence the internal history of the communes. These are the
+influence which the Church,[7] through its bishops, began to attain in
+the civil affairs of the country; and the idea beginning to gain
+currency that the locality where a number of individuals, however
+wretched in state, were collected together, would afford a safer
+refuge than the open country to the oppressed, the homeless and the
+outcast. I will briefly consider the latter first, as of less
+importance, though not unconnected with the former.
+
+In the period of great confusion in all relations of property which
+ensued from the Lombard military system of small independent
+landholders and a few great overlords, with a nominal royal ownership
+of title, and before the feudal system was established, with its iron
+rules in regular working order, constant inequalities of wealth and
+consequent changes in the relative positions of individuals were sure
+to ensue. In practice if not in theory, might makes right in such a
+state of society. The weaker goes to the wall, and the stronger gains
+in strength by his downfall. Besides, it was long before the roving
+and predatory instinct of the barbarian was moderated; and his weaker
+neighbor was the natural prey of the more powerful landholder, an
+example not unfrequently set by the king himself. Now, if the weaker
+party remained to brave the attack and was conquered, he was reduced
+to a state of villeinage or of dependence more or less complete. If on
+the other hand he wished to escape this change of condition, where was
+he to find refuge? The only safe asylum in those days of rapine and
+violence was that offered by the Church and its precincts. The church
+of the greatest importance in the district, in this early age when no
+walled monasteries existed, would without doubt be that situated
+within the limits of the nearest town. To this haven then comes the
+outcast, hastily collecting his family and all of his wealth of a
+portable character; the country loses a small landed proprietor, but
+the town gains a citizen, a freeman, a member of the upper class.
+
+Of course many of the fugitives who sought asylum in the towns were as
+low as the great numbers of the semi-servile population, but much that
+was new and of a better character and intelligence, and even a large
+amount of property, which later gave birth to commercial and other
+interests, were introduced by members of the higher classes fleeing
+from their more powerful neighbors. Also the human instinct of seeking
+fellowship in misfortune probably assisted in increasing the numbers
+which in times of trouble flocked towards the towns as a haven of
+refuge and a place to seek support. To see how they were in a measure
+enabled to attain these results, we must now consider the first of the
+two facts mentioned above, that is, the power in civil affairs gained
+by the bishops.
+
+When the Lombards of the conquest, in their hatred of everything which
+savored of the old Roman civilization, overthrew all the established
+offices of city government to replace them with others of barbarian
+name and origin, or to leave them unfilled altogether, among the
+time-honored officers of the Roman rule was one whose powers were
+everywhere recognized, even if at present it is a little difficult to
+define with precision his duties. I refer to the _defensor urbis_.
+This office came into prominence when Roman despotism found that it
+was overreaching itself by grinding down the defenseless _curiae_
+below the margin of productiveness. The duties of the _defensor_ were,
+as his name implies, to protect the powerless inhabitants of the
+cities against the exactions of the imperial ministers. He enjoyed
+many important privileges of jurisdiction, and these were materially
+increased by the legislation of Justinian; and soon the _defensor_
+became an important officer of the municipality.[8] What particularly
+concerns us is that he was the only municipal officer who was elected
+not by the votes of the _curia_ alone, but by those of the whole
+people forming the _municipium_, including the bishop and his clergy.
+Now in the period just preceding the invasion of the barbarians, the
+clergy alone possessed any energy and influence; so into their hands
+fell the control of this new institution, and consequently all that
+remained of life in the municipal system.
+
+As in city matters these conditions remained unaltered after the
+coming of the Lombards, what was more natural than that the bishops
+should retain their moral position of defenders of the people, even if
+we admit that the form of the office fell with the old administration?
+To these considerations we may add two important facts: that the
+office of bishop was for a long time the only one in the election to
+which the people--and by this term I mean the people as a whole, not
+the _populus_ of the old laws and charters--had any voice whatever;
+and that the bishop, from his spiritual position as pastor of the
+flock, and from his civil position as having great legal influence in
+the town and being probably the only man of superior intellect
+interested in the internal affairs of the community, was the proper
+and most effectual mediator between the people and their temporal
+rulers. Hence arose that important influence of the bishops which was
+to have so perceptible an effect on the subsequent development of the
+principles of liberty in the communes.
+
+To appreciate properly, and to give the true value to this power in
+its later progress, we must remember one thing: that it did not have
+its origin by any seeking of power by either the Roman or the
+Ambrosian church as a body, in any concerted effort to extend the
+ecclesiastical power at the expense of the civil. It came from the
+spontaneous effort of the pastor, the natural and at that time the
+only protector of the people, trying to save his flock from the
+extortion and the injustice of their temporal rulers. In addition to
+this it must be remembered that at that time the office of the bishop
+was the only one where even the shadow of the democratic idea was
+preserved, the only one where the lowest of the people, theoretically
+at least, had a voice in the election. In later times, when the feudal
+system becomes established in its completeness, the position of the
+bishop undergoes a great change, as his relations to the state and to
+society become more complex in their character; and his importance in
+the community, while it at first increases, in time surely diminishes,
+under the influence of his double relation of lord and vassal to some
+higher temporal power. When he in his turn becomes the possessor of
+political power as a great baron or as head of a _civitas_, his
+interests, and consequently his influence, are concerned with
+intriguing and with efforts for his own political advancement, in many
+cases leaving but few traces of the old relation of "defender of the
+people." It is, however, of importance to note that this decline in
+his prominence in civil life is commensurate with the diminished need
+by the people of his protection, owing to the steady increase in the
+security and independence of their position.
+
+To sum up briefly the chief characteristics of the early and obscure
+period which we have been considering, I think we can truly call it a
+transition period, and its history a tottering bridge from the dead
+Roman municipal system of the past, to the new state and city life of
+the future; from a state of society where, as we have seen, the city
+had changed from a political to an administrative division, to one
+where the city was to prepare itself again to claim, and eventually,
+by the growth of internal resources, to gain the lost function of
+sovereignty. The condition of the people during this time we have seen
+to be wretched in the extreme; the dismantled city but a bunch of
+comfortless dwellings; its inhabitants but a semi-servile population,
+with a small admixture of refugees of a better class; the city
+occupying but a subordinate place as part of the rural holding within
+whose limits it stood; whatever of wealth it contained an easy if not
+a legitimate prey to the turbulent spirits, whose mutual contests kept
+the surrounding country in a continual state of disturbance. The only
+men of any influence in the community we have seen to be the bishops,
+who, while steadily gaining in rank and power, stood forth as
+defenders of the people. During all this time, however, the new sap
+brought by the northern conquerors has been slowly but steadily
+entering into and forming the constitution of the people. The chaste
+and uncorrupted Northmen have by means of legitimate intermarriage
+with the best of the enervated inhabitants of the land, raised up an
+almost new race, who combine in their nature the humanizing effects of
+the old civilization with the love of independence and the temperate
+virtues of the northern conquerors, a race willing to benefit by the
+experience of the past, and resolved to carve out for itself a new and
+independent future.
+
+
+
+PART II.
+
+ELEMENTARY SOURCES OF MUNICIPAL UNITY IN LOMBARD AND FRANKISH TIMES.
+
+
+In the second part of this paper we have to consider a period of
+development rather than one of transition, of growth rather than of
+change. We have before us the task of tracing the advance from a
+period of barbarism to one when the feudal system had obtained an
+almost complete domination over the social system of Europe.
+Considering the principles which lay at the base of the society of new
+Europe, this system is a natural, indeed an unavoidable evolution from
+the stage of barbarism and social disorganization. The confusion in
+all social and economic relations consequent on the combination of the
+old and the new elements in European life, had led to a state of
+disintegration that could not continue. A new regulative force was
+required which would at the same time have power sufficient to control
+the various warring elements with which it had to deal and reduce them
+to some sort of harmony, and yet which would not in its nature be in
+opposition to the decentralizing spirit and the idea of individual
+independence, which formed the most marked characteristic of the
+dominant element of the new society. Feudalism sprang from the midst
+of barbarism not by a sudden birth, but by a growth at once natural
+and necessary: natural, because it was but a regulation by law of
+conditions produced by the character of the people and their mode of
+life; necessary, because the progress of civilization was carrying
+society ahead of the stage of anarchy and barbarism in which the
+overthrow of the old regime had left it.
+
+The economic changes which were produced by the transition to the new
+principles represented by the feudal system, are as great and in their
+way as important as the political ones. When we say that feudalism
+represents the transfer of the dominant power from a central head to
+scattered members, from the capital to the castles, we speak of it in
+its most prominent, its political character. But we must not forget
+that this transfer also meant a great economic change in the
+organization of society: that it meant a transfer of the seat of
+economic importance from the city to the country; the spirit of the
+times requiring, especially in the earlier stages of the development
+of the institution, that the seat of wealth should follow the seat of
+power. I note this now because we shall soon have occasion to consider
+how important a factor, in the earliest period of the development of
+the cities, their entire lack of prominence in both political and
+economic affairs was to prove itself. Under the old Roman system, as
+we have seen, the city was the important unit: Rome was a subduer and
+an upbuilder of cities. Under the new Teutonic element the land is
+what is brought into prominence, and the possessor of it into power.
+The dominant member of society is the landowner and not the citizen.
+In ancient society the "citizen" need own no land; in the modern
+society of the feudal age, the "gentleman" could not be such without
+owning land.
+
+This opposition between the citizen, the burgher, and the landowner,
+the baron, leads us to a conclusion of the utmost importance to the
+whole study of city life during the middle ages. We note the universal
+prevalence of the _forms_ characteristic of the feudal system, and
+from this we conclude that its _principles_ were as universally
+adopted. Now this is to a certain extent an error. There were certain
+institutions which from the very nature of their origin and of the
+principles on which they were based, must have been, at once in their
+idea and in their structure, opposed to the fundamental principle of
+feudalism. The Roman Church, for example, conformed itself to the
+forms and customs of this system, but never lost its structural unity
+and centralization, ideas founded on principles which stood in direct
+opposition to those of feudalism. So it was, though perhaps in a less
+degree, with the cities. Though adapting themselves in many ways to
+feudal forms, here the idea of democracy was as strong in its
+opposition to the dominant principle of feudalism, as ever was that of
+centralization in the Church. The people, in their own conception at
+least, stood out as an organic unity, and they considered their rights
+and duties as matters which concerned them collectively, not
+separately, as the commonwealth, not as individuals. Of course it was
+long before any such opposition assumed a definite form and shape,
+before even the people became conscious of its existence; but what I
+wish to point out is, that it was there in fact from the beginning,
+and must have formed a structural part of the development of city life
+in the middle ages.
+
+In outlining the course of the history of institutions, it is seldom
+that we are so fortunate as to find definite landmarks by which we can
+accurately mark the chronological course of their development. The
+giving of definite dates for the progress of ideas is in most cases
+both misleading and illusory, as, except in instances of violent
+revolution, changes are apt to be gradual, rather than immediate and
+arbitrary. But we can indicate the periods of progress by comparing
+them with the contemporary political changes, and roughly designate
+their eras by the dates of prominent political events. In doing this,
+however, we must always remember that the dates given, while definite
+from a political standpoint, are in most cases, from an institutional
+standpoint, only indicative of a more or less extended period of
+change. This fact being recognized, let us proceed to examine the
+changes introduced into Italy by the Carlovingian rulers, and the
+condition of the society upon which these changes were engrafted.
+
+When in the year 773-774, Charlemagne, in pursuance of his idea of
+universal empire, and aiding the Pope as "Patricius" of Rome, entered
+Lombardy with his army, took Pavia after a siege of six months, and
+shut up Desiderius in a monastery, he found in Lombard society a well
+defined, if not a perfectly developed system. In all their relations
+with other nations, the evidence of history proves the Franks to have
+been a conquering rather than a colonizing race; consequently we may
+expect to find that in their conquest of Lombardy, they rather gave
+her only new rulers without materially interfering with the condition
+of the inhabitants or altering their mode of life. The institutions of
+the Frankish nation were similar, in many important matters identical,
+with those of their neighbors across the Alps; so the changes
+introduced into the Lombard system by the Carlovingian rule are, with
+a few exceptions, not such as affect the integral structure of
+society, but for the most part only such as refer to the character and
+position of the central or ruling power.
+
+I say with a few exceptions, for among these very exceptions are to be
+found certain alterations in the government of the cities, introduced
+chiefly by the necessities of the system of central government
+established by Charlemagne, but also partly by the claims of
+individuality, which at this time first began in the cities timidly to
+call for recognition. The very relation of the cities with the central
+power seems to me to be a much more important factor in their growth
+during this period than is generally supposed; for it not only secured
+to their inhabitants better chances of justice and protection from the
+powerful local rulers, but, bringing them, through certain officers,
+into direct connection with the head of the state, added not a little
+to their moral importance, a condition which in a growing community is
+always closely followed by an increase of material importance.
+According to their size they were the seats of courts of varying
+degrees of importance, and from them as centres proceeded the acts of
+royal officers, both ordinary and extraordinary. Ticinum was the
+capital, where in Lombard times the king had his palace.[9]
+
+For a satisfactory study of the development of the municipal
+institutions we need a thorough understanding of the organization of
+society at this time, and especially of the relations which the
+municipal and rural communities bore to one another and to the
+government. I will endeavor to give, therefore, a description of
+Lombard society about the close of the eighth century, as brief as is
+consistent with a clear understanding of these relations, and as
+complete as the great difficulties of the subject will permit,
+pointing out, whenever they are authentically traceable, the changes
+introduced in consequence of the Carlovingian conquest.
+
+When we reach in Lombard history the period when the power of the
+native kings was first overthrown by foreign arms, we are no longer
+confronted by many of the problems which necessarily formed an
+important part of the earlier portions of our investigation. I mean
+the problems which arise in a state of society where the mass of
+individuals forming it is made up of two elements, a conquering,
+dominant one, and a conquered, subject one. During the two centuries
+elapsed since the Lombard barbarians conquered Italy, the two races,
+originally so different in their ideas and in their character, so
+opposed in their customs and in their nature, have been slowly but
+surely blending together, on the strength of common environment and by
+the necessities of mutual relations: so that by the last half of the
+eighth century, we can truly say that national differences, as such,
+have disappeared, and left behind them a single race, a combination
+but still a unity. We no longer have to deal with a double
+nationality, with the northern conquerors and their southern victims,
+with the oppressed and their oppressors. In considering the
+development of the institutional life of the people, we need no longer
+seek for differences, but may assume the easier task of tracing
+similarities. In a word, we no longer speak of Lombards and of Romans,
+but describe all that remains of both by the new word _Italians_.
+
+It is not within the scope of this enquiry to trace the various steps
+or indicate the various influences, the civilizing effect of the
+Church, the restraining power of the law, by which this complete
+amalgamation of two distinct races became an accomplished fact; we
+need only to note that the unity of the race was achieved. Even
+Macchiavelli recognizes this fact and, speaking of the time of the
+Carlovingian conquest, in the brief review of the history of all Italy
+which forms the first part of the first book of the "Florentine
+History," he truly says that, after two hundred and twenty-two years
+of occupation by the Lombards, "they retained nothing of the foreigner
+save the name."[10]
+
+But we must always bear in mind that it was not a process of
+absorption of one race by another, but a process of combination, of
+amalgamation; a levelling process, by which some members of the
+conquered people, by natural and economic causes, were raised to the
+level of their superiors; and on the other hand, some of the
+conquerors, by reason of similar causes, fell to the rank of the
+subject population. By manumission and by the various forms of
+vassalage more or less honorable, and by gaining some economic
+importance by trade and other means, many of the descendants of the
+Roman population gained admission to the ranks of the Arimanni, and
+obtained the full franchise by the possession of landed property. By
+forfeitures, consequent poverty and ultimate pauperization, many of
+the Lombard stock lost their rank and their lands and entered the same
+state of vassalage with the great body of the people. We see evidences
+of this change, this levelling up and levelling down, all through the
+military code of Liutprand, and in the later one of Aistulf can even
+more distinctly trace its progress; and without entering into further
+detail, we can definitely state that, by the time we are now
+considering, all traces of distinct race-origin had disappeared in the
+mass of the people, and the only safe distinction that we can draw is
+to say that among the families of the dukes and greater nobles, the
+Lombard stock was preserved comparatively pure, and that the serf
+population was, generally speaking, of Roman descent.[11]
+
+
+                       KING
+          +--------------+--------------+
+          |              |              |
+        COUNTS         DUKES         GASTALDS
+                         |
+          +--------------+--------------+
+          |              |              |
+        CUTANEI       SCABINI       SCULDAHIS
+     (LATER BARONS)
+      | | | | |
+      | | | | +-------------------------------+
+      | | | +-------------------------+       |
+      | | +-------------------+       |       |
+      | +-----------+         |       |       |
+      |             |         |       |       |
+     ARIMANNI       |         |       |       |
+                 MASNADA      |       |       |
+                            ALDII     |       |
+                                    SERFS     |
+                                            SLAVES
+
+     The above table, while its divisions must not be taken too
+     literally, will, I think, give some indication of the
+     estimation in which the various classes of society were
+     held. It is too early yet in the development of the feudal
+     system to say that the derivation lines show the course of
+     an absolute feudal tenure, and they are not meant for that
+     purpose, but simply to indicate the succession of the
+     inequalities of rank.
+
+Turning now to the territorial divisions of the country at this
+period, we find them practically unchanged. The _civitas_ still stands
+as the sectional unit; the territory with its city still represents
+the administrative division of the state. It is fundamental to a
+correct understanding of the early development of communal
+institutions that we should have a thorough knowledge of the meaning
+of this term _civitas_; of the extent of its application and of its
+limitations. I used the words "territory with its city" in defining
+the administrative division of the state, and perhaps this term
+describes the _civitas_ better than any single word would do. In the
+Roman municipal system we have the city with its surrounding
+territory, over which extends the jurisdiction of the _curia_; in the
+Lombard system we have the territory, the land, in some part of which
+is located a city, a fortified place.
+
+This is to my mind the important point which settles satisfactorily
+the vexed question of the dominance or the disappearance of Roman
+influences. The institutions of the Lombards were similar in character
+to those of the other Germanic races, and the continuance of any
+overruling municipal influence among them would have done violence
+alike to their traditions and to the nature of their race. The old
+municipal predominance as a system disappeared, the old municipal
+divisions and many of the minor forms and offices as a fact remained.
+It is these latter which give some color to the arguments of writers
+like Savigny,[12] who endeavor to maintain the continuance of the old
+Roman _curia_. They find evidence of the continuance of old
+boundaries, of many old names and many old executive functions, and
+fail to appreciate that the principle which lay back of and was making
+use of these old forms as convenient channels for the expression of
+its power and of its control, was an entirely new one, based on ideas
+fundamentally opposed to those of the civilization it had conquered.
+This slight warning is necessary so as to avoid any error in the
+conception of the significance to be attached to the geographical
+limits of the divisions of territory we are considering.
+
+The word _civitas_ has the same signification as _comitatus_, when
+that word was used with the meaning of a territorial division; and
+included all the territory, with its lands, its villages, its
+fortified places and its city, which came under the jurisdiction of a
+_dux_ or _judex_, or in Frankish times of a count, when we are
+strictly justified in giving it the more familiar name of _county_.
+From this we trace the Italian word _contado_, by the steps _comitatu,
+comitato, contato, contado_. The land division here indicated is
+indifferently called in the Lombard records _territorium, fines,
+civitas_, or _judiciaria_. The identity of all these terms admits of
+easy proof from all the documents, public and private; and numberless
+instances could be cited showing an interchange of terms in describing
+the same locality.
+
+I will mention in illustration of this fact the rather neat example of
+a document of the year 762, published by Brunetti[13] in his Codice
+Diplomatico Toscano, in which three of these terms are used
+interchangeably in the space of a few lines. It is a contract by which
+a certain Arnifrid, an inhabitant of Clusium--the modern Chiusi--who
+"in clusino territorio ... natus fuit," pledges himself to live on a
+certain property, and says "nullam conbersationem facias nec in clusio
+nec in alia civitate habitandum, nisi.... &c.," and promises to pay
+fifty _solidi_ if "pro eo quod ipsa pecunia demittere presumbsero aut
+de judiciaria vestra suaninse exire voluero." The contract is "Actum
+in civitate suana." We here see the words _territorium_ and _civitas_
+both applied to the territory of Chiusi, and the words _judiciaria_
+and _civitas_ both applied to the territory of Siena, and we only need
+to remember that things which are equal to the same thing are equal to
+each other, to recognize the identity of the terms. If we look at
+document number eight in the same collection,[14] we will further see
+the territory of Chiusi referred to as "fines clusinas."
+
+Hand-in-hand with the growth of episcopal organization we see another
+term coming into use in connection with the same land division, and
+this also is an administrative one, but of the church simply, and only
+made use of by conversion or carelessly when applied to a civil area.
+I mean the _districtus_, which term is properly applicable only to the
+jurisdiction of a bishop, and designates the limits of his episcopal
+power, that is, his diocese. The reasons for this term being used in
+later times occasionally for the civil division, the _civitas_, are
+twofold. They result, firstly, from the confusion which arose between
+matters of civil and ecclesiastical jurisdiction, when political power
+was given to a large number of the bishops, and when they united to
+their religious duties as pastor, the judicial and sometimes even some
+of the military duties of _comes_ and _judex_. And secondly, in the
+important fact that in almost all cases the boundaries of a bishop's
+diocese coincided more or less exactly with the limits of the
+authority of the state officers; so that the division which should be
+called a _civitas_ or _territorium_ from the point of view of civil
+government, should be called a _districtus_ from that of
+ecclesiastical government.
+
+Where we find at once the most important and, if not rightly
+understood, the most perplexing traces of the survival of the old
+Roman municipal system, is in this matter of territorial boundaries.
+According to the Roman system, as we have seen, the city was the
+important administrative unit, and each city was surrounded by a belt
+of rural lands, more or less large according to the size and
+importance of the city itself. This of course resulted in a division
+of the whole country into a number of districts whose boundaries were
+definitely marked, perhaps even jealously guarded. Now, when the
+Lombards took possession of the country, while they rejected the
+principle of the municipal unit, as foreign to the character and
+instincts of their race, they could not fail to see the practical
+utility of using, and the actual difficulty of overthrowing, a system
+of land division which custom and authority had united in rendering
+alike definite and convenient. What was the result? They made use of
+the old boundary lines, leaving their limits, as far as we can judge,
+untouched, and substituted as the fundamental principle of their
+administration, in place of the Roman idea of the _municipium_, the
+thoroughly Teutonic idea of the _civitas_ or country district.
+Coincident with these time-honored boundaries which served to mark the
+limits of the jurisdiction of the duke and the _judex_, are to be
+found those of the ecclesiastical power, of the bishop's diocese.
+
+This statement is confirmed by the many charters, immunities, etc.,
+addressed to the episcopal authorities; and direct proof of it may be
+had by reference to the controversy which arose in the first half of
+the eighth century between the bishops of Arezzo and Siena, which
+dispute was based on the fact that for reasons definitely stated these
+two dioceses formed an exception to the general rule. The strength of
+the proof lies in this exception, which had a well-known cause for its
+origin. Some of the documents[15] in the case, of the year 715, show
+that the bishop of Siena claimed for his jurisdiction certain churches
+which belonged to the diocese of Arezzo, basing his claim solely on
+the ground that these churches were situated in the _territorium_ of
+Siena. The bishop of Arezzo, on the other hand, claims them as part of
+his diocese, on the ground that they had formed part of it ever since
+the beginning of Lombard rule in Italy; and--which is the part of
+importance to us--gives as the only reason for their having been
+attached to the diocese of a neighboring _territorium_, the fact that
+at that early date there was no bishop in the _territorium_ of Siena.
+That a claim of such a character should have been based on the
+argument of the natural coincidence of the boundaries of _territorium_
+and diocese, is sufficient proof of the identity of these limits at
+that age. In a bull of the year 752,[16] Pope Stephen II. decides to
+adhere to the already existing diocesan divisions, and adjudges to the
+bishop of Arezzo the churches "quae esse manifestum est sub
+consecratione et regimine praefatae S. Aretinae Ecclesiae, territorium
+vero est prefatae nominatae Civitatis Senensis."
+
+We see then the perpetuation of the old Roman land divisions in the
+new commonwealth through the medium of the _civitas_ and the diocese.
+How long these divisions remained intact and what were the causes and
+the extent of their final overthrow, forms part of the history of the
+later development of the Italian communes. Here I will simply indicate
+the fact, that among the reasons which led in most instances to a
+departure from this system of land boundaries, are to be found some of
+the most important causes for the development of freedom and
+independent jurisdiction among the cities. It is to the destruction of
+this identity of interests and of government which existed between
+country and city, that is owed the ultimate predominance of the
+latter, and its regaining its ancient position of a self-centered
+unity; although in its new form we find this depending on the
+principle of individual liberty, instead of being based on the
+principle of government by a central power. Whether this emancipation
+from the bonds of a rural dependence was brought about by the practice
+later entered upon, of breaking up the counties into a number of
+smaller units with the so-called "rural counts," each ruling over a
+_castellum_ or fortified village; or by the fact that many of the
+bishops obtained political as well as religious control over a city
+and a limited area of the surrounding country, generally extending
+only three or five miles beyond the city walls; or whether this
+freedom was the result of the spontaneous growth of civic and economic
+life within the city itself; or finally, whether it came from a
+combination of all these and many minor causes, is a question
+which--for the early period of the development at least--the progress
+of our investigation will answer for itself.
+
+It will, however, be impossible for us to understand thoroughly the
+relations of the city under Lombard and Frankish rule to the central
+and to the local government, unless we know somewhat of the local and
+state officers who exercised jurisdiction within the territorial
+limits just described. By a consideration of their special powers and
+of their special duties, we must learn all that we can know with any
+degree of certainty with regard to the position of the city in these
+times. With this in mind, let us first examine the office whose
+functions it is at once the most difficult and the most important for
+us to understand in all its bearings--that of the _Judex_. We must
+consider it not only in the relation which it bears to the higher
+grade of officers, the Lombard duke and the Frankish count, but also
+in its relation with the lower officials who severally enjoyed more or
+less of the powers attached to its possession, namely, the gastald,
+the sculdahis, the scabino, and even the rural counts and the bishop.
+And in tracing its development we must note the influence it bore on
+the growth of the municipal idea, and also its connection with the
+political jurisdiction, commonly combined with it in the person of a
+single official.
+
+In considering the institutions of a comparatively crude state of
+society, such as existed in Europe in the early middle ages, it is
+misleading if not impossible to differentiate to any great extent the
+various functions and kinds of power which were commonly centered in
+the same individual. Consequently the only safe way to give a clear
+idea of the position and the powers of the _judex_, is to give a
+description of the various offices to which judicial authority was
+attached, in degrees more or less complete, corresponding to the
+social and political importance of the person exercising this
+authority.
+
+In the Lombard system, at the head of each _civitas_, as lord and as
+judge, was the _dux_, or duke. His title and his office being but the
+relic of his original high position of leadership in the army of the
+invasion, when his command was only subject to that of the king, the
+leader-in-chief of the army-nation and head of the military
+constitution, he held directly from the king, attended the royal
+_placita_ as the king's vassal, and held _placita_ of his own within
+his own jurisdiction, and over which he presided in person. Beyond the
+duties of his own particular jurisdiction his chief office was to
+assist the king by his presence and his counsel, when the king gave
+his judgments at the annual assembly in March, at the capital Ticinum.
+The importance of this concurrence of the _judices_ in all the king's
+decrees and official acts is illustrated by the fact that cases are
+rare in which this concurrence remains unmentioned. The usual practice
+is to introduce in the prologue which is commonly attached to the laws
+given out during each year of the king's reign, after the mention of
+the date "Kalendiis Martiarum," some such expression as "cum nostris
+Judicibus";[17] or "ad nos conjungerentur Judices";[18] or "per
+suggestionem Judicum";[19] to which is sometimes added the formula
+"omniumque consensum,"[19] or "cum reliquis nostris Langobardis
+fidelis." That legislation was not considered valid until such consent
+and advice was obtained, we can see from the prologue to the laws
+issued in the thirteenth year of the reign of Liutprand, in which he
+refers to certain important "causae" which had come under his
+jurisdiction, and for which additional legislation was necessary, the
+laws already existing failing to reach them. To meet the exigency new
+laws are enacted, but the king especially states that the cases must
+remain in abeyance until the new laws are confirmed by the _judices_
+at the next assembly in March. In speaking of these "causae" in the
+above-mentioned prologue to the laws, he says: "Proinde providimus eas
+usque ad suprascriptum diem Kalendii Martiarum suspendere dum usque
+nostri ad nos conjungerentur judices," etc.[20] This attendance at the
+royal _placita_ represents the most important of the legislative
+duties of the _judex_ outside of his own jurisdiction.
+
+Of other duties which caused him to leave the seat of his authority,
+the only ones we need here consider are his military duties; and with
+regard to these it will be sufficient to point out that the _judex_
+was the leader in war of the vassals and lesser lords, and indeed of
+all the inhabitants of the _judiciaria_ who were entitled or
+compelled, by the forms of their tenure, to bear arms. Ample proof of
+this is to be found throughout the law codes, but we need not pause to
+cite such confirmation, if we remember the natural evolution of the
+office of _dux_ from his position in the original Lombard military
+system. As a good example of this military leadership we may refer to
+the provisions of the twenty-ninth law in the sixth book of the laws
+of Liutprand.[21]
+
+What is of the greatest importance to us, however, in bringing out the
+relations of the cities to the rest of the community in Lombard and
+Frankish times, is the position of the _judex_ as duke and as count
+within his own _judiciaria_, that is, within the _civitas_ of which he
+was both lord and judge. It was through him, or perhaps I should say
+chiefly through him, that the city was at this period connected with
+the state; and it was principally by the exercise of the functions of
+his office that the city formed a part of the state. His official
+residence, in the majority of cases, and his courts, were situated
+within the city's limits; thus making the official machinery of
+government a part of the city life, and causing the city to become an
+actual if not a legally recognized part of the constitution of the
+state. As far as this investigation is concerned, this represents the
+prominent feature of the power and position of the head of the
+_civitas_. We must be careful, however, to avoid any confusion of
+ideas as to the importance which it gave to the city as a municipal
+unit or as a corporation. It was in no way what we could call a
+municipal government, even admitting a rather loose interpretation of
+the term, as the supporters of the theory of the survival of the Roman
+curial system would have us believe.[22] The _judex_ may be called
+"the highest municipal officer among the Lombards," and this
+designation still be correct, though perhaps misleading. He was the
+highest officer of the locality, and his official duties were for the
+most part carried on within the city; but the leading fact we must
+keep prominently before us is, that he was the head of the whole
+_civitas_, and not in any sense of the city as such: and further, that
+his powers over the rural portions of the _civitas_ were in no sense
+added to any purely municipal powers he may have possessed; but, on
+the contrary, if we are to draw any distinctions, the municipality
+formed a part of the land division. That the whole _civitas_ was
+commonly named after the largest town contained within its borders,
+and that the seat of power was generally placed within the city walls,
+are facts too evidently brought about by motives of convenience and
+expediency and by the force of old association, to lead to any
+confusion in appreciating the proper place of the city. Where there
+were to be found buildings suitable for the residence of the _dux_,
+and where was located the largest collection of individuals, was
+manifestly the most appropriate place for holding the courts and
+settling the disputes of the inhabitants of the whole _civitas_, and
+this formed a natural centre for the machinery of government. But
+every inhabitant of the _civitas_ had equal rights with the townsman
+proper, and, as in the old Greek [Greek: polis], the most remote
+countryman dwelling on the borders of the _civitas_, if he possessed
+the franchise, was as much a citizen of Padua, Siena or Milan, as if
+he dwelt within the walls of the city which gave its name to the whole
+_civitas_.
+
+A consideration of these facts brings out two important points, which
+I will briefly indicate before passing on to a little more detailed
+treatment of the powers and the duties of the _judex_. In the first
+place it has been made clear that at the time under discussion nothing
+that could correctly be called a "municipal system" existed in
+Lombardy, and the city, _as such_, had no independent existence or
+independent relations with the state. And secondly, it cannot but be
+manifest that the position that the city did occupy as actual, if not
+necessarily as legal, centre from which issued all the administrative
+functions of the district, the residence of the chief authority and
+the seat of his courts, would have a marked tendency to increase
+slowly, perhaps imperceptibly at first, the importance of its position
+at once in the _civitas_ and in the state, and at the same time to
+improve the character of its inhabitants and in time increase their
+wealth. That this ultimately came about the development of the later
+independent communal life is a proof, and the tardy steps by which
+this was attained but serve to show the difficulties consequent on so
+slight and so feeble a beginning.
+
+The obscurity which promptly descends on the brain of the intelligent
+reader who endeavors to gain a clear idea of the state of society or
+of the administration of government in these early ages of Italian
+history, makes the careful student very skeptical of any precise
+presentation he may find of them, and causes him to be particularly
+cautious and proportionately diffident in making, himself, any very
+definite statements concerning them. If he be a wise man and wish to
+make his investigation of some use to others, he frequently says "it
+seems probable," and he particularly avoids mentioning dates which are
+fixed and immovable. If this may be said of all matters not belonging
+simply to the narrative portions of history at this period,
+particularly true is it of the different functions attributed to
+various officers of local government, whose very titles we sometimes
+have to infer from their duties, and whose duties we often have to
+infer from their titles.
+
+To these the _judex_, though the most prominent, cannot be said to
+form an exception. That he was the head of the district judicial
+system has in part been already shown, and will come out more clearly
+when we come to define the powers of some of his subordinates. His
+leadership in war we have seen to be but the natural continuance of
+his original office; and that as _dux_ he was to be ranked among the
+first nobles of the land, the "optimates," the "viri illustres," we
+can see from the following passage in the laws of Liutprand, when in
+the prologue to the third book already quoted, he gives forth the
+edict with the judges as "una cum illustribus viris optimatibus meis
+ex Neustriae et Austriae et Tusciae partibus vel universis nobilibus
+Langobardis."[23] Although the position of the _duces_ as nobles of
+the land never altered, their power relative to that of the king
+suffered many modifications. The ducal power--"principes" of
+Tacitus--preceding among the Lombards that of the king, we see the
+dukes exercising much greater control in the earlier stages of the
+monarchy: even, on the death of Clefis--576--actually establishing a
+sort of aristocratic republic, under the leadership of thirty dukes,
+which lasted for ten years; after which time, on the event of a
+dangerous war with the Greeks and the Franks, Authari, the son of
+Clefis, gained the throne by election; the dukes giving up to him,
+says Paulus Diaconus,[24] the half of their estates for the support of
+his dignity, retaining, however, the rest, not as servants of the
+king, but as "principes" of the people, an important distinction.
+Agiluf--591 to 615--originally duke of Turin, met with much opposition
+from the power of the dukes; but when we come to the time of
+Rhotari--636 to 652--we find their power already declining, and in the
+eighth century, as for example under Liutprand--712 to 736--the laws
+show them reduced to the position of the other _judices_, but still
+representing a high aristocracy whose consent was, as we have seen,
+necessary to all acts of the king.
+
+The most important of the functions of the _dux_ as _judex_ was
+holding the _Curtis Regia_ or _Curtis Ducalis_, in the largest city or
+"urbs" of every _civitas_. Here, in conjunction with his subordinates,
+he heard all cases which did not go up to the king for judgment, and
+here was centered the fiscal administration of the _civitas_. To
+describe in detail the composition of these _curtes_, their
+jurisdiction and methods of procedure, would require a whole chapter
+of no mean proportions, and however interesting in itself, would be
+out of place in the present investigation. All that it is needful for
+us to consider is the relation of these _curtes_ to the municipalities
+in which they were located. Of their location within the city walls
+the proofs to be found in numbers of the old documents are to me
+conclusive. I will give a few examples, however, commencing with two
+from the documents which have already been quoted from Brunetti,
+relating to the dispute between the bishops of Siena and Arezzo. In
+the first of these[25] we see that in the year 715, the king's
+_majordomus_ Ambrosius interferes "in Curte a Domini Regis" at Siena,
+in opposition to the local bishop and gastald; and in the second[26]
+we find the royal notary Gunthram forbidding a fresh examination of
+witnesses "in Curte Regia Senensis." In a document of the next
+year[27]--716--we find "Ebugansus, Notarius regiae Curtis," taking
+part in the procedure in a case between the bishops of Pistoia and
+Lucca; and a little later, in the year 756, is mention of an exchange
+of property between "civitis regia lucencis" and the church situated
+in that city.[28] In the "Opusculum de Fundat. Monast. Nonantulae,"
+published by Muratori,[29] we find a donation by King Aistulf to that
+monastery: "prope castellum Aginulfi, quod pertinet de curte nostra
+lucense, et duas casas masaritias de ipsa curte"; and "granum ilium,
+quod annue colligitur de portatico, in Curte nostra, quae sita est in
+Civitate Nova."[30] In Carlovingian times Charles the Bald, in the
+year 875, in the "Chronica Farfense,"[31] appears as saying, "in Curte
+nostra infra Castrum Viterbense": elsewhere "curtis regie Viturbensis"
+is spoken of[32]: and later, in 899, Berenger gives to the bishop of
+Florence "terram ... pertinentem de curte Regis istae Florentiae"[33]:
+and finally, not to multiply examples, I will mention a privilege of
+Karloman's, published by Ughelli[34], by which he gives to the bishop
+of Parma certain regalia: "id est curtem regiam extructam infra
+civitatem Parmam cum omne officio suo," etc. From even these few
+instances we can see the connection between the _Curtis Regia_ and the
+city which gave its name to the _civitas_, a connection the importance
+of which we must not fail to appreciate, in consideration of the great
+influence which it exercised in the future development of the
+municipal unit from a beginning so insignificant.
+
+Of some importance in connection with the early history of the cities
+are the questions which arise in relation to the fiscal duties and
+privileges of the _curtes regia_ and its officers. In it was centered
+the fiscal administration of the kingdom; and its officers, in the
+various grades from the _dux_ downward, received and were responsible
+for the revenues of the state. So prominent a part belonged to this
+form of the functions of the _curtes_ that it is quite common to hear
+the revenues themselves, by a transposition of terms, called by that
+name, or by that of _palatium_, a word sometimes found even for the
+_curtes regia_ in their proper general sense; but this, from what I
+have been able to gather concerning its legitimate use, should
+properly be applied only to the residence, or by conversion the
+revenues of the king himself[35]. What is of interest to us in this
+matter is the fact that the _curtis regia_ fell heir to the _publicum_
+or communal property of the old Roman _curia_, when these were
+overthrown by the Lombard conquest.
+
+In considering this phase of civil administration under the Lombard
+system, we are again brought face to face with the old question of the
+survival or non-survival of corporate existence among the cities. For
+if it could be proved that the municipality in its corporate capacity
+retained the communal property and administered it, there would appear
+to be good grounds for the assertion of the continuance of some form
+of quasi-independent municipal government; but if, on the other hand,
+it were found that the property of the municipality passed to the new
+head of local administration or to the central power, it would be
+evident that the continuance of the municipal system as such was a
+logical impossibility; for, deprived at once of its property and of
+its revenues, it would have had no vitality to keep it from a speedy
+end.
+
+In investigating a question of this nature from the sources at our
+disposal in a period of history so obscure, we cannot expect to find
+any definite statements sufficiently precise to set at rest at once
+all opposition and discussion; but after considering the character of
+the people we are investigating and studying their institutions, and
+after a careful examination of the laws and records which form the
+sources of our information, we are, I think, in a position to be able
+to give a sufficiently decided opinion as to whether a particular set
+of facts or conditions could possibly have existed in a state of
+development and in a society of a given character. Thus it is in
+regard to the matter in hand. From the numberless cases in which the
+_publicum_ is mentioned in the documents from which we draw our
+materials, it seems to me possible for a critical examiner to come to
+but one conclusion, if, as is quite essential, he take into
+consideration the unmistakable spirit of these writings, and if he
+give a legitimate interpretation to the various terms employed. To
+cite in direct proof any individual instance is, perhaps, impossible;
+but indirect evidence is forthcoming in abundance, and of a character
+to be, to me at least, entirely conclusive. The conclusion reached is,
+then, that the king and the dukes were the successors of the old
+_curia_ in the possession and the administration of all properties and
+revenues, taxes and fines formerly belonging to the organized
+corporations of the Roman municipalities, and that the _curtes regiae_
+were the channel through which these were collected, divided and
+expended.
+
+The grounds on which this assertion is based are the continual
+recurrence of examples of functions of a fiscal character being
+exercised by the head of the _civitas_ and his officers, and by them
+alone; and it appears to me that it could only be by a complete
+misunderstanding of the spirit of the early writings, and by a
+comprehensive misapplication of the terms used in them, that these
+functions could be referred to any other power. These functions of the
+administration may be grouped under three main heads, viz: 1. Fines
+and forfeitures, which, of course, played a very prominent part under
+the Teutonic system of composition for offenses of a criminal nature;
+2. Taxes and privileges, by which is meant feudal rights, dues, etc.;
+and 3. Buildings and lands belonging to the crown or to the head of
+the _civitas_ as a public officer.
+
+Of the fines and forfeitures paid into the _publicum_, we find that a
+part went to the royal treasury and a part to the _judex_, and in some
+cases to the informer or the prosecuting officer; and at different
+times we find these proportionate amounts definitely defined--as, for
+instance, in the time of Charlemagne two parts went to the king and
+one part to the count who acted as _judex_;[36] this we know from two
+of the Lombard laws of that emperor.[37] In one of these,[38] speaking
+of those who evaded military service, he says: "Heribannum comes
+exactare non praesumat: nisi Missus noster prius Heribannum ad partem
+nostram recipiat, et ei," the Count, "suam tertiam partem exinde per
+jussionem nostram donet."[39] We even find evidence of quite a large
+amount of liberty used by the _duces_ in the ultimate disposal of
+property coming under their jurisdiction by forfeiture, the more
+powerful making use of it precisely as if it were private property.
+For example, in the Chronica Farfensis[40] appears a case judged by
+Hildeprandus, _dux_ of Spoleto, in the year 787. A certain nun named
+Alerona, for having married a man named Rabennonus, "secundum legem
+omnis substantia ipsius ad Publicum devoluta est"; a little later
+Rabennonus, for having killed a man, "medietas omnis illius
+substantiae ad Publicum devoluta est." In consequence, in poetic
+justice and for the good of his soul and the king's, Hildeprandus
+quite arbitrarily presents "omnem praedictam illorum substantiam,
+qualiter secundum legem juste et rationabiliter, ad Publicum devoluta
+est," to the Monastery of Farfa "pro mercede Domnorum nostrorum Regum
+et nostra." Here, as in many other cases, we see the _dux_ making
+gifts of property belonging clearly to the _publicum_, to persons
+favored by him and for his own benefit. Such a condition of affairs
+would certainly never have existed had public property been
+administered by authority other than that of the _dux_.
+
+With regard to the revenues falling under the second of the rough
+divisions we have indicated--taxes and privileges--it is easier to see
+why differences of opinion should have arisen; for here, especially in
+matters relating to the collecting of taxes and dues, we are
+confronted with the names of a large number of lesser officials and
+subordinates of the _judex_, some of which are undoubtedly taken from
+the like officers existing in the old Roman curial system. But this
+survival of names, and in some instances of offices, need cause us no
+alarm, for it coincides exactly with the theory presented, namely, a
+continuance of many of the old _forms_ of administration controlled by
+an entirely new _principle_ of government. There are certain minor
+functions necessary for the support of the state which must be carried
+on in much the same manner, whatever be the character of the governing
+power--certain subordinate offices whose duties must be performed
+under a republic or under a despotism. Taxes may be collected by
+widely differing methods under the two systems, but there must always
+be the tax collector and the tax assessor. We can, however, see at a
+glance the weakness of any argument which contends that because the
+name and even the general duties of the tax gatherer were the same in
+each case, that the whole system of administration of the taxes or of
+the community were necessarily identical or even closely allied in
+character.
+
+It is here we see the weakness of those writers who insist upon the
+continuance of the Roman _curia_ in the municipalities of the Lombard
+kingdom. They seize upon a few names, relics of Roman rule, and from
+them generalize a complete system of taxation and administration. That
+the existence of any such system is alike contrary to fact and to the
+whole nature of the Lombard people, any critical and impartial study
+of the sources of government revenues at this time will make clear. It
+would be out of place to burden a paper of this character with the
+results of a minute investigation into the fiscal relations of the
+rulers and the people when this has no immediate connection with the
+development of municipal government; but I will state that a careful
+examination of all available sources, including documents and
+statutory enactments, both public and private, reveals, to my mind, a
+theory and a system of raising the revenues of the state closely
+allied in both principle and detail to feudal forms and feudal ideas,
+and having little in common save the names of a few of its officers,
+with the ancient methods of collecting the taxes peculiar to the Roman
+municipal constitution.[41]
+
+In general terms, the collectors of the revenues were called
+_telonarii_, or _actores, exactores_ or _actionarii_, etc., and the
+taxes they collected were the usual feudal dues, fines, forfeitures,
+compositions for service, etc. The nomenclature of these various
+officers and of the different duties they had to levy, varying as it
+did with regard to locality, and more especially with regard to
+time--the Franks introducing an entirely new set of names for
+institutions often identical in character to those displaced--presents
+an amount of confusion which, fortunately, it is not necessary for us
+to endeavor to penetrate; but, having stated the foregoing general
+conviction with regard to the fiscal system, we will now pass on to a
+consideration of some of the lesser offices held within each _civitas_
+by the deputies and subordinates of the _dux_. These, of course, were
+connected, in degrees more or less close, with the different _curtes
+regiae_, and with the _placita_ held in the various _civitates_
+commonly about three times in the year. Some of the officers, like the
+_vice-comes_ found to have existed in many localities, are simply
+deputies of the _dux_, or representatives of his person, and hold
+their office simply by virtue of his will and under a somewhat
+arbitrary tenure; others, like the gastald, the _sculdahis_, and later
+the _scabinus_, represent offices which formed an integral part of the
+constitution of the government, and appointment to which, whether made
+by the _dux_ or by the central power, involved a necessary duty of a
+determinate character. An accurate determination of the relative
+positions of these various minor officials, of the extent of their
+jurisdiction and of its limitations, presents one of the most
+difficult problems which the student of these dark ages of history is
+called upon to solve. The peculiar character of the sources from which
+we have to derive all our information makes it quite possible for all
+writers on the subject to disagree with regard to details, and leaves
+a wide margin for discussion even on the important characteristics of
+the various offices. Avoiding as much as possible the points of
+controversy, I will endeavor to give the general features of the more
+important of these offices, the conclusions given in each case
+resulting from an examination of the different theories held and of
+the sources on which these are based.
+
+The officer who seems to have ranked next in importance to the _dux_
+within the limits of the _civitas_ is the gastald, who goes
+indifferently by the name of _gastaldus, castaldius_, or _gastaldio_.
+His powers were of a judicial character, and he shared with the _dux_
+the title of _judex_; but whether he enjoyed the full prerogative of a
+_judex civitatis_, or whether his judicial functions were of a more
+limited character and referred exclusively to matters of a fiscal
+nature belonging to the _curtis regia_ or the _camera_ of the king, is
+a question to which the evidence to be gathered from the law codes
+gives no decided answer.[42] It seems probable, however, from the
+importance seemingly attached to the holders of this title in the many
+cases in which they are mentioned in the old laws and documents, that
+their jurisdiction was of a broader character than would be implied by
+a restriction to purely fiscal functions; in fact, that it approached
+more nearly to the power of the _dux_ and _judex civitatis_, though
+being in some way of less extent or possibly supplementary to it.
+Perhaps the distinction would come out more clearly if we said that
+the office was characterized by its relations to the fiscal functions
+of the state, but that its duties and privileges appear not to have
+been restricted to affairs of that nature. It is certainly true that
+very many instances occur in which the duke and the gastald are
+alluded to, whether in laws or in contracts, in precisely the same
+terms and in positions which would seem to indicate an almost perfect
+equality of dignity. As, for example, in a meeting between Liutprand
+and Pope Zacharias, described by Anastasius Bibliotecharius,[43] where
+dukes and gastalds are together reckoned among the _judices_: here the
+king goes to meet the pope "cum suis judicibus," and gives him as an
+escort "Agripandum ducem Clusinum, nepotem suum, seu Tacipertum
+Castaldium et Remingum, Castaldum Tuscanensem." In spite of this
+apparent equality, however, it seems to me nearer the truth to
+consider the position of the gastald as an inferior one to that of the
+_dux_, especially in Lombard times, before that official was replaced
+by the _comes_ of the Carlovingians.
+
+The important point which it is necessary to emphasize in this
+connection is the fact that the gastald held his tenure, not from the
+_dux_ as his subordinate, but from the king in person, and for this
+reason can more fitly be compared with the later count than with the
+_dux_ of the Lombards. Consequently it is in the matter of tenure that
+I think is to be found the difference in power between the two
+officers. In addition to his official authority, the _dux_ was
+possessed of a power and an influence entirely his own, derived quite
+as much from the number of his vassals and his position in the
+_civitas_ as from the grant he received from the king. At home he was
+a powerful lord, and though he, of course, owed fealty and service to
+the king, he was by no means a king's servant, like his successor the
+Carlovingian count. The gastald, on the other hand, was eminently a
+servant of the central power; and whether or not he was engaged
+exclusively in looking after the fiscal interests of the masters who
+employed him, he had no power and no influence except such as he
+derived from the source of his authority. He was a king's minister and
+nothing more, and we can easily appreciate that the amount of power he
+was enabled to exercise could never exceed the amount of influence in
+local affairs possessed at any particular time by the central
+government, whose representative he was.
+
+But the very nature of the source from which the power of his office
+is derived is what connects it vitally with the subject of our
+enquiry. We have seen the _dux_ as head--in the earliest times almost
+independent head--of the whole _civitas_, including rural and city
+jurisdiction. We have seen him as an official, depending from the
+king, it is true, and holding the king's _placita_ and executing the
+law, but also holding _placita_ of his own; appearing as a powerful
+local lord, and exercising almost arbitrary power in the regulation
+and the distribution of the public property of the commonwealth over
+which he ruled; in fact, a descendant of the old _duces_ of the
+Lombard barbarian host, who, perhaps, even antedating the royal
+office, held their power and their position as princes and chosen
+leaders of the people, rather than as appointees or dependents of any
+higher authority. In the gastald, on the other hand, we have an
+official of an entirely different type--one not belonging to a
+powerful class of lords or leaders which traces its origin to the
+spontaneous choice of the people or army, but one who gets his
+appointment at the will and in the interests of the central
+government, and is commissioned to exercise certain functions of the
+administration as an assistant to, perhaps even as a check on, the
+power of the local head.
+
+Such an official was naturally located at the place where the district
+courts held their sessions, and where the fiscal duties which he
+especially had in charge were most easily executed. As we have seen in
+the case of the _dux_, convenience points to the _urbs_ of each
+_civitas_ as a natural centre, and consequently here again we find the
+office of gastald as another agent in bringing the municipal division
+into prominence; but doing this, we must always remember, simply from
+the fact of convenience or fitness, and not in any sense as a matter
+of constitutional necessity. Like that of the _dux_, the jurisdiction
+of the gastald was exercised over the remotest farm of the _civitas_
+as much as over the palace in the city: _de jure_, the city gained
+nothing by the circumstance of its being the centre of the
+administration of any office; but, _de facto_, the holding of such a
+position can easily be seen to have been an important element in its
+growth and development.
+
+This fact is even of greater importance in the case of the gastald
+than in that of the _dux_, because, on account of the elimination of
+the character of local ruler, which was indissolubly attached to the
+office of the latter, the gastald brought local affairs into direct
+relation with other parts of the social system of the kingdom,
+especially connecting them with the king or centre of the whole. Such
+a connection, as may be inferred from what has just been said, while
+legally true, of course, of the whole _civitas_, had practically the
+effect of bringing the cities chiefly into relation with the rest of
+the Lombard constitution; and, consequently, some writers point to the
+office of gastald as the connecting link between municipal life and
+the new state life of the Teutonic system. This statement seems to me
+to be true except in so far as it makes the gastald the only
+connecting link. For we have already seen the _dux_ holding the same
+relation, only in a less direct manner, owing to the intrusion of
+other interests belonging to his position; and we shall shortly have
+to consider the _scabinus_, another local officer, who, under
+Carlovingian rule, accomplished even more in this direction than the
+gastald. I do not wish to fail in appreciation of the important
+influence of this office in the development of the slowly growing idea
+of individuality in the cities of Lombardy, only to point out that it
+was not the only "connecting link" between the municipal units and the
+state as a whole.
+
+In passing to a brief characterization of a few of the subordinate
+officers, I must not omit to mention the fact that the gastald had
+also certain military functions attached to his office. When called
+upon by the king he took command in the army, together with the minor
+officers who were under him in his jurisdiction, such as the
+_sculdahis, saltarius_,[44] etc. We have confirmation of this in the
+constitution "promotionis exercitus" of Lewis II.,[45] which says "ut
+nullum ab expeditione aut Comes aut Gastald, vel Ministri eorum
+excusatum habeant"; and in the life of Gregory II., Anastasius
+Bibliotecharius[46] tells that at the overthrow of the _castrum_ of
+Cumae with the help of that pope, "Langobardos pene trecentos cum
+eorum Gastaldione interfecerunt." In military affairs the command held
+by the gastald seems to have been lower than that of the _dux_, the
+leader of all the troops furnished by the _civitas_. A right of appeal
+to the _dux_ existed for the _exercitalis_ who was oppressed by the
+gastald, as shown by the twenty-fourth law of Rhotaris,[47] which
+says: "Si Gastaldius exercitalem suum contra rationem molestaverit,
+_Dux_ eum soletur." In a case of oppression by the _dux_, the gastald,
+on the other hand, could bring the matter before the king.
+
+Before considering the changes introduced by the Carlovingian rule,
+let us cast a hasty glance at a few of the minor officers who acted as
+subordinates of the _judex_ in administering the affairs of the
+_civitas_. As their relations to the urban portion of the Lombard
+kingdom, which is the special object of our study, were either slight
+in themselves or else so closely connected with those of their
+superiors as not to merit any particular description, I will merely
+mention the names of a few of them and indicate their duties. The
+officer who came next in rank to the _judex_, and who, in a
+subordinate capacity, assisted him especially in administering the
+judicial affairs of the _civitas_, was in Lombard times called the
+_sculdahis_, and in Carlovingian times the _centenarius_. Under him
+were the _saltarius_ and the _decanus_. The _sculdahis_ acted as a
+local officer under the _judex_, having limited judicial, police and
+military powers. His jurisdiction was confined to the small fortified
+towns and villages of the _civitas_, where he administered justice and
+collected fines, forfeitures, etc., in much the same manner as did the
+_judex_ in the largest town of the _civitas_; his judgments, however,
+were not final, but always subject to appeal to a higher authority:
+"Si vero talis causa fuerit, quod ipse Sculdahis minime deliberare
+possit, dirigat ambas partes ad judicem suum."[48] There were several
+_sculdahis_ in one _judiciaria_, and cases were often tried before
+more than one,[49] though each of the smaller local units seems to
+have had such an officer. Paulus Diaconus[50] speaks of "elector loci
+illius, quem sculdahis lingua propria dicunt, vir nobilis," etc.
+
+These rural divisions seem sometimes to have been called _sculdascia_,
+for we have a diploma of Berengar I., of the year 918, given to the
+monastery of Sta. Maria dell' Organo,[51] where is mentioned "pratum
+juris imperii nostri pertinens de Comitatu Veronensi, de Sculdascia
+videlicet, que Fluvium dicitur"; and in a document published by
+Ughelli,[52] in speaking of the bishops of Belluno, "Sculdascia
+Belluni" is used. In Frankish times the _centenarius_ held the same
+position as the _sculdahis_ of the Lombards: his jurisdiction was
+similarly limited to minor offences; all cases involving capital
+punishment, loss of liberty, or delivering of _res mancipii_, being
+handed over to the count's court according to the legislation of
+Charlemagne.[53] The _decani_ and _saltarii_ were subordinates of the
+_centenarii_ and _sculdahis_. They both presided over smaller local
+divisions than the _sculdascia_, and acted as deputies. In the laws of
+Liutprand,[54] speaking of a runaway slave, we are told that "si in
+alia judiciaria inventus fuerit, tunc decanus aut saltarius, qui in
+loco ordinatus fuerit, comprehendere eum debeat et ad sculdahis suum
+perducat, et ipse sculdahis judici suo consignet." The _saltarius_
+seems to have been originally a sort of guardian of forests, "custos
+saltuum"[55] or "silvanus";[56] and the name of the _decanus_, like
+the Frankish _centenarius_, is a survival of the old decimal division
+of the army and people. These minor officers, as well as other
+subalterns of the _judex_, are often met with under the common name of
+_actionarii_, which includes also the different sorts of _exactores_,
+_adores_, _advocati_, and all the lesser officials of the _fiscus_.
+
+In the course of this investigation I have already referred to, and in
+a certain measure characterized, the changes introduced into the
+Lombard system of government consequent on the kingdom being absorbed
+into the great empire of Charlemagne. I have said that, owing to the
+similarity of institutions between the Franks and the Lombards, the
+changes made consisted rather in differences in the manner of
+enforcing the control of the central power than in any alteration in
+the institutional life of the people, but that there were certain
+exceptions to this general rule, which, in their mode of operation,
+though not in the intention of their author, materially affected,
+indeed greatly accelerated, the growth of individual life among the
+cities. We must now consider the nature of these exceptions.
+
+Under the Lombard system we have seen the administrative unit of the
+state to be the _civitas_, with its administrative head, the _dux_, at
+different times enjoying a greater or less degree of independence from
+control of the central power. We have seen the _dux_ lord as well as
+judge in his own jurisdiction, and standing as the successor of the
+military leader chosen by the people, instead of holding the position
+of king's servant; this place being more properly filled by the
+gastald, who cared for the fiscal interests of the central power,
+whose appointee he was. Such a form of government, it can be readily
+seen, left no room for any strong development of the principle of
+centralization, and no scope for the exercise of any decided power or
+even of general supervision by the central authority. The heads of the
+_civitates_ were the king's _judices_, it is true, and assembled to
+assist him in judgments at his general _placita_ in the March of each
+year; but they bear the character also of local lords of no mean
+importance, and in some cases possessed of no inconsiderable amount of
+power. Such a degree of individual influence--perhaps I should
+exaggerate if I called it individual independence--was, however,
+little suited to the idea of a universal centralized empire, which was
+the forming principle of the government of Charlemagne. While
+recognizing the necessity of retaining the fundamental institution of
+a division of the state into _civitates_, and of governing it by means
+of the heads of these divisions, he wished to eliminate from these
+officers all the characteristics of local magnates, and to reduce them
+to the more easily controlled position of servants, and dependents of
+the king. This object he accomplished most satisfactorily by changing
+the dukes or local lords into counts or king's men, by appointing a
+Count of the Palace for Italy, and by extending to that kingdom the
+perfectly organized system of central control by means of the _Missi
+Dominici_, with the workings of which in the other parts of his great
+empire the student of history is too well acquainted to need any
+description here.
+
+The immediate changes in the life of the people consequent on the
+introduction of this system were not considerable, if we except a
+great improvement in public order and a marked advance in the
+equitable administration of justice; but it needs no great foresight
+to see that the ultimate effects on the position held by the municipal
+units in the community could not fail to be important and
+far-reaching. The new officer, the count, stripped of all the
+importance that his predecessor, the duke, had enjoyed as lord of the
+country over which he ruled, was placed in each city to govern, in the
+king's name, it and its _territorium_. As long as the empire of
+Charlemagne retained its integrity, and as long as the reins of
+central government were held by a strong hand and the control it
+exercised was felt to be positive and real, the change in the
+character of the local governor was of little moment; but as soon as
+the power of the central government weakened--during the inglorious
+reigns of the immediate successors of the great emperor--its hold on
+the administration of the local units slackened immediately; and in
+proportion as the vitality of the new central control diminishes, we
+see appearing the effects which must always result when the strong
+hand of an active central power is removed from a system of
+administration which had been based on the exercise of such a power.
+These effects are the increased importance--I may now say the
+increased independence--of the local units; of these local units
+themselves as distinguished from the heads who rule over them.
+
+The change had made these units more organic parts of the state than
+they had ever been before: we have seen them first made prominent by
+being the seats of the rulers of the _civitas_, and now we are to see
+them gain a more significant advance by coming into relation with the
+head of the state directly, instead of through the personal power of
+their lord. For the local ruler has yielded his individual
+pre-eminence to the central government; and when this fails to
+maintain its authority, in any community whose inhabitants are capable
+of fostering the seeds of independence once sown, it is difficult if
+not impossible for a successor to repossess himself of the privileges
+which have been forfeited. In any state where the seat of central
+authority is distant or its power only exercised feebly and at
+intervals, the local units secure much greater independence and
+importance, through the very necessity of performing many functions
+left unheeded by the ruler of all; and if the people are self-reliant
+in character, they will in time develop a sort of self-government
+which, although it would not at first think of questioning the
+theoretical right and overlordship of the central power, will
+eventually brook but little interference with its modes of procedure
+and with its exercise of functions, which the lapse of time has
+transformed from enforced duties into jealously guarded privileges.
+
+This is the keynote of the later history of the Italian cities. This
+it was, and not any real lack of patriotism, which made them choose a
+German emperor instead of an Italian king. There was no room at that
+time for the idea of Italian unity, as we now understand it: the
+nature of the people alone would have rendered such a thing
+impossible, even if we leave out of account the fact that Italy was
+the meeting-ground of the two great powers of the mediaeval world, the
+Pope and the Emperor. Italy then must have had two masters, or have
+been the slave of one. The same spirit of civic independence which
+caused the development of Ancient Greece by preventing the universal
+rule of one power, caused the Italians, under different conditions, to
+pit one master against another to attain the same end. Even Liutprand,
+the old historian of the tenth century, recognized this. In the first
+book of his "Historia" he says: "The Italians wish always to serve two
+masters, in order to restrain one by means of the terror with which
+the other inspires him."[57] By means of holding in their hands the
+balance of power they hoped to rule their rulers; and to attain this
+object was the only reason which ever prompted the cities to unite
+with any degree of harmony. Local independence was what they aimed at,
+and their shrewdness showed them the only possible means in that age
+of securing it.
+
+These results could hardly have been attained if society had remained
+such that the prominence of the local divisions was dependent on the
+prominence of the respective heads of these divisions; but the
+character of their local rulers once changed, and their powers in a
+great measure absorbed by the act of a strong central power, when that
+power fell to pieces it was much easier for the local divisions, as
+such, to increase their independence, and to utilize the advance they
+had made, by means of their more direct relation to the central power,
+to gain a position which they would enjoy in spite of the efforts
+alike of that power and of their old rulers. Such a position would not
+be reached except by means of great struggles and by passing through a
+period of great disintegration and of fierce internal strife between
+opposing factions, such as in the history of the Italian communes is
+represented by the dark period between the fall of the last of the
+Carlovingians and the election of the first German emperor as king of
+Italy; but once attained, the character of the people who accomplished
+it would ensure its permanence, as long as they retained those
+principles of independence which had made them victorious in the
+struggle. After this short discussion, in which we have traced the
+ultimate effects of the action of Charlemagne in changing the dukes
+into counts, let us look at another feature in the field of city
+government introduced by him, the new office of the _scabinus_ or city
+judge.
+
+According to the theory of judicial procedure among the Teutonic
+nations, judgment in criminal cases was given in the open court or
+_placitum_, where, besides the regular judges, all or any of the
+freemen within its jurisdiction were supposed to concur in the
+judgment and sentence. How far this method of arriving at judicial
+decisions was carried out in practice depended largely on custom and
+other local influences, and consequently varied greatly in different
+countries and with different nations. I do not propose to enter into
+the discussion[58] of the existence of these "judicators"[59] in
+Lombardy in the eighth century, but will only say that it is certain
+that before the Frankish conquest there did not exist a class of men
+whose business it was to assist the judge in disposing of cases. If
+through ignorance of the law or for other reasons he was unable to
+come to a decision, "si vero talis causa fuit, quod ipse ...
+deliberare minime possit,"[60] he could call some of the freemen to
+assist him: "advocis [advocet] alios ... qui sciunt judicare,"[61]
+etc., but this seems, in later times at any rate, to have been a
+privilege to be used at discretion, and the persons summoned were not
+regularly appointed officers of the court. The Lombard codes are
+silent with regard to these indicators; but Savigny,[62] in his
+argument to prove their existence, claims that mention is made of them
+in two decisions of Liutprand of the years 715 and 716, and brings as
+additional evidence a _placitum_ of 751[63] in which Lupo, duke of
+Spoleto, gives judgment "una cum judicibus nostris ... vel aliis
+pluribus astantibus," etc. It is of more importance for us, however,
+to determine the reasons for the introduction into Italy by
+Charlemagne of the new office of the _scabinus_, than to lose
+ourselves in a complicated discussion of the theoretical predecessors
+of these officers.
+
+The introduction of this new feature into city government seems to
+have been the result of an attempt to correct certain abuses in the
+exercise of power by the duke or head of the courts of the _civitas_.
+The duke had the right, as we know, to summon all the freemen in his
+jurisdiction to his _placita_, and to fine them according to the law
+if they failed to answer his summons. The fines collected in this
+manner formed a substantial part of the revenues of the _judex_
+imposing them, and consequently arose the abuse, which seems to have
+been a great cause of complaint in the eighth century, that the
+freemen were summoned to attend _placita_ at frequent intervals during
+the year, when there was no business of any importance to transact,
+and when the sole object of the summons was to furnish an excuse for
+imposing the fine. An attempt to remedy this injustice was made when
+the number of _placita_ which any one _judex_ could hold during the
+year was limited by law to three,[64] and the dates for these
+definitely determined. But the abuse does not seem to have been
+satisfactorily corrected till the time when Charlemagne formally
+substituted for the body of the freemen, who in theory were supposed
+to attend the _placita_ and assist in the judgments, a limited number
+of men who, as regularly constituted judges, either assisted the
+_judices_ or made judgments of their own, as the case might be. These
+officers were the _scabini_, whose position we are now investigating.
+
+All of the best authorities agree that no authentic allusion to the
+office in Italy is to be found prior to the establishment of Frankish
+rule. The word _scavinus_ or _scabinus_ sometimes occurs, but in every
+case the document containing it has been proved spurious on other
+grounds. For instance, Brunetti[65] publishes a donation of the bishop
+Speciosus of Florence, to the monastery of the cathedral, purporting
+to belong to the year 724, in which a certain "Alfuso scavino" is
+mentioned; but it has been proved that the monastery was only founded
+in the year 760, and though it may, at a later date, have received the
+donation, the significancy of the use of the term vanishes. The first
+authenticated use of the name of the new judge seems to be in a
+_placitum_ of Charlemagne of the year 781.[66] In this the parties to
+a suit are mentioned as having already appeared before the "Comitem et
+suos Escapinios." Eight years later, in a _Praeceptum_ of
+Charlemagne,[67] commission is given to the _comes_ Tentmann "superque
+vicarios et Scabinos, quos sub se habet, diligenter inquirat."
+
+Now that we have indicated the origin and noted the first appearance
+of the new officer, let us examine his position and his duties. I am
+much more willing to allow to the _scabinus_ the title of "city
+officer," than to the _dux_ or even the count. We have seen the latter
+as one of the important connecting links joining the city to the
+state, bringing the city into relationship with the constitution of
+the kingdom and making it a part of it; but we have been unwilling to
+call the count or _dux_ the _legal_ head of the city, as such, that is
+to allow him the title of the first city officer. But with the
+_scabinus_ the case is different. His mode of appointment, and the
+character of the functions he performed, ally him with the city proper
+and with city people. His duties and his interests were more confined
+to the city than those of any of the other judges, and when he
+accompanies the count to the general _placita_ of the king, he seems
+to go in the capacity of a representative of the city, and more in the
+character of a city magistrate than any officer we have yet
+considered. His duties were almost entirely of a judicial character,
+and his powers seem to have been as broad in their extent as those of
+the other judges. That he had the power of imposing capital
+punishment, and that the other officers of the law could not change
+but only execute his orders, appears from the following passage:[68]
+"postquam Scabini eum [latronem] adjudicaverint, non est licentia vel
+Vicarii ei vitam concedere." Muratori[69] maintains that he also had
+the right of holding certain _placita_ of his own, and cites in proof
+two _placita_ of Lucca of the years 847 and 856, where we find: "Dum
+nos in Dei nomine Ardo, Adelperto et Gherimundo Scabini adsedentes in
+lucho Civitate Lucana," etc.; and "dum resedisset Gisulfus Scabinus de
+Vico Laceses, per jussionem Bernardi Comiti ... ubi cum ipso aderat
+Ausprand et Audibert Scavinis." In the first of these there is no
+mention whatever of the count, and in the second "Gisulfus Scabinus"
+acts with his associate _scabini_ "per jussionem Comiti." But even if
+we allow to the _scabini_ the right of holding _placita_, these must
+have been of a lower grade than those of the counts or of the _missi
+regii_; for to the _mallum_ of the latter an appeal was allowed from
+the judgment of the _scabini_, as we see from the law of
+Charlemagne,[70] which says that: "Si quis caussam judicatam repetere
+in mallo praesumserit ... a Scabinis, qui caussam ipsam prius
+judicaverint, accipiat." Generally speaking, however, it seems
+probable that their jurisdiction included all cases arising within the
+city limits, which could be dealt with in the regular _placita_ of the
+counts, and which were not of sufficient importance to be referred to
+the king in person, his representative the Count of the Palace, or his
+delegates the _missi regii_.
+
+When the count went up to the general yearly _placitum_ of the king,
+as the representative of the _civitas_, according to the laws of
+Charlemagne he was to be accompanied by a certain number of the
+_scabini_; and these seem to have accompanied him not solely in the
+character of legal advisers, but also in a certain measure as
+representatives of the cities in which lay their jurisdiction: they
+are by no means what the exaggeration of Sismondi[71] calls "des
+magistrats populaires ... qui representaient la bourgeoisie"; but they
+certainly stood for the interests of the people, in a greater degree
+than any of the ruling powers we have as yet considered. Their number
+is variously stated in the laws of different kings, and their actual
+number seems seldom to have come up to the standard of legal
+requirement. Lewis the Pious requires twelve to accompany each count
+when summoned by the emperor: "veniat unusquisque Comes et adducat
+secum duodecim Scabinos";[72] but concedes that if so many could not
+be found in the city, their number should be filled out from the best
+citizens of the town: "de melioribus hominibus illius civitatis
+suppleat numerum duodenarium."[73] According to Charlemagne,[74] no
+one should come with the count to a king's _placitum_ unless he had a
+case to present, "qui causam suam quaerit, exceptis scabinis septem,
+qui ad omnia Placita esse debent." And again: "Ut nullus ad placitum
+banniatur ... exceptis scabineis septem, qui ad omnia Placita praeesse
+debent";[75] and seven seems to have been the usual number expected,
+and their attendance was compulsory; though sometimes only two appear,
+and in a few cases none at all.
+
+Of all matters relating to this office, the one which is of most
+interest to us, and the one which most clearly shows the difference
+which was designed to exist between it and that of the other judges,
+was the manner in which the office was obtained. In this procedure we
+can trace almost distinctly that the object of the central power which
+established it was to secure greater justice and greater freedom to
+the subjects who came under its jurisdiction. The fact was recognized
+by the new government that the power of the local heads was too great
+to suit the principle of universal central control, which was the
+keynote of Charlemagne's system of administration, and was exercised
+in too arbitrary a manner; and that some check was necessary to curb
+the spirit and limit the independence of these local lords of the soil
+and the city who had little consideration for their inferiors, and who
+might at any time become a source of danger to their superiors. Such a
+check was found, in regard to the central authority, in the _missi
+regii_, and in reference to the general public, in the _scabini_ or
+city judges.
+
+In the old Lombard constitution we have seen the gastald, chiefly,
+however, in the matter of judicial decisions, exercise a controlling
+influence on the arbitrary action of the duke; but as the power of the
+count varied from that of the duke, so that of the _scabinus_ differs
+from that of the gastald, only perhaps in a greater degree. At the
+time when the count assumes the place of his predecessor the duke, the
+_scabinus_ displaces the gastald, although he cannot be said to have
+assumed exactly the same position as the latter, nor to have filled it
+in precisely the same way. The _scabinus_ did not have, of course, any
+direct limiting control over the actions of the count; for any such
+power in the hands of a body of lesser officers would have been alike
+contrary to the spirit of feudalism which characterized the age, and
+impossible to its forms; but being the principal judicial
+functionaries of the district, into their hands fell most of the cases
+which formerly went to the _placita_ of the count; and while the wish
+of the great emperor, that even the meanest subject of the realm
+should receive impartial justice at their hands, might have failed in
+its effect, its fulfilment was made more sure by the method prescribed
+for the election of the officers whose duty it was to execute it.[76]
+
+In describing the method by which the _scabini_ gained their office, I
+am in some doubt as to the proper terms to be employed. I have just
+made use of the word "election," but cannot let it stand without some
+qualification. It was not an election in the strict sense of the word
+as we now understand it, but it was as near an approach to a popular
+choice as was possible in the age in which it existed. The citizens of
+a municipality did not nominate and elect by their votes a popular
+magistrate, as some writers would have us believe; for such a
+proceeding would have been an anomaly in the eighth century under the
+rule of a Frankish emperor. But the people had a voice, and from the
+frequent mention of their intervention it would seem an important
+voice, in the selection of those who were to be their judges, and who
+were to assist in representing them in the royal assembly. The
+original appointments were made by some higher power, in most cases
+the _missi regii_, the direct representatives of the king; but these
+were made not arbitrarily, but always "cum totius populi consensu."
+This was the important point; it was so far a popular office that the
+free consent of the people was always necessary to make valid the
+appointment of any incumbent. According to the ideas and customs of
+the eighth century, such a method of procedure would represent a
+fairly popular election; for we know well that in the times of the
+greatest freedom, the Teutonic idea of a popular vote never went
+beyond the mere expression of assent or dissent by the assembled
+freemen. The initiative was always left to the king or chief who
+conducted the meeting, just as much as it was in the ancient assembly
+held on the classic plains of Troy. In a capitulary[77] of Charlemagne
+of the year 809 it is decreed: "ut Scabini boni et veraces cum Comite
+et populo elegantur et constituantur": and more specific directions
+are given by Lothar I. in the year 873, in case of a _scabinus_ found
+to be an unjust judge. He says:[78] "ut Missi Nostri ubicumque malos
+scabinos invenerint ejiciant, et totius populi consensu in loco eorum
+bonos eligant." From this latter example we see that the _missi_ had
+the power of dismissal "for cause," as well as of nomination. In fact,
+the king and his ministers, in the interests of impartial justice,
+kept constant watch on the acts and judgments of the _scabini_, and a
+law of Lothar I. tells us that "quicumque de Scabinis deprehensus
+fuerit propter munera, aut propter amicitam injuste judicare" should
+be sent up to the king to render an account of the manner in which he
+had fulfilled the duties of his office.
+
+Such then were the duties, the privileges and the restrictions of the
+first magistrate to whom we could venture to ascribe any of the
+attributes of a popular judge: a representative of the people at the
+assembly of their ruler; a judge of their suits and of their misdoings
+at home, and a check on the arbitrary power of their lord and feudal
+superior,--we can readily appreciate that the existence of such an
+officer within the city must have exercised some influence in giving
+to its inhabitants a greater sense of security, and consequently of
+importance, even if we cannot claim that in the earliest stages of
+municipal development it gave birth to any definite ideas of personal
+freedom or of municipal independence. But it can easily be seen that
+it formed another and an important factor in that idea whose progress
+we wish to trace, of a slowly growing feeling of individuality in the
+city as such, the municipal unit as conceived apart from the still
+legally recognized unit, the entire _civitas_. We have seen the count
+the representative of this idea as far as its actual connection with
+the constitution of the state was concerned, but it was the _scabinus_
+who was to represent it to the consciousness of the people, and to
+assist them in rediscovering the lost conception of a municipal unity.
+
+It would be incomplete to conclude this account of the various
+officers of government, without some mention of the position held by
+the bishops at this period. As it has been our duty throughout this
+paper to study the municipalities of Italy as only preparing to assume
+a position of individuality eventually leading to independence, so it
+is with regard to the bishops. While their social influence, as
+pointed out in the first part of this paper, was always notable, their
+political power, which formed one of the important steps in the
+progress of the communes towards a separate existence, has its birth
+at a time which is beyond the limits of this investigation. Not until
+the overthrow of the Carlovingian dynasty left Italy the prey of
+contending factions, and the crown passing quickly from hand to hand
+made each applicant anxious to gain the support of the more prominent
+electors, did the bishops obtain that legally constituted political
+power which, by breaking up and in many cases destroying the rule of
+the counts and great nobles in the cities, was the means of bridging
+over the wide gulf which lay between the idea of a district under the
+almost absolute rule of a great lord, and a civic autonomy governed by
+its own independent citizens. Even, however, if we are not yet to
+portray the bishop in a position of high political importance, we may
+briefly consider his social power and influence, and, as we have done
+with the cities themselves, indicate the steps by which he was enabled
+ultimately to gain such an exalted position.
+
+The relations of the bishop to the inhabitants of the cities during
+the period we are considering were pretty nearly such as described in
+the first part of this paper. He stood forth as protector of the weak
+and the oppressed; as mediator between an unfortunate prisoner and an
+unjust judge who was seeking his private interest rather than
+following the spirit of impartial justice; or between a downtrodden
+vassal and the almost unlimited power of his feudal superior. He
+lessened the severity of harsh judgments, he protested the imposition
+of unjust fines and penalties. In very many cases he was even
+appointed by the king or his representatives as co-judge to assist the
+_judex_ or the _missus_ in hearing cases where oppression or injustice
+was to be feared. But it is important for us to avoid confusing this
+kind of jurisdiction with that which he enjoyed in the century after
+he had attained the power and the office of count, and had combined
+the religious functions of head of the diocese with the secular ones
+of political ruler of the city. Any judicial authority possessed by
+the bishop at this earlier period was not in virtue of any political
+position he himself held, but came to him entirely in what might be
+called an extraordinary manner, that is, by delegation from the king,
+for definite specified occasions. As an example of this extraordinary
+delegated jurisdiction, I will refer to a document in the Archivio of
+the Canons of Arezzo[79] of the year 833, relating to the judgment of
+a dispute between "Petrum Episcopum Arretinum et Vigilium Abatem
+Monasterii Sancti Antemi," situated in the territory of Chiusi, over a
+privilege ceded to that monastery by Lewis the Pious in 813.[80] The
+bishop of Arezzo gained a favorable decision from a court constituted
+of some _judices_, _missi_ of the emperor, and of the bishops of
+Florence, Volterra and Siena, Agiprandus, Petrus and Anastasius.
+According to the terms of the document with regard to the composition
+of this court, the bishops sitting in it were "directi a Hlotario
+magno Imperatore"; and their powers are several times referred to as
+being "juxta jussionem et Indiculum Domni Imperatoris." Here, as in
+all other similar cases, we see plainly that there is no indication of
+any purely personal jurisdiction.
+
+That the influence of the bishop in affairs of state at this period
+was only of an individual, extra-official character can be seen also
+from the fact that the king considered the bishops themselves to be
+under his judicial jurisdiction in all secular matters, just as the
+lesser clergy came under the jurisdiction of the _judices_:[81] and
+further, that after the election to a church, the decision of the
+_judex_ must confirm the choice of the community in order to render it
+valid.[82] All disputes also between bishops and their clergy, between
+members of the body of clergy, and between these and members of the
+laity, were settled by the royal authority;[83] and what is most
+significant, there was a universal and freely used right of appeal for
+the clergy or laity from the decision of a bishop to the person of the
+king, who seems to have exhibited no hesitation in modifying or
+reversing sentences, even in matters relating to purely clerical
+discipline.[84]
+
+Even in the time of the Franks, when the consideration shown to the
+church and its representatives was much greater than under any of the
+Lombard kings, we find Charlemagne,[85] on suspicion of infidelity to
+his government, having sent to him and retaining as prisoners the
+bishops "Civitatis Pisanae seu Lencanae" and Pottoni, Abbot of the
+monastery of Volturno; and Lewis the Pious[86] sends into exile
+"Ermoldo Nigello Abatis," and in the year 818 several other bishops,
+including Anselmus "Mediolanensis Archiepiscopus," "Wolfoldus
+Cremonensis" and "Theodolphus Amelianensis."[87] None of these
+restrictions and limitations, however, although they arose chiefly
+from the strong opposition always existing between the local temporal
+rulers of the people and their spiritual rulers, could hinder the
+bishops from occupying that important position of mediators and of
+protectors of the people which we have ascribed to them.
+
+Turning now to a consideration of the earliest steps which may be said
+to have cleared the way for the political power of the bishops, we are
+met by a subject which, though of great interest in itself, is not
+sufficiently a part of this investigation for us to do more than
+indicate the lines of its progress. This subject is the development of
+the practice of giving certain immunities and privileges to churches
+and monasteries, adopted by the Frankish kings, faithful sons of the
+church, and then followed by all their royal and imperial successors.
+In considering the important influence exercised by these immunities
+on the development of the espiscopal power and the effects of this on
+the growth of the communes, there are two essential facts which we
+must always keep prominently in mind. In the first place we must
+remember that the granting of immunities was a question of privilege
+to particular individuals or ecclesiastical institutions, and not a
+universal grant which affected in an equal degree all the dioceses of
+the realm. This led to the marked differences in rank and importance
+which existed between the various bishoprics, and in the tenth
+century, when the temporal power became in many cases an adjunct to
+the spiritual, caused some bishops to become powerful temporal
+princes, while others, unable to gain this pre-eminence, remained
+simply spiritual heads of their respective dioceses. So in the contest
+between the counts and the bishops we find the latter only victorious
+in certain cases, and consequently having only certain of the cities
+under their jurisdiction; a fact which is illustrated as late as the
+Peace of Constance, where in the ninth article the cities are still
+divided into episcopal and non-episcopal cities.[88] In the second
+place we must keep clearly before us an important fact, the truth of
+which any chronological account of the development of the principle of
+immunity would easily demonstrate, namely, that with the advance of
+time and with the growth of that principle, the changes which took
+place in the different sorts of immunities were not simply those of
+degree, but essentially and principally those of _kind_.
+
+A descendant of Charlemagne may have granted to some monastery or
+bishopric a greater alleviation of some of the fiscal burdens borne by
+it under his immediate predecessor, but a successor of Berenger when
+he granted a _privilegium_ did not simply perform the negative benefit
+of alleviating burdens; he endowed the head of the bishopric--probably
+in return for some service he had received at his hands or expected to
+receive--with the positive benefit of the political headship and
+possession of some city or district of a former count. I mean by this
+that the earlier immunities--and in these are included all given
+during the period we are discussing--were all of them what are termed
+simple or ordinary immunities; that is, those which deal with
+exemption--whether from burdens for which the receivers would
+otherwise be liable, or from jurisdiction to which they would
+otherwise have been subjected--of what may properly be called the
+private possessions of the churches concerned. They had nothing to do
+with the privileges of a later time, by which a power to exact burdens
+was granted and a positive jurisdiction over others allowed: that is,
+public functions bestowed rather than private rights conceded.
+
+That a distinction of such a character was a difference of kind and
+not of degree is so plainly apparent that it is unnecessary to dwell
+longer upon it, and it only remains for us to consider briefly the
+chronology of some of the changes that took place. If we adhere
+strictly to the proper signification of the terms used, the
+development can be somewhat succinctly described by the simple
+enumeration of the three characteristic features of its progress, viz.
+_protection, exemption, privilege_ that is jurisdiction or temporal
+power; and the three periods which are covered respectively by the
+prominence of these ideas can be roughly stated to be: for the first,
+the reigns of Charlemagne and his successors down to the time of
+Charles the Bald--including any indication of this idea which we may
+find during the reigns of the last rulers of the first Lombard
+kingdom; for the second, the reigns of Charles the Bald, Karloman, and
+Charles the Fat; and for the third, the full development of the
+episcopal power in the tenth century, down to the period of its final
+decline, and the rise of actual municipal government within the
+communes.
+
+It is doubtful whether immunities of any importance were granted even
+by the latest kings of the Lombards, before the invasion of the
+Franks. Under the first Lombard monarchy the church held a very
+subordinate position with regard to the state, and if privileges were
+granted to any of its members, they had attached to them no greater
+meaning than the simple extension to them of the _mundibrium_ of the
+king, such as was often allowed to private individuals; that is, they
+were simply grants of royal protection, and were not similar to the
+later grants which included both protection and privilege.[89]
+
+With the advent of Frankish rule under Charlemagne, marked
+consideration immediately appears for the church and its
+representatives. Not alone is ample protection granted to many of the
+churches of the kingdom, but to it is added the important function of
+exemption. The greatest evil endured in those days by the
+ecclesiastical authorities was exactions levied on their property and
+oppression exercised on their dependents by the dukes and counts under
+whose jurisdiction lay the temporal possessions of the churches and
+monasteries. Consequently the aim of every bishop and of every abbot
+was to obtain for the possessions of his diocese or his convent an
+exemption more or less complete from the civil administration of the
+neighboring secular ruler. For a long time there was no thought in the
+mind of the bishop of gaining for himself the functions of temporal
+jurisdiction, but simply that the power of the count should be
+restrained with regard to church property, that is, that he should not
+be able to exercise his judicial control over lands belonging to the
+church, except by the express permission, "per licentia data," and
+with the concurrence of the bishop himself. This and nothing more is
+what is meant by all of the charters of exemption granted by the
+Carlovingian rulers, down to the time of Charles the Bald, when, as we
+shall presently see, a change was introduced.
+
+It would be useless for me to cite examples of such charters, for
+their number is countless, and reference may be made to any of the
+great collections of mediaeval documents for confirmation of what has
+just been said; for during the reigns of the earlier Carlovingians,
+the strong reverence for the church and respect for its officers which
+characterized the Frankish nation from the beginning led to the
+extension of these privileges to much the greater number of the
+churches in the realm. Not all churches enjoyed such grants, and not
+all those accorded were of the same liberal character, but the number
+given and the amount of liberty to the church thereby bestowed was
+sufficient to give to the clergy that degree of importance which
+ultimately culminated in making them the great lords that we find them
+in the tenth century. To give an idea of the tenor of these documents,
+I will, however, quote a few lines from the earliest one that has come
+under my notice in Carlovingian times, namely a diploma of the year
+782, issued to Geminiano II., bishop of Modena, and preserved in the
+archives of that city. Here we find that: "Nullus judex publicus ad
+causas audiendum, vel freda exigendum, seu mansiones aut paratas
+faciendum, nec fidejussiones tollendum neque hominibus ipsius
+episcopatus distringendum," etc. This is sufficient to show the
+character of exemption from secular jurisdiction.[90]
+
+The next forward step in the advance of the bishops to temporal power
+was made probably about the time of Charles the Bald; though under his
+two immediate predecessors, Lothaire[91] and Lewis II.,[92] we already
+see indications of an extension of the quality of exemption to include
+freedom from the payment of all public dues and the bearing of all
+public burdens.[93] It was precisely the introduction of this element
+of exemption from public burdens which marked the change in the nature
+of the immunities granted from the time of Charles the Bald, down to
+the period when the element of jurisdiction and real temporal power
+was introduced under Guido and Berenger. Up to this time, the grounds
+on which similar charters had been sought had been protection from the
+oppression of the counts, and had resulted, as we have seen, in the
+granting of simple charters of protection which were of no very great
+significance. But now it is exemption from public burdens, etc., that
+is made prominent, in addition to a complete severance from all
+jurisdiction and control of the secular power of the _civitas_ in
+which the bishop's see and domains are situated. That this concession
+also was sought by the bishop on the plea of protection for his
+dependents from oppression and exaction, does not diminish its
+importance; for it is easy to see that the line which separates
+recognized right of protection from recognized right of jurisdiction
+is one easily effaced, and defense from the tyranny of a foreign power
+can with little difficulty be transformed into domination by the
+professed defender.
+
+That this was the order of development consequent on these changes is
+proved by the temporal dominion gained by the bishops in the next
+century; and the steps of its growth marked by numerous immunities
+granted by Charles the Bald, Karloman[94] his successor, and Charles
+the Fat, the last of the Carlovingians in Italy. As a good example of
+the complete development of this advance gained by the bishops, I will
+mention a charter given by Charles the Fat to John, bishop of Arezzo,
+in the year 879, in which he confirms to him all the property and the
+rights of that see, and takes him under his protection, "sub
+immunitatis suae defensione": he then goes on to explain what this
+term meant, giving a full account of the extent to which a bishop's
+property was exempted from the jurisdiction of the _judex publicus_,
+and protected from the imposition of burdens and exactions.[95]
+
+The next step in the growth of the episcopal power, and the most
+important of all, is the progress from exemption to privilege, to
+jurisdiction; and occurs after the return of the kingship of Italy to
+the hands of native kings.[96] It means the full development of the
+bishop into the temporal ruler, and as such belongs properly to the
+history of the tenth century, and consequently is beyond the limits of
+the present paper.
+
+We have now considered individually and separately, in the course of
+their development, the different elements which, when combined and
+modified by the various changes described, contributed to form the
+solid foundation upon which the fabric of the future independent life
+of the cities was to be built. We have been dealing exclusively with
+institutions, and the manner in which their growth has been
+accomplished. For it is in the institutional life of a people, and in
+the change and development it undergoes, that are to be found those
+elements which form the basis for all future changes, whether simply
+in the form of its government or in the structure of its social
+system. If once a clear picture is gained of the structural parts
+which form the institutional framework of any particular development,
+and a truthful presentation of these forming principles is proved and
+established, a detailed account of the material expression of them is
+a matter of secondary importance.
+
+I have not, in this paper, attempted to describe the actual condition
+of any particular municipality, or even presented a picture which
+could represent the material existence of the cities as a whole. Such
+a picture would only be a necessary part of a study of institutions
+when the city itself was the unit to be investigated, and not of one
+whose chief object is to prove that the city as such had no
+constitutional existence, but simply formed a part of another
+institutional unit. When we reach a period in which the city stands
+out as an object of study in itself, and when we do not have to trace
+its history only by learning that of other institutions which included
+and overshadowed it, then the practical life of the people within its
+walls becomes of the greatest importance, even to the smallest detail
+of civic law or city custom; and then, and not till then, begins what
+could properly be called a study of municipal institutions.
+
+During the three centuries that we have been investigating, the study
+of the Italian municipalities has been, as we have seen, but the study
+of other institutions of which the municipality formed only a part. No
+attempt has been made to do more than prove the origin and trace the
+earliest development of those principles, which in their maturity were
+to gain for the municipal unit that position where the study of its
+own structure would become an object of interest, entirely apart and
+distinct from any of its surroundings. It has been shown that the city
+did not inherit any such position from its immediate predecessor the
+Roman _municipium_, which we have learnt to consider as overthrown,
+from a constitutional standpoint as annihilated; but that the new
+principle introduced into state life by the northern conquerors of
+Italy, the principle of administration by county rather than by urban
+divisions, relegated the city to an inferior place as part of a rural
+holding, instead of leaving it the centre of a circle of rural
+dependencies. Having demonstrated the absence of all constitutional
+recognition of the municipal unit as such, I have attempted to show
+how a condition of such legal insignificance became generally a
+condition of actual importance; how from a position of such negative
+interest, the advance of the city was commenced along a road which was
+ultimately to restore it its old pre-eminence, even adding to this in
+time the almost forgotten attribute of sovereignty. The motives for
+this advance we have seen to be no higher ones than convenience and
+expediency, which made the _urbs_ of every _civitas_ the natural
+centre of its local administration, thereby in fact, if in no way by
+law, restoring to it some of the elements of individuality, if not of
+pre-eminence, which it had lost. The means employed we have seen to be
+the functions of the various officers of state: the _dux_, the count
+and the gastald, who connected the city with the state, and the
+_scabinus_ and the bishop, who represented this connection to the
+consciousness of the people. We have noted the marked effects produced
+on the development of a more popular feeling, by the changes
+introduced by the great emperor of the Franks; which, by diminishing
+the power of the local lords, accomplished a double benefit; on the
+one hand by saving the people from the arbitrary rule of a feudal
+superior; on the other, by causing the city to become more of a
+dependence and more of a support to the state as a whole. And finally
+we have left the city prepared, on the return of another dynasty of
+native kings, to accept, at least in a large number of cases, the
+domination of another kind of lord, a spiritual one; who was to serve
+as a medium for breaking up the power of the old lords of the
+_civitas_, and from whom it would be an easier task for the commune of
+the future to wrest the power and the sovereignty which was to make it
+a free and independent autonomy.
+
+       *       *       *       *       *
+
+AUTHORITIES REFERRED TO IN THE TEXT AND FOOT-NOTES.
+
+_Anastasius Bibliothecarius_: Vitae Romanorum Pontificum. v.
+_Muratori_: Script. Rer. Ital., Tom. III., Pars I.
+
+_Baluzii, Stephanus_: Capitular. Regum Francorum additae sunt
+_Marculfi_ Monachi et aliorum formulae veteres. Parisiis, 1780. 2
+vols. fol.
+
+_Bethmann-Hollweg_: Schrift über den Ursprung der lombardischen
+Städtefreiheit.
+
+_Bouquet, Martin_: Recueil des historiens des Gaules et de la France,
+etc. Paris, 1738-1855. 21 vols. fol.
+
+_Brunetti_: Codice Diplomatico Toscano. Firenze, 1806.
+
+_Canciani, Paolo_: Barbarorum Leges Antiquae, etc. Venetiis,
+1781-1792. (Formulae Baluzii, Marcolfi & Mabillon.)
+
+_Chronica Farfensis_. v. _Muratori_: Script. Rer. Ital., Tom. II.,
+Pars II.
+
+_Eichhorn_: Deutsche Staats- und Rechtsgeschichte. Gött., 1803-23.
+
+_Fumagalli, Angelo_: Codice Diplomatico S. Ambrosiano. Milano, 1805.
+
+_Hegel, Carl_: Geschichte der Städteverfassung von Italien. Leipzig,
+1847.
+
+_Leo, Heinrich_: Verfassung der lombardischen Städte. 1820.
+
+_Liutprandus Ticinensis_: Opera, v. _Pertz_, Monum.; Script., Tom.
+III.
+
+_Lex Salica_. v. _Canciani_: Barbar. Leg. Antiq., Tom. V.
+
+_Lupo, Mario_: Codex Diplomaticus civitatis et ecclesiae Bergomatis,
+etc. Bergomi, 1784-1799. Vols. 2.
+
+_Mabillon_: De Re Diplomatica. Parisiis, 1709. (General
+Collection.)--Annales Ordinis S. Benedicti. Parisiis, 1703-39.
+
+_Macchiavelli, Nicolo_: Istorie Florentine, _v_. Delle Opere, Tom.
+II., ed. Milano, 1804.
+
+_Migne_: Patrologiae Cursus Completus, etc. Series Latina.
+
+_Muratori_: Scriptores Rerum Italicarum. Mediolani,
+1723.--Dissertazioni sopra le Antichità Italiane, etc. Roma, 1755.
+
+_Otto (Freising)_: Chron.
+
+_Pertz_: Monumenta Germaniae Historica, etc. (Diplom.; Leges; Script.)
+
+_Paulus Diaconus_: De Gestis Langobard. v. _Muratori_: Script. Rer.
+Ital., Tom. I.
+
+_Savigny_: Geschichte des Romischen Rechts im Mittelalter, etc.
+
+_Sismondi_: Histoire des Républiques Italiennes du Moyen Age. Paris,
+1840.
+
+_Tacitus_: Germania.
+
+_Tiraboschi, Girol_: Storia della Badia di S. Silvestro di Nonantula,
+etc. Modena, 1784-1785.
+
+_Tomasini, Ludov._: Dei Benefizii.
+
+_Tommasio_: Historia sanese.
+
+_Troya_: Delia Condizione dei Romani, etc.
+
+_Ughelli_: Italia Sacra. 10 vols. fol. Venetiis, 1717-1722.
+
+Collections of documents in the _Archivii_ of many cities of Northern
+Italy.
+
+N.B.--The above list is restricted to those works to which direct
+reference is made in the text and foot-notes.
+
+
+FOOTNOTES:
+
+
+[1:] _Paulus Diaconus_: De Gest. Lang., Lib. II., c. 32. v.
+_Muratori_: Script. Rer. Ital., T. I., p. 436. The Gothic system was
+to take one-third of the land itself from the conquered people; the
+Lombards on the other hand took one-third of the produce, "_frugum_."
+
+[2:] With the growth of society and the increase of population, the
+_milites_ gain added power, and become the "_catanei_," the barons of
+the period, or as some are pleased to call them, the "rural counts."
+
+[3:] _Tacitus_: Germania, cap. xvi.
+
+[4:] The Sagas say the Lombards came originally from Scandinavia.
+Their name is commonly derived from "Long-beard," but more probably
+came from words signifying "a long stretch of land." Their first
+appearance in history is during the first century of the Christian
+era, in the region of Magdeburg. All trace of them is then lost till
+they reappear in the fifth century on the banks of the Oder; they then
+go south to the river Theiss. They are in a constant state of war with
+the Gepidae, a tribe nearly as fierce as themselves, which strife is
+supposed to have been fomented by the eastern emperors. In the year
+567 the Lombards, under their king Alboin, together with the Avars,
+begin to move into Pannonia from Dacia and the region of the Don.
+Kunnemund, the king of the Gepidae, is killed, and his conquered
+people merged in the race of their conquerors. In the next year, still
+victorious, they overrun Northern Italy.
+
+[5:] Some of these cities were enabled to hold out for a considerable
+period. Pavia was not taken till 572.
+
+[6:] To these seaports some of the functionaries of the inland towns,
+especially among the clergy, were able to effect their escape. For
+instance, the Archbishop of Milan fled to Genoa, and the Archbishop of
+Aquileja to Venice.
+
+[7:] The Christianity of the Lombards of the invasion was of the Arian
+form. Autari, who reigned from 584 to 591, married Theodolinda of
+Bavaria, and she first introduced orthodox Christianity. At the death
+of Autari she married Agiluf (591-615) duke of Turin, who was an
+Arian, but who pursued a mediative policy. During his reign a double
+ecclesiastical system, with orthodox and Arian bishops side by side,
+was maintained.
+
+[8:] Justinian gave him the right to exercise, in reference to each
+city, the functions of the governor of the province, during the
+latter's absence; and granted him jurisdiction in all cases not
+involving a larger sum than 300 _aurei_. He had a certain amount of
+authority in criminal matters, and two apparitors were attached to his
+person. The _defensores_ had two guarantees for their power and their
+independence. 1. They had the right of passing over the various
+degrees in the public administration, and of carrying their complaints
+at once before the praetorian prefect; this freed them from the
+jurisdiction of the provincial authorities. 2. They were elected by
+the general body of the inhabitants of the _municipium_.
+
+[9:] _Paulus Diaconus_: Lib. V., 7, 17, 18.
+
+[10:] His words are: "Erano stati i Longobardi dugento ventidue anni
+in Italia, e di già non ritenevano di forastieri altro che il
+nome."--_Nicolò Macchiavelli_: Istorie Fiorentine, Lib. I. _vid_.
+Opere, Vol. III., p. 219 (ed. Milano, 1804).
+
+[11:] It is difficult to draw any picture of the different ranks of
+society at this period, which would at once be perfectly accurate, and
+yet definite enough to give entire satisfaction to the student.
+
+[12:] Geschichte des römischen Rechts im Mittelalter, _passim_.
+
+[13:] _Brunetti_: Cod. Diplom. Toscan. Firenze, 1806, Docum. No. 44.
+
+[14:] _Idem_. Docum. No. 8.
+
+[15:] _Brunetti_: Cod. Diplom. Toscan. Docum. Nos. 6-10.
+
+[16:] _Idem_. Docum. No. 43.
+
+[17:] _Liutprandi_: Leg. Long. Prolog. Anni XVI. et XV. et al. Vid.
+_Muratori_: Script. Rer. Ital., Tom. I., P. II., p. 15, et seq.
+
+[18:] _Liutprandi_: Leg. Prolog. Anni XIII. Vid. _Muratori_: Script.
+Rer. Ital., Tom. I., P. II., p. 15.
+
+[19:] _Crimoaldi_: Leg. Prolog. Vid. _Muratori_ op. cit. Tom. I., P.
+II., p. 49.
+
+[20:] _Liutprandi_: Leg. Prolog. ad Lib. III. Vid. _Muratori_: Script.
+Rer. Ital., Tom. I., Pars II., p. 15.
+
+[21:] _Muratori_: Script. Rer. Ital., T. II., Pars II.
+
+[22:] _Savigny_: Gesch. des röm. Rechts im Mittelalter, S. 422 et al.
+
+[23:] _Muratori_: Script. Rer. Ital., Tom. I., Pars II., p. 15.
+
+[24:] _Paulus Diaconus_: De Gest. Langobard., Lib. III., cap. 16.
+
+[25:] _Brunetti_: Cod. Diplom. Toscan. Docum. No. 6, anni 715.
+
+[26:] _Ibid_.: Cod. Diplom. Toscan. Docum. No. 8, anni 715.
+
+[27:] _Ibid_.: Docum. No. 11, anni 716.
+
+[28:] _Ibid_.: Docum. No. 50, anni 756.
+
+[29:] _Muratori_: Script. Rer. Ital., Tom. I., Pars II., p. 192E.
+
+[30:] _Muratori_: Antiq. Ital. Diss. II., p. 186.
+
+[31:] _Muratori_: Script. Rer. Ital., Tom. II., Pars II., p. 409.
+
+[32:] In a donation to "Aimo Voltarius, abitator castrii Viterbii."
+Vid, _Troya_: Della Condizione, etc., p. 361. Docum. No. 6, anni 775.
+
+[33:] _Ughelli_: Italia Sacra, Tom. III., p. 28.
+
+[34:] _Ibid_.: Tom. II., p. 145.
+
+[35:] The word _palatium_ in the signification of _fiscus_ is perhaps
+more frequently used by the Frankish kings than by the Lombard. See a
+_privilegium_ granted to the nuns of the Posterla di Pavia by Lothar
+I. in the year 839, in which it appears that any one infringing its
+privileges must pay seventy pounds of the best gold, to be applied
+"medietatem Palatio nostro, et medietatem parti ejusdem monasterii."
+Vid. _Muratori_: Antiq. Ital. Diss. XVI., Tom I., P. I., p. 233. Also
+several diplomas of Charles the Fat, and others make use of the same
+term. The word _camera_ for _fiscus_ as the imperial treasury, was
+probably not used before the time of Lewis II.; the first authentic
+use of it in that sense being probably a diploma of that monarch of
+the year 894, where he says that one hundred pounds of gold are to be
+paid "medietatem Imperiali Camere et medietatem suprataxatae
+Angilberge." Vid. _Muratori_: loc. cit. p. 234.
+
+[36:] From _Otto of Freising_, De Gest. Freder., Lib I., cap. 31, we
+know that the same distribution took place in Hungary, which was
+divided into seventy _comitates_; "et de omni justitia ad Fiscum
+Regium duas lucri partes cedere, tertiam tantum Comiti remanere."
+
+[37:] _Charlemagne_: Leg. Lomb. Nos. 127 and 128.
+
+[38:] Lex No. 128.
+
+[39:] _Muratori_: Diss. Ant. Ital. Dissert. VIII., Tom. I., P. I., p.
+96.
+
+[40:] _Muratori_: Script. Rer. Ital., Tom. II., Pars II.
+
+[41:] In illustration of this fact I will cite the names of some of
+the various taxes, dues and privileges, mention of which is found in
+the old documents. The feudal character of these will be apparent to
+the reader. Following the rough division indicated in the text, we
+have:
+
+I. Under heading "_Fines and Forfeitures_":
+
+  1. Forfaturae:
+        Forisfacturae,
+        Multae (Mulcte),
+        Freda,
+     _e.g_. Leudis (Leudum) for homicide.
+     Penalties and compositions for crime.
+
+  2. Scadentiae:
+        Excadentia,
+        Bona caduca.
+     _Publicum_ falls heir to various classes of individuals. Cf. Leg.
+        _Rhotari_, No. 158 et al.
+
+  3. Lagan (Laganum).
+     Seizure of shipwrecked goods by the state. Examples more
+       common after year 1000 A. D.
+
+II. Under the head of "_Taxes and Privileges_":
+
+  1. _Onera Publica_, or Angariae (Perangariae), Factiones publicae.
+     _a_. Heribannum: Penalty for avoidance of military service.
+          Cf. _Charlemagne_, Leges, No. 23 et al.
+     _b_. Heribergum: Hospitality to _Missi_ of emperor or king. Cf.
+          _Charlemagne_, Leges, No. 128 et al.
+     _c_. Mansionaticum (Mansiones, Evectio): Lodging for king and
+          his ministers.
+     Conjectum was a pro rata tax on a district so as to meet the
+       expense. Cf. _Lud. Pius_, Leg. Nos. 54, 24, et al. loc.
+     Tractoria gave specification of what should be provided in each
+     case. For Formula, v. _Marcolfo_, Lib. I.
+     _d_. Veredi (Paraveredi): Horses and beasts of burden for king
+       and ministers. Cf. in Capitular. Reg. Franc. saepe. Capit.
+       _Lud_. II., Ad Missos, etc.
+     Census vehicularius, fiscalis or publicus was post to carry, free
+       of expense, king's letters, etc.
+     _e_. Foderum (Fodrum): Support of a king and his army in
+       passing through a district. Cf. many privileges and exemptions
+       to different churches and monasteries. Articles of the Peace of
+       Constance. Some privileges to private persons.
+
+  2. _Teloneum_.
+    _a_. Pedagium: General word for _tolls_ on streets, roads,
+bridges, etc.
+      [Greek: alpha]. Pontaticum, for bridges.
+      [Greek: beta]. Portaticum, for gates.
+      [Greek: gamma]. Platiaticum, for license to sell in market.
+      [Greek: delta]. Casaticum, for houses.
+      Cf. _Otho_ II., Diploma to Monast. Volturno a. 983, et al. loc.
+    _b_. Ripaticum: General word for tolls and taxes for transport by
+     water. Cf. Diploma of Berenger II. v. _Ughelli_, Italia Sacra,
+   Tom. V. Also a Privilegium of Charlemagne, anno 787. v.
+_Ughelli_, Italia Sacra, Tom. V., a. 787. This privilegium
+confirms the laws of Liutprand, and shows how much the
+inhabitants of Como had to pay in various places in moving salt
+down the rivers of Lombardy.
+      [Greek: alpha]. Paliscitura,
+      [Greek: beta]. Trasitura,
+      [Greek: gamma]. Navium ligatura.
+      Wharfage dues.
+      [Greek: delta]. Portonaticum, harbor dues.
+      [Greek: epsilon]. Curatura, probably a tax on certain
+merchandise.
+      [Greek: zeta]. Passagio, probably same as preceding, but
+possibly a tax in favor of those going to the Holy Land.
+
+  8. _Auxilia_ (Occasiones) (dues from vassals):
+    _a_. Praestitiones.
+    _b_. Dona.
+    _c_. Gratuita.
+    _d_. Mutua.
+    More common after the year 1000 A.D.; but, for an example in the
+    year 878, see a Diploma of Lewis II., published by _Puricelli_
+  in his Monumenti della Basilica Arnbrosiana.
+
+III. Under head of "_lands owned by Crown or Publicum_":
+
+  1. _Terra Censualis_. Holder of t.c. owed these duties:
+    _a_. Glaudaticum,
+    _b_. Escaticum,
+    _c_. Herbaticum,
+    _d_. Datio,
+    _e_. Alpaticum,
+    _f_. Agrarium.
+    Payments for right to pasture cattle and swine on public lands.
+      Cf. Chron. da Volturno, a. 972. Chron. Farfensis. Privileg. Lud.
+      Pii, et al. loc.
+    _g_. Terraticum, amount of produce given for right to cultivate.
+    _h_. Pascuarium, payment for sheep pastured on the public land.
+    _i_. Boazia, tax levied on every pair of oxen; probably not
+      developed before XII. century.
+
+The taxes and so forth mentioned in this list are by no means all that
+were levied, but are a fair representation of them. After the year
+1000 their feudal character is even more strongly marked.
+
+[42:] This statement, while true of all integral parts of the Lombard
+kingdom, must, however, be modified in regard to the great duchies of
+Spoleto and Beneventum, which were under a different system of
+internal government from the kingdom of Lombardy proper--were, in
+fact, small tributary kingdoms under great dukes enjoying practically
+royal powers. The Duchy of Beneventum seems to have been divided into
+_gastaldata_, divisions of territory similar to the _civitates_ of
+Lombardy, but presided over by a gastald instead of by a _dux_ or
+_comes_. In the charter of division made between the dukes of
+Beneventum and of Salerno in the year 851--v. _Muratori_, Ant. Ital.
+Diss. X.--are mentioned "integra gastaldata, seu ministeria Tarentum,
+Latinianum, Cusentia, etc." And, at an earlier date, _Paulus
+Diaconus_--De Gest. Long., Lib. V., cap. 29--tells of a certain
+"Alzeconis Dux de Bulgaris," to whom Grimoald, Duke of Beneventum,
+gives "ad habitandum ... Lepianum, Bovianum et Inferniam, et aliis cum
+suis territoriis civitates; ipsumque Alzeconem mutato dignitatis
+nomine, de duce gastaldium vocari praecepit."
+
+[43:] v. _Muratori_: Script. Rer. Ital., Tom. III., Pars II., p. 162D.
+
+[44:] _Liutprandi_: Leg. Lib. VI., Leg. 29. v. _Muratori_: Script.
+Rer. Ital., Tom. I., Pars II.
+
+[45:] _Muratori_: Ant. Ital. Diss. X., Vol. I., P. I., p. 121.
+
+[46:] _Muratori_: Script. Rer. Ital., Tom. III., p. 155A.
+
+[47:] Ed. _Rhotari_: Leg. 23 and 24. v. _Muratori_: op. cit., Tom. I.,
+Pars II.
+
+[48:] _Liutprandi_: Leg. Lib. IV., 7.
+
+[49:] _Liutprandi_, Leg. Lib. IV., 8, says: "Si homines de sub uno
+Judice, de duobus tamen Sculdahis causam habuerint, etc."
+
+[50:] _Paulus Diaconus_: De Gest. Lang., Lib. VI., 24.
+
+[51:] _Muratori_: Ant. Ital. Diss. X., Vol. I., Parte II., p. 116.
+
+[52:] _Ughelli_: Italia Sacra, Tom. V.
+
+[53:] _Caroli Magni_, Leg. Lomb. 36: "Ut nullus homo in Placito
+Centenarii neque ad mortem, neque ad libertatem suam amittendam, aut
+res reddendas vel mancipia judicetur. Sed ea omnium in praesentia
+Comitum, vel Missorum nostrorum, judicentur."
+
+[54:] _Liutprandi_: Leg. Lib. V., 15.
+
+[55:] Chronicon Fontanellense, Cap. I. v. _Muratori_: Ant. Ital. Diss.
+X., Vol. I., Parte I., p. 117.
+
+[56:] _Rachis_, a decree of--existing in the Monast. of Bobbio. v.
+_Muratori_: Aut. tal. Diss., Vol. I., Part I., p. 118 (Diss. X.).
+
+[57:] _Liutprandi Ticinensis_: Historia, Lib. I., cap. 10. v.
+_Muratori_: Script. Rer. Ital. II., p. 431. _Pertz_, Monum.; Script.,
+Tom. III.
+
+[58:] The opposite sides of the question are ably presented by
+_Savigny_: Geschichte des Röm. Rechts, etc., Vol. I., p. 230 et seq.
+(trans.), and _Hegel_; Städteverfassung v. Italien, etc., I., page
+470, note.
+
+[59:] It is difficult to find an English word which intelligently
+renders the various names for these freemen in their judicial
+capacity, used by the different nations, such as _arimanni,
+rachinburgi, boni homines_, etc. Most English writers make use of the
+German word _schöppen_. I have taken the rendering "judicators" from
+Edward Cathcart, the translator of the first volume of Savigny's
+Geschichte des Römischen Rechts im Mittelalter.
+
+[60:] _Liutprandi_: Leg. 25, Lib. IV., 7.
+
+[61:] _Rachis_: Leg. No. 11.
+
+[62:] _Savigny_: Geschichte, etc., Vol. I., p. 233, trans.
+
+[63:] Preserved in the Archives of Farfa. Published by: _Mabillon_:
+Annales Ord. S. Benedicti, Tom. II., p. 154. _Muratori_: Script. Rer.
+Ital., Tom. II., Pars II., p. 341.
+
+[64:] We have confirmation of this from a document of the early part
+of the ninth century, which says: "De Vicariis et Centenariis qui
+magis propter cupiditatem quam propter justitiam faciendam saepissime
+placita tenent, et exinde populum minus affligunt, ita teneatur ... ut
+videlicet in anno tria solummodo generalia placita observent et nullos
+eos amplius placita observare compellat." From Worms Capitulary of
+_Lewis the Debonnair_, a. 829, c. 5. Also compare: Capit. V., anni
+819, Art. 14. Capit., Lib. IV., c. 57. (_Baluzii_, 616 infr., 788
+supr.) _Caroli Magni_, Leg. Long. 69. (_Canciani_ I., 157.)
+
+[65:] _Brunetti_: Cod. Diplom. Toscan. Doc. No. 18.
+
+[66:] _Bouquet_: Rerum Ghillicarum et Francicarum Scriptores.
+
+[67:] _Baluzii_: Capit. Reg. Franc. a. 789, Tom. V., p.
+746.
+
+[68:] Capit. I., Art. 13, anni 813. v. _Baluzii_: Capit. Reg. Franc.,
+Tom. I., p. 509.
+
+[69:] _Muratori_: Ant. Ital. Diss. X., Vol. I., Pars I., p. 115.
+
+[70:] _Caroli Magni_: Leg. Long. No. 92.
+
+[71:] _Sismondi_: Rep. Ital. du Moyen Age, Vol. I., p. 268.
+
+[72:] Capit. II., anni 819, Art. 2. v. _Baluzii_: Capit. Reg. Franc.,
+Tom. I., p. 605.
+
+[73:] Loc. cit. sup.
+
+[74:] _Caroli Magni_: Leg. Long. No. 116.
+
+[75:] _Caroli Magni_: Cap. Minora, anni 803, c. 20.
+
+[76:] "Adjutores Comitum, qui meliores, et veraciores inveniri
+possunt." _Lothar I_.: Leg. No. 49. v. _Muratori_: Ant. Ital. Diss.
+X., Vol. I., Parte I., p. 112.
+
+[77:] _Caroli Magni_: Capit. I., anni 809, Art. 22. v. _Baluzii_:
+Capit. Reg. Franc. I., 466 infr.
+
+[78:] _Lothar I_.: Capit. anni 873, Art. 9. v. _Baluzii_: Capit. Reg.
+Franc. Tom. II., p. 232. Leg. No. 48. v. _Muratori_: Diss. X., Vol.
+I., P. I., p. 112.
+
+[79:] _Muratori_: Ant. Ital. Diss. LXXVII., Tom. III., Parte II., p.
+189.
+
+[80:] Vid. _Tommasio_: Historia sanese, Lib. IV.; _Ughelli_: Italia
+Sacra, Tom. III., for this privilege.
+
+[81:] _Brunetti_: Cod. Diplom. Toscan. No. 8, a. 715. A priest named
+Gunthram says: "Nec cumquam ab episcopum Senensem coridicionem
+habuimus, nisi, si de seculares causas nobis oppressio fiebat,
+veniebamus ad judicem Senensem, eo quod in ejus territorio sedebamus."
+
+[82:] _Brunetti_: Cod. Diplom. Toscan. No, 8, a. 715. Germanus, a
+deacon, says: "Quoniam prelectus a plebe, cum epistola Warnefried [the
+Gastald of Siena] rogaturus ambulavi ad Luperceanum Aretine Ecclesie
+Episcopum et per eum consecratus sum."
+
+[83:] For example see a judgment of the year 771, in the Archivio of
+Lucca. For which vid. _Muratori_: Ant. Ital. Diss. LXX., Tom. III., P.
+II., p. 184.
+
+[84:] Good illustrations of all these statements are to be found in
+two documents in the Archivio Archivescovile of Lucca, of about the
+year 813. Vid. _Muratori_: Ant. Ital. Diss. LXX., Tom. III., Parte
+II., p. 184.
+
+[85:] Codex Carolinus--_Adriani I_., Epist. Nos. LV., LXXIX., LXXII.,
+L.
+
+[86:] _Ermoldi Nigelli_: Poema. V. _Muratori_: Script. Rer. Ital.,
+Tom. II., Pars II.
+
+[87:] _Muratori_: Ant. Ital. Diss, LXX., Vol. III., Parte II., p. 188.
+
+[88:] _Pertz_: Monum. German., Tom. IV., p. 176.
+
+[89:] It is true that _Muratori_ (Script. Rer. Ital., Tom. I., Pars
+II., p. 192) publishes a diploma to the monastery of Novantulanum,
+near Modena, purporting to be by Aistulf and of the year 753; and (in
+Ant. Ital. Diss. LXXI., Vol. III., P. II., p. 256) another by
+Desiderius to the monastery of Santa Giulia di Brescia, which seems to
+grant exemption and protection if not privilege. But in the first the
+formula employed is so exactly similar to that of the later Frankish
+documents issued for the same purpose, as immediately to excite
+suspicion; and in the second, Muratori himself finds something
+radically wrong with the chronology.
+
+[90:] An even better example can be found among Charlemagne's
+diplomas, by referring to one granted by him to the church of Reggio,
+and published by _Ughelli_: Italia Sacra, Tom. V., Appendice.
+
+[91:] See a charter given by Lothaire to Pietro, bishop of Arezzo in
+843, the year of the Treaty of Verdun, v. _Muratori_: Ant. Ital. Diss.
+LXX., Vol. III., Parte II., p. 196.
+
+[92:] See a law of Lewis II. of 855, made in the Diet of Pavia. v.
+_Muratori_: Script. Rer. Ital., Tom I., P. II. (added to Leg. Lomb.).
+
+[93:] Certain "dona," however, supposed to be voluntary, were always
+excepted. See a diploma of Louis of the year 854 to the monastery of
+St. Gall in Germany, where it describes the usual "dona" for _all_
+monasteries as "Caballi duo cum scuteis et lanceis." v. _Muratori_:
+Ant. Ital. Diss. LXX., Vol. II., Part II., p. 204.
+
+[94:] See a _privilegium_ given by him in the year 877 to the nuns of
+the Posterla, Sta. Teodata at Pavia. v. _Ughelli_: Italia Sacra, Tom.
+V.
+
+[95:] _Muratori_: Ant. Ital. Diss. LXX., Vol. III., Parte II., pp.
+196, 197.
+
+[96:] Probably the earliest of such privileges was one granted to the
+bishop of Modena by Guido in the year 892, and published by _Ughelli_:
+Italia Sacra, Tom. II., p. 98.
+
+
+
+
+
+End of the Project Gutenberg EBook of The Communes Of Lombardy From The VI.
+To The X. Century, by William Klapp Williams
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+The Project Gutenberg EBook of The Communes Of Lombardy From The VI. To
+The X. Century, by William Klapp Williams
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: The Communes Of Lombardy From The VI. To The X. Century
+       An Investigation Of The Causes Which Led To The Development
+         Of Municipal Unity Among The Lombard Communes.
+
+Author: William Klapp Williams
+
+Release Date: April 26, 2004 [EBook #12162]
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK COMMUNES OF LOMBARDY ***
+
+
+
+
+Produced by Keith Eckrich, Juliet Sutherland and PG Distributed
+Proofreaders
+
+
+
+
+
+JOHNS HOPKINS UNIVERSITY STUDIES
+
+IN
+
+HISTORICAL AND POLITICAL SCIENCE
+
+
+HERBERT B. ADAMS, Editor
+
+
+History is past Politics and Politics present History.--_Freeman_
+
+
+
+NINTH SERIES
+
+
+
+
+V-VI
+
+The Communes of Lombardy from the VI. to the X. Century
+
+AN INVESTIGATION OF THE CAUSES WHICH LED TO THE DEVELOPMENT OF
+MUNICIPAL UNITY AMONG THE LOMBARD COMMUNES
+
+
+BY WILLIAM KLAPP WILLIAMS, PH.D.
+
+NEWBERRY LIBRARY, CHICAGO
+
+May, June, 1891
+
+     "Est error spretus, quo Langobarda juventus
+     Errabat, verum loquitur nunc pagina sensum."
+
+
+RHOTARI: _Legum Prologus_.
+
+
+THE COMMUNES OF LOMBARDY FROM THE VI. TO THE X. CENTURY.
+
+
+
+PART I.
+
+
+THE LOMBARD CONQUEST AND ITS RESULTS.
+
+Before tracing the beginnings of renewed municipal life in Northern
+Italy, we must consider the conditions of land and people, which first
+rendered possible and then fostered the spirit of local independence
+of which such beginnings were the natural expression. To do this we
+must commence our researches with the first domination of the Lombards
+in the country.
+
+In detail the story of the conquest of Northern Italy by the Lombards
+under Alboin, in 568, hardly differs materially from that of the
+inroads of other barbarian tribes of the north on the fertile plains
+of Italy. The causes were the same. Where the distinction is to be
+found from other such invasions, is in the results of the Lombard
+occupation, and in the different methods which the Lombards adopted so
+as to render their power and their possessions permanent. Let us look
+at the character of this invading host, which sweeps like a tide, at
+once destroying and revivifying, over the exhausted though still
+fertile plains of the Po and the Adige. Are we to call it a moving
+people or an advancing army? Are we to call its leaders (_duces_, from
+_ducere_ to lead), heads of clans and families, or captains and
+generals? Finally, is the land to be invaded, or is the land to be
+settled? To all these questions the only answer is to be found in the
+conception of the absolute union of both the kinds of functions
+described. A people is moving from a home whose borders have proved
+too narrow for its increasing numbers; an army is conquering a new
+home, where plenty will take the place of want, and luxury of
+privation. It is not an army marching at the command of a strongly
+centralized power to conquer a rich neighbor, and force a defeated
+enemy to pay it service or tribute. It is a body which, when it has
+conquered as an army, will occupy as a people; when it is established
+as a people, will still remain an army. The sword was not turned into
+the ploughshare; but the power to wield the sword had given the right
+to till the land, and soon the power to hold the land was to give the
+right to wear the sword. It was the conquest of a highly civilized
+agricultural people--whose very civilization had reduced them to a
+stage of moral weakness which rendered them totally unfit to defend
+themselves--by a semi-barbarous people, agricultural also, but rude,
+uncivilized, independent, owning no rulers but their family or
+military chiefs.
+
+The conquerors took possession of the country simply as they would
+take possession of a larger farm than they had before owned. Their
+riches were only such as served for the support of men--herds, land,
+wine and corn. They needed cultivators for their large farm, so
+instead of destroying every one with fire and sword, they spared those
+of the weak inhabitants of the land who had survived the first
+onslaught, in order that they might make use of farmers to cultivate
+their new possessions. In most cases they did not make slaves of them,
+but tributaries; and after the land had been portioned evenly among
+the soldiers of the invading host, the original holders of the land
+tilled it themselves, under a system somewhat kindred to the metayer
+system as to-day existent in Tuscany and elsewhere, paying, according
+to the usual custom adopted by the northern conquerors of Italy,
+one-third of the produce[1] to their new masters. The whole
+organization of society was on a purely military basis; the soldiers
+of the conquering army, although they became landed proprietors, none
+the less retained their character and name of soldiers. Hence when
+these crude forms of social life began to crystallize into the
+carefully marked ranks of the feudal system, the "_milites_"[2] formed
+the order of gentlemen, the smaller feudatories, who gave land in fief
+to their vassals--generally the old inhabitants--while holding their
+own nominally from the "_duces_," or dukes, the representatives of
+their former leaders in war, who held their tenure direct from the
+king or chief.
+
+As the object of this paper is particularly to trace the origin and
+early sources of municipal life in Northern Italy, let us turn and see
+what were the effects on the already existing towns, of the inroads of
+these hordes of northern barbarians. At the outset I must state
+emphatically that all our sources of information as to the
+institutional history of this obscure period are exceedingly vague,
+meagre and unsatisfactory. The progress of events we can follow with
+more or less accuracy from the mazy writings of the early chroniclers;
+we can get a fair idea of the judicial and the legislative acts of the
+ruling powers by studying and comparing the different codes of laws
+that have come down to us; but in a study of the internal municipal
+life of these early ages, the student meets again and again with
+increasing discouragement, and soon finds himself almost hopelessly
+lost in a tangle of doubts and inferences.
+
+In the almost total want of direct evidence, from casual mention
+gleaned from the writings of the chroniclers, and from occasional
+references in the law codes to municipal offices and regulations,
+enough indirect evidence must be sought, to enable us, by the aid of
+our powers of reasoning, if not of our imagination, to build up some
+history, defective though it be, of municipal life, down to the time
+when the internal growth and importance of the cities rendered them
+sufficiently prominent political factors to have their deeds and their
+progress chronicled. Besides, if we consider the modes by which the
+communes slowly rose to independence, it will easily be seen that to
+have every step of this slow and almost secret advance chronicled and
+given to the world, would have been entirely contrary to the policy of
+the cities. These hoped to gain by the neglect of their rulers, and
+while clinging pertinaciously to every privilege ever legally granted,
+to claim new ones constantly, putting forth as their sole legal title
+that slippery claim of precedent and time-honored custom. In that age,
+books of reference to prove such claims would have been found alike
+inconvenient and unnecessary. All the city folks wished was to be
+forgotten and ignored by their superiors, as any notice vouchsafed
+them was sure to come only in the restraint of some assumed privilege
+or the curtailing of some coveted right.
+
+Hence the principal cause of the poverty of record through all this
+period of slow if steady growth; and the disappointed investigator
+must in some measure console himself with such a reason. It may be
+asked, what of the various local histories of different towns, whose
+authors seldom fail to give highflown accounts of their native cities,
+even in the remotest and darkest ages of their history? To this
+question there is a double answer: in the first place the uttermost
+caution must be enjoined in using such material; not only in
+separating fact from baseless tradition of a much later period, but in
+making large allowance for the heavy strain which a strong feeling of
+local patriotism, or civism, puts upon the conscience of the author.
+In the second place it must be remembered that most of such histories,
+or at least of the monkish or other records from which they derive
+their source and most of their material, were written to the glory or
+under the auspices of some dominant noble family or ecclesiastical
+institution, to whose laudation in ages past and present the humble
+author devotes all the resources of his mind, and I am afraid far too
+often of his imagination.
+
+Let us now cast a glance at the exhausted civilization of the towns of
+Northern Italy, where the formal shell of Roman organization still
+remained, after the vigor and life which had produced it had long been
+destroyed. To describe the condition of the Roman _municipia_ at the
+time of the Teutonic invasions is but to tell a part of the story of
+the fall of the Roman Empire. The municipal system, which from the
+names and duties of its officers would seem to represent a surprising
+amount of local independence in matters of administration, even a
+collection of small almost free republics, had lost all its strength
+and all its vital power by the grinding exactions of a centralized
+despotism, which was compelled to support its declining power by
+strengthening the very forces which were working its destruction, at
+the expense of destroying those from which it should have gained its
+strength. The stability of every state rests ultimately on the wealth
+and character of its citizens, and any government which exhausts the
+one and degrades the other in an effort to maintain its own unlimited
+power has its days numbered. Under the despotic rule of the later
+emperors the municipalities had lost all their power, though in theory
+their rights were unassailed. The _curia_ could elect its magistrates
+as of old, and these magistrates could legislate for the _municipium_,
+but by a single word the imperial delegate could annul the choice of
+the one and the acts of the other.
+
+The economic condition of the people amounted to little short of
+bankruptcy; the possession of wealth, in landed property especially,
+having become but a burden to be avoided, and a source of exaction
+rather than of satisfaction to the owner. The inequalities of burdens
+and of rank were great. The citizens were divided into three classes:
+(1) the privileged classes, (2) the Curials, (3) the common people.
+The first, freely speaking, were those who had in a manner succeeded
+in detaching themselves from the interests of the _municipium_ to
+which they belonged; such were the members of the Senate, including
+all with the indefinite title of _clarissimi_, the soldiers, the
+clergy, the public magistrates as distinguished from the municipal
+officers. The second consisted of all citizens of a town, whether
+natives--_municipes_--or settlers--_incolae_--who possessed landed
+property of more than twenty-five _jugera_, and did not belong to any
+privileged class: both these classes were hereditary. The third, of
+all free citizens whose poverty debarred them from belonging to either
+of the preceding divisions. On the second of these classes, the
+Curials, fell all the grinding burdens of the state, the executing of
+municipal duties, and the exactions of the central government.
+
+It is not necessary for me to trace here the development of that
+financial policy which resulted in the ruin, I may say the
+annihilation of this order. Suffice it to say that it formed the
+capital fund of the government which exhausted it, and when the source
+of supply was destroyed, production ceased, and with it, of course,
+all means of governmental support. Where the extinction of this
+"middle class" touches the point of our inquiry is in affording an
+explanation of a circumstance in the history of the Lombard
+subjugation of the Italian towns, which without consideration of this
+fact would appear almost incomprehensible. I refer to the utter
+passivity of the inhabitants, not only in the matter of resistance to
+attack, which the greater strength and courage of the invaders perhaps
+rendered useless, but in what is more surprising, the fact that after
+the easy conquest was completed, we hear nothing of the manner in
+which the people adapted themselves to the totally new condition of
+life and of government to which they were subjected. Even if we can
+understand hearing nothing of what the people did, at least we should
+expect to hear what was done with it, what it became. The story of its
+resistance might be short and soon forgotten, but the story of its
+sufferings, of its complaints, of struggle against the entire change
+in the order and character of its life, should be a long one.
+
+But of this no record, hardly mention even appears. When the central
+government falls and the last of its legions are destroyed or have
+departed, there seems to be no thought of any other element in
+society. If the evidence of the law codes did not tell us that a Roman
+population existed, history would record little to indicate its
+presence. Not only is even the slightest trace of nationality effaced,
+but the merging of the old conditions of life into the new seems of
+too little consequence to merit even an allusion. This state of
+affairs, as said above, is caused by the annihilation, by the despotic
+power of the central government, of that middle class which in times
+of prosperity formed the sinews of the state. Of the other classes,
+the privileged class, with the exception of the clergy, fell of course
+with the government which supported it, and the common people
+possessed no individuality, no power, and hardly any rights. Such,
+then, was the condition of the towns at the time of the Lombard
+invasion, a condition of such abasement and such degradation as
+literally to have no history; a condition which indeed can truthfully
+be said to merit none.
+
+History tells the story of every great nation on the face of the earth
+in three short words, growth, supremacy, decline. Vary the theme as
+you may in the countless histories of countless peoples; subdivide the
+course of its progress as you will, allowing for different local
+causes and different local phenomena, the true philosophy of history
+teaches that no real departure from this natural development is
+possible. But what if by the violent intervention of some new and
+entirely foreign force, another development and another life is given
+to the inanimate ashes of the old? What if some nation, fresh from the
+woods and fields of the childhood of its growth, come with
+overwhelming yet preserving strength and infuse new blood into the
+withered veins of its predecessor? This is the problem we now have
+before us. How many writers of Italian history have entitled this
+chapter in its development "A new Italian Nation formed"! It is not
+the old glories of Rome, which had been Italy, returning; it is a new
+Italian nation formed. Each word tells a story of its own. It is not
+the old galvanized to a second life; it is the new superimposed,
+violently if you will, upon it. We do not hear of Athens or of Rome,
+of an Alexander or of a Caesar, of a city or of a man. It is an
+"Italian nation." It is the individualism of the independent spirit of
+the North, which "forms" a nation from the exhausted remains of the
+development of centralization of the South. The new idea of distinct
+nationality among races of kindred stock was already at work, even
+though it did not reach a formal expression till the Treaty of Verdun,
+more than two hundred and fifty years later.
+
+I do not mean to imply that we must in any measure ignore the passive
+force and influence of the old forms on the new. The old veins receive
+the new blood; the new torrent, overrunning everything at first with
+the strength of its new life, will find again, even if it deepen, the
+channel of the old river: a vanquished civilization will always subdue
+and at the same time raise its barbarous conquerors, if they come of a
+stock capable of appreciating civilizing influences. In the present
+case this means that the men of the North brought the new ideas that
+were to form modern history, and let their growth be directed and
+assisted, while they were yet too young to stand alone, by some of the
+framework which had been built up by the long experience of their
+Southern neighbors.
+
+To focus this thought on the immediate subject of our present study,
+this I think is the only and true solution of the tedious question, so
+much discussed by the two opposing schools of thought: whether the
+government of the Italian communes was purely Roman in its forms and
+in its conception, or purely Teutonic. The supporters of neither
+theory can be said to be in the right. You cannot say that the average
+city government was entirely Roman or entirely Teutonic, either in the
+laws which guided it, or in the channels by which these laws were
+executed and expressed. I think much time and much learning have been
+spent on a discussion both fruitless and unnecessary. We cannot err if
+we subject the question to a consideration at once critical and
+impartial.
+
+The widely differing opinions eagerly supported by different writers
+on this point, form a very good example of the deceiving influence of
+national feeling on the judgment in matters of historical criticism.
+For, on the one hand, we find many German writers ignoring entirely
+the old framework of Roman organization, and recognizing only the new
+Teutonic life which gave back to it the strength it had lost; on the
+other, a host of lesser Italian writers who magnify certain old names
+and forms, and mistake them for the substance, making all the new life
+of Italy but the return of a past, which belonged to a greatness that
+was dead. Many there are of this school in Italy, where you will often
+find to-day a commune of three hundred inhabitants, with its one or
+two constables wearing the imperial badge, "_Senatus Populusque
+Albanensis_" or "_Verulensis_," as the case may be. Truly a suggestive
+anachronism! It is true that in remote ages especially, when the
+records of history are few and uncertain--and the period we are
+considering in this paper can almost be called the prehistoric age of
+municipal institutions in Northern Italy--much can be learned and much
+truth inferred from the evidence of a name. But this is a species of
+evidence we can never be too cautious in using, as the temptation is
+always to infer too much rather than too little.
+
+In the following pages I will try to sift the evidence obtainable,
+with the impartiality of one trammeled by the support of no particular
+theory; always bearing in mind, however, one fact, all-important in a
+study where so much depends on nomenclature, namely, to give that
+shade of meaning and that amount of weight to any term which it
+possessed in the age in which it was used, carefully distinguishing
+this from its use in any earlier or later age. The importance of this
+caution will be soon seen when we come to discuss the origin of
+corporate life in the communes, where many have been misled by
+attaching to the words _respublica_ and _civitas_, for example, so
+continually recurring in the old laws and charters, a meaning which
+was entirely foreign to the terms at the period of their use. With
+this warning, we will turn to a consideration of the first effects of
+the inroad of the northern barbarians on the cities, whose exhausted
+and defenseless state has already been pointed out.
+
+One of the chief characteristics of the Teutonic tribes which overran
+Italy during the fifth and sixth centuries, was an innate hatred of
+cities, of enclosing walls and crowded habitations. Children of the
+field and the forest, they had their village communities and their
+hundreds, their common land and their allotted land, but these were
+small restrictions on their free life, and left an extended
+"air-space" for each individual and his immediate household. Homestead
+was not too near homestead, each man being separated from his neighbor
+by the extent of half the land belonging to each. The centralization
+of population in city life was a thing undreamed of, and an idea
+abhorred, alike for its novelty and for the violence it did to the as
+yet untrained instincts of the people. The strong, independent
+individualism of the Teutonic freeman rebelled against anything which
+would in any way limit his freedom of action: "ne pati quidem inter se
+junctas sedes," says Tacitus.[3] An agriculturist in his rude way, he
+lived on the land which supported him and his family, and feeling no
+further need, his untrained intelligence could form no conception of
+the necessities and the advantages of the social union and
+interdependence of a more civilized state of society; nor could he
+comprehend the mutual relations of the individual to the immediate
+community in which he lived.
+
+He could understand his own relation to and dependence on the state as
+a whole; alone he could not repel the attacks of neighboring tribes,
+alone he could not go forth to conquer new lands or increase the
+number of his herds. But why he should associate with others and so
+limit the freedom which was his birthright, for other purposes than
+those of attack and defense, of electing a leader for war, or getting
+his allotment of land in peace, was altogether beyond the horizon of
+his comprehension. He was sufficient unto himself for all the purposes
+of his daily life; to the product of his own plough and hunting-spear
+he looked for the maintenance of himself and his family, and the loose
+organization which we may call the state existed simply so as to
+enable him to live in comparative peace, or gain advantage in
+war--perhaps the first example of the new power in state-craft which
+was to revolutionize the political principles of the world; the
+individual lived no longer simply to support the state, but the state
+existed solely to protect and aid the individual.
+
+If all this be true of the Teutonic nations in general, in the earlier
+stages of their development, particularly true is it of the
+Lombards,[4] a wild tribe of the Suevic stock, whose few appearances
+in history, previous to their invasion of Italy, are connected only
+with the fiercest strife and the rudest forms of barbarism. History
+seems to have proved that tradition has maligned the Vandal; the Goth
+can boast a ruler raised at the centre of Eastern civilization and
+refinement; but the Lombard of the invasion can never appear as other
+than the rude barbarian rushing from his wild northern home, and
+forcing on a defenseless people the laws and the customs suited to his
+own rugged nature and the unformed state of society in which he lived.
+
+Such being the case, there is little cause for wonder that the
+invading Lombard directed his fury with particular violence against
+the corporate towns, whose strength was not sufficient to resist the
+attacks of his invading host. Like all other Teutonic tribes the
+Lombards were entirely unskilled in the art of attacking fortified
+towns; hence the only mode of siege with which they were acquainted
+was that of starving out the inhabitants, by cutting off all source of
+supply by ravaging and destroying the surrounding country. This fact,
+unimportant as it may seem at the first glance, materially affected
+the whole course of the later history of some of the Italian cities.
+By this means we are enabled, even at this early epoch, to divide them
+into two classes. First, those cities which, after a more or less
+short resistance, yielded to the rude tactics of the barbarians and
+were made subject by them, for example Milan and Pavia.[5] Second,
+those cities like Venice and Ravenna,[6] which, by means of a
+connection with the sea which the invaders could not cut off, were
+enabled to gain supplies by water, and so resist all efforts of the
+besieging host to capture them. They never fell completely under the
+Lombard yoke, and either retained a sort of partial autonomy or
+yielded allegiance to some other power. It is the cities of the former
+class that are the subject of this investigation.
+
+The condition of these inland towns at the time of the invasion was,
+as we have seen, weak in the extreme. The defenses, where they
+existed, were of a character to afford little protection, and the bulk
+of the inhabitants were so enervated from a life of poverty and
+oppression that they were almost incapable of offering any resistance
+in their own defense. They were reduced to such a condition as to be
+only too grateful if their rough conquerors, after an easy victory,
+disdainfully spared their lives, and left them to occupy their
+dismantled dwellings.
+
+This seems to have been the almost universal method of procedure. The
+Lombards did not in any sense, at first, think of occupying the
+conquered cities; for the reasons already given they despised, because
+they could not yet comprehend, the life of the civilian. They
+contented themselves with pulling down the walls, razing the
+fortifications, and destroying every mark which would make of the city
+anything but an aggregate of miserable dwellings. The inhabitants were
+for the most part spared, and left to enjoy, if the term can be used
+for such an existence, what the conquerors did not think worth the
+having. These felt the fruits of their victory to lie in the rich
+arable lands of the surrounding plains, and here they settled down,
+each in his own holding, portioned out by lot to every soldier; the
+town being considered but as a part of the _civitas_ or district, if I
+may use the term, of the _dux_ or overlord, from whom the several
+_milites_, or landholders of the surrounding territory, had their
+tenure, and who himself held directly from the king.
+
+It is the very insignificance of the municipal unit at this time that
+makes it so difficult to determine anything accurate of its position.
+It existed, but little more can be said of it; indeed, even this
+statement might be questioned, if we make that term signify a
+corporate existence, as will be seen further on when we come to
+discuss the question of the unbroken corporate existence of the towns.
+In a feudal age, or in an age of incipient feudalism, obligation,
+either claimed from an inferior or yielded to a superior, is a good
+index of rank and importance. Until we find the cities fulfilling
+certain obligations required by a higher power, we can learn little to
+tell of their condition or of their internal history. On the other
+hand, when we find the time come for fulfilling certain obligations,
+we can safely argue that the cities have acquired certain functions
+which put them in a position to meet the obligations which their
+growing importance has caused to be exacted of them. To trace these
+steps accurately and satisfactorily is impossible, but by the aid of
+collateral evidence a rough idea of the epochs at least of their
+progress can be gained.
+
+For this first period, then, we see the towns reduced to the lowest
+depths of wretchedness and disintegration; critically speaking hardly
+existing, but simply holding together. In studying institutions and
+tracing the course of their development, we must always remember that
+the uninterrupted continuance of their history may depend as much on
+the moral force of their existence as on the more limited and defined
+fact of their accurate and legal recognition by others. In every
+society a state of fact must in time become a state of law, as wise
+legislation is more the recognition by law of existing conditions than
+the formulating of new codes. So the towns, even at the period
+immediately succeeding their conquest by the Lombards, though their
+corporate existence cannot be claimed, nevertheless cannot be said in
+any measure to have ceased to exist; for as collections of individuals
+and of dwellings they were there, with an individuality uneffaced
+though as yet unrecognized.
+
+It was a period of utter stagnation, of suspension of life, but the
+source remained intact, from which, by the evolution of events and the
+progress of time, seeds were to spring that only needed external
+pressure to force them into a growth, slow indeed but certain, and in
+the end fruitful. A transition period we might call it. The theory of
+Roman universal domination, by relegating to the central power all the
+_political_ functions of the municipality and leaving it only its
+_civic_ ones, and these in later imperial times grudgingly and with an
+impaired independence, had left it simply an administrative instead of
+a political division of the state. In the flush of triumph the rough
+hand of the barbarian overthrew the framework of administration, and
+at first failed to recognize the necessity of replacing it by any
+other. The passivity of the conquered inhabitants--the cause of which
+has already been explained--was such that a long period elapsed before
+they realized that to regain in some measure the position of local
+independence that they had lost, and to free themselves from the
+shackles of dependence on the rural communities in which they were
+placed--a dependence forced upon them by the natural development of
+the new state system of their Teutonic conquerors--some common effort
+at organization was needful, for purposes at least of self-defense.
+That this effort came from the town itself, from the people and not
+from the external power of the ruler or overlord, is the fact which
+first makes the history of these municipalities interesting.
+
+There are two facts, however, which, even at this early date, begin to
+influence the internal history of the communes. These are the
+influence which the Church,[7] through its bishops, began to attain in
+the civil affairs of the country; and the idea beginning to gain
+currency that the locality where a number of individuals, however
+wretched in state, were collected together, would afford a safer
+refuge than the open country to the oppressed, the homeless and the
+outcast. I will briefly consider the latter first, as of less
+importance, though not unconnected with the former.
+
+In the period of great confusion in all relations of property which
+ensued from the Lombard military system of small independent
+landholders and a few great overlords, with a nominal royal ownership
+of title, and before the feudal system was established, with its iron
+rules in regular working order, constant inequalities of wealth and
+consequent changes in the relative positions of individuals were sure
+to ensue. In practice if not in theory, might makes right in such a
+state of society. The weaker goes to the wall, and the stronger gains
+in strength by his downfall. Besides, it was long before the roving
+and predatory instinct of the barbarian was moderated; and his weaker
+neighbor was the natural prey of the more powerful landholder, an
+example not unfrequently set by the king himself. Now, if the weaker
+party remained to brave the attack and was conquered, he was reduced
+to a state of villeinage or of dependence more or less complete. If on
+the other hand he wished to escape this change of condition, where was
+he to find refuge? The only safe asylum in those days of rapine and
+violence was that offered by the Church and its precincts. The church
+of the greatest importance in the district, in this early age when no
+walled monasteries existed, would without doubt be that situated
+within the limits of the nearest town. To this haven then comes the
+outcast, hastily collecting his family and all of his wealth of a
+portable character; the country loses a small landed proprietor, but
+the town gains a citizen, a freeman, a member of the upper class.
+
+Of course many of the fugitives who sought asylum in the towns were as
+low as the great numbers of the semi-servile population, but much that
+was new and of a better character and intelligence, and even a large
+amount of property, which later gave birth to commercial and other
+interests, were introduced by members of the higher classes fleeing
+from their more powerful neighbors. Also the human instinct of seeking
+fellowship in misfortune probably assisted in increasing the numbers
+which in times of trouble flocked towards the towns as a haven of
+refuge and a place to seek support. To see how they were in a measure
+enabled to attain these results, we must now consider the first of the
+two facts mentioned above, that is, the power in civil affairs gained
+by the bishops.
+
+When the Lombards of the conquest, in their hatred of everything which
+savored of the old Roman civilization, overthrew all the established
+offices of city government to replace them with others of barbarian
+name and origin, or to leave them unfilled altogether, among the
+time-honored officers of the Roman rule was one whose powers were
+everywhere recognized, even if at present it is a little difficult to
+define with precision his duties. I refer to the _defensor urbis_.
+This office came into prominence when Roman despotism found that it
+was overreaching itself by grinding down the defenseless _curiae_
+below the margin of productiveness. The duties of the _defensor_ were,
+as his name implies, to protect the powerless inhabitants of the
+cities against the exactions of the imperial ministers. He enjoyed
+many important privileges of jurisdiction, and these were materially
+increased by the legislation of Justinian; and soon the _defensor_
+became an important officer of the municipality.[8] What particularly
+concerns us is that he was the only municipal officer who was elected
+not by the votes of the _curia_ alone, but by those of the whole
+people forming the _municipium_, including the bishop and his clergy.
+Now in the period just preceding the invasion of the barbarians, the
+clergy alone possessed any energy and influence; so into their hands
+fell the control of this new institution, and consequently all that
+remained of life in the municipal system.
+
+As in city matters these conditions remained unaltered after the
+coming of the Lombards, what was more natural than that the bishops
+should retain their moral position of defenders of the people, even if
+we admit that the form of the office fell with the old administration?
+To these considerations we may add two important facts: that the
+office of bishop was for a long time the only one in the election to
+which the people--and by this term I mean the people as a whole, not
+the _populus_ of the old laws and charters--had any voice whatever;
+and that the bishop, from his spiritual position as pastor of the
+flock, and from his civil position as having great legal influence in
+the town and being probably the only man of superior intellect
+interested in the internal affairs of the community, was the proper
+and most effectual mediator between the people and their temporal
+rulers. Hence arose that important influence of the bishops which was
+to have so perceptible an effect on the subsequent development of the
+principles of liberty in the communes.
+
+To appreciate properly, and to give the true value to this power in
+its later progress, we must remember one thing: that it did not have
+its origin by any seeking of power by either the Roman or the
+Ambrosian church as a body, in any concerted effort to extend the
+ecclesiastical power at the expense of the civil. It came from the
+spontaneous effort of the pastor, the natural and at that time the
+only protector of the people, trying to save his flock from the
+extortion and the injustice of their temporal rulers. In addition to
+this it must be remembered that at that time the office of the bishop
+was the only one where even the shadow of the democratic idea was
+preserved, the only one where the lowest of the people, theoretically
+at least, had a voice in the election. In later times, when the feudal
+system becomes established in its completeness, the position of the
+bishop undergoes a great change, as his relations to the state and to
+society become more complex in their character; and his importance in
+the community, while it at first increases, in time surely diminishes,
+under the influence of his double relation of lord and vassal to some
+higher temporal power. When he in his turn becomes the possessor of
+political power as a great baron or as head of a _civitas_, his
+interests, and consequently his influence, are concerned with
+intriguing and with efforts for his own political advancement, in many
+cases leaving but few traces of the old relation of "defender of the
+people." It is, however, of importance to note that this decline in
+his prominence in civil life is commensurate with the diminished need
+by the people of his protection, owing to the steady increase in the
+security and independence of their position.
+
+To sum up briefly the chief characteristics of the early and obscure
+period which we have been considering, I think we can truly call it a
+transition period, and its history a tottering bridge from the dead
+Roman municipal system of the past, to the new state and city life of
+the future; from a state of society where, as we have seen, the city
+had changed from a political to an administrative division, to one
+where the city was to prepare itself again to claim, and eventually,
+by the growth of internal resources, to gain the lost function of
+sovereignty. The condition of the people during this time we have seen
+to be wretched in the extreme; the dismantled city but a bunch of
+comfortless dwellings; its inhabitants but a semi-servile population,
+with a small admixture of refugees of a better class; the city
+occupying but a subordinate place as part of the rural holding within
+whose limits it stood; whatever of wealth it contained an easy if not
+a legitimate prey to the turbulent spirits, whose mutual contests kept
+the surrounding country in a continual state of disturbance. The only
+men of any influence in the community we have seen to be the bishops,
+who, while steadily gaining in rank and power, stood forth as
+defenders of the people. During all this time, however, the new sap
+brought by the northern conquerors has been slowly but steadily
+entering into and forming the constitution of the people. The chaste
+and uncorrupted Northmen have by means of legitimate intermarriage
+with the best of the enervated inhabitants of the land, raised up an
+almost new race, who combine in their nature the humanizing effects of
+the old civilization with the love of independence and the temperate
+virtues of the northern conquerors, a race willing to benefit by the
+experience of the past, and resolved to carve out for itself a new and
+independent future.
+
+
+
+PART II.
+
+ELEMENTARY SOURCES OF MUNICIPAL UNITY IN LOMBARD AND FRANKISH TIMES.
+
+
+In the second part of this paper we have to consider a period of
+development rather than one of transition, of growth rather than of
+change. We have before us the task of tracing the advance from a
+period of barbarism to one when the feudal system had obtained an
+almost complete domination over the social system of Europe.
+Considering the principles which lay at the base of the society of new
+Europe, this system is a natural, indeed an unavoidable evolution from
+the stage of barbarism and social disorganization. The confusion in
+all social and economic relations consequent on the combination of the
+old and the new elements in European life, had led to a state of
+disintegration that could not continue. A new regulative force was
+required which would at the same time have power sufficient to control
+the various warring elements with which it had to deal and reduce them
+to some sort of harmony, and yet which would not in its nature be in
+opposition to the decentralizing spirit and the idea of individual
+independence, which formed the most marked characteristic of the
+dominant element of the new society. Feudalism sprang from the midst
+of barbarism not by a sudden birth, but by a growth at once natural
+and necessary: natural, because it was but a regulation by law of
+conditions produced by the character of the people and their mode of
+life; necessary, because the progress of civilization was carrying
+society ahead of the stage of anarchy and barbarism in which the
+overthrow of the old regime had left it.
+
+The economic changes which were produced by the transition to the new
+principles represented by the feudal system, are as great and in their
+way as important as the political ones. When we say that feudalism
+represents the transfer of the dominant power from a central head to
+scattered members, from the capital to the castles, we speak of it in
+its most prominent, its political character. But we must not forget
+that this transfer also meant a great economic change in the
+organization of society: that it meant a transfer of the seat of
+economic importance from the city to the country; the spirit of the
+times requiring, especially in the earlier stages of the development
+of the institution, that the seat of wealth should follow the seat of
+power. I note this now because we shall soon have occasion to consider
+how important a factor, in the earliest period of the development of
+the cities, their entire lack of prominence in both political and
+economic affairs was to prove itself. Under the old Roman system, as
+we have seen, the city was the important unit: Rome was a subduer and
+an upbuilder of cities. Under the new Teutonic element the land is
+what is brought into prominence, and the possessor of it into power.
+The dominant member of society is the landowner and not the citizen.
+In ancient society the "citizen" need own no land; in the modern
+society of the feudal age, the "gentleman" could not be such without
+owning land.
+
+This opposition between the citizen, the burgher, and the landowner,
+the baron, leads us to a conclusion of the utmost importance to the
+whole study of city life during the middle ages. We note the universal
+prevalence of the _forms_ characteristic of the feudal system, and
+from this we conclude that its _principles_ were as universally
+adopted. Now this is to a certain extent an error. There were certain
+institutions which from the very nature of their origin and of the
+principles on which they were based, must have been, at once in their
+idea and in their structure, opposed to the fundamental principle of
+feudalism. The Roman Church, for example, conformed itself to the
+forms and customs of this system, but never lost its structural unity
+and centralization, ideas founded on principles which stood in direct
+opposition to those of feudalism. So it was, though perhaps in a less
+degree, with the cities. Though adapting themselves in many ways to
+feudal forms, here the idea of democracy was as strong in its
+opposition to the dominant principle of feudalism, as ever was that of
+centralization in the Church. The people, in their own conception at
+least, stood out as an organic unity, and they considered their rights
+and duties as matters which concerned them collectively, not
+separately, as the commonwealth, not as individuals. Of course it was
+long before any such opposition assumed a definite form and shape,
+before even the people became conscious of its existence; but what I
+wish to point out is, that it was there in fact from the beginning,
+and must have formed a structural part of the development of city life
+in the middle ages.
+
+In outlining the course of the history of institutions, it is seldom
+that we are so fortunate as to find definite landmarks by which we can
+accurately mark the chronological course of their development. The
+giving of definite dates for the progress of ideas is in most cases
+both misleading and illusory, as, except in instances of violent
+revolution, changes are apt to be gradual, rather than immediate and
+arbitrary. But we can indicate the periods of progress by comparing
+them with the contemporary political changes, and roughly designate
+their eras by the dates of prominent political events. In doing this,
+however, we must always remember that the dates given, while definite
+from a political standpoint, are in most cases, from an institutional
+standpoint, only indicative of a more or less extended period of
+change. This fact being recognized, let us proceed to examine the
+changes introduced into Italy by the Carlovingian rulers, and the
+condition of the society upon which these changes were engrafted.
+
+When in the year 773-774, Charlemagne, in pursuance of his idea of
+universal empire, and aiding the Pope as "Patricius" of Rome, entered
+Lombardy with his army, took Pavia after a siege of six months, and
+shut up Desiderius in a monastery, he found in Lombard society a well
+defined, if not a perfectly developed system. In all their relations
+with other nations, the evidence of history proves the Franks to have
+been a conquering rather than a colonizing race; consequently we may
+expect to find that in their conquest of Lombardy, they rather gave
+her only new rulers without materially interfering with the condition
+of the inhabitants or altering their mode of life. The institutions of
+the Frankish nation were similar, in many important matters identical,
+with those of their neighbors across the Alps; so the changes
+introduced into the Lombard system by the Carlovingian rule are, with
+a few exceptions, not such as affect the integral structure of
+society, but for the most part only such as refer to the character and
+position of the central or ruling power.
+
+I say with a few exceptions, for among these very exceptions are to be
+found certain alterations in the government of the cities, introduced
+chiefly by the necessities of the system of central government
+established by Charlemagne, but also partly by the claims of
+individuality, which at this time first began in the cities timidly to
+call for recognition. The very relation of the cities with the central
+power seems to me to be a much more important factor in their growth
+during this period than is generally supposed; for it not only secured
+to their inhabitants better chances of justice and protection from the
+powerful local rulers, but, bringing them, through certain officers,
+into direct connection with the head of the state, added not a little
+to their moral importance, a condition which in a growing community is
+always closely followed by an increase of material importance.
+According to their size they were the seats of courts of varying
+degrees of importance, and from them as centres proceeded the acts of
+royal officers, both ordinary and extraordinary. Ticinum was the
+capital, where in Lombard times the king had his palace.[9]
+
+For a satisfactory study of the development of the municipal
+institutions we need a thorough understanding of the organization of
+society at this time, and especially of the relations which the
+municipal and rural communities bore to one another and to the
+government. I will endeavor to give, therefore, a description of
+Lombard society about the close of the eighth century, as brief as is
+consistent with a clear understanding of these relations, and as
+complete as the great difficulties of the subject will permit,
+pointing out, whenever they are authentically traceable, the changes
+introduced in consequence of the Carlovingian conquest.
+
+When we reach in Lombard history the period when the power of the
+native kings was first overthrown by foreign arms, we are no longer
+confronted by many of the problems which necessarily formed an
+important part of the earlier portions of our investigation. I mean
+the problems which arise in a state of society where the mass of
+individuals forming it is made up of two elements, a conquering,
+dominant one, and a conquered, subject one. During the two centuries
+elapsed since the Lombard barbarians conquered Italy, the two races,
+originally so different in their ideas and in their character, so
+opposed in their customs and in their nature, have been slowly but
+surely blending together, on the strength of common environment and by
+the necessities of mutual relations: so that by the last half of the
+eighth century, we can truly say that national differences, as such,
+have disappeared, and left behind them a single race, a combination
+but still a unity. We no longer have to deal with a double
+nationality, with the northern conquerors and their southern victims,
+with the oppressed and their oppressors. In considering the
+development of the institutional life of the people, we need no longer
+seek for differences, but may assume the easier task of tracing
+similarities. In a word, we no longer speak of Lombards and of Romans,
+but describe all that remains of both by the new word _Italians_.
+
+It is not within the scope of this enquiry to trace the various steps
+or indicate the various influences, the civilizing effect of the
+Church, the restraining power of the law, by which this complete
+amalgamation of two distinct races became an accomplished fact; we
+need only to note that the unity of the race was achieved. Even
+Macchiavelli recognizes this fact and, speaking of the time of the
+Carlovingian conquest, in the brief review of the history of all Italy
+which forms the first part of the first book of the "Florentine
+History," he truly says that, after two hundred and twenty-two years
+of occupation by the Lombards, "they retained nothing of the foreigner
+save the name."[10]
+
+But we must always bear in mind that it was not a process of
+absorption of one race by another, but a process of combination, of
+amalgamation; a levelling process, by which some members of the
+conquered people, by natural and economic causes, were raised to the
+level of their superiors; and on the other hand, some of the
+conquerors, by reason of similar causes, fell to the rank of the
+subject population. By manumission and by the various forms of
+vassalage more or less honorable, and by gaining some economic
+importance by trade and other means, many of the descendants of the
+Roman population gained admission to the ranks of the Arimanni, and
+obtained the full franchise by the possession of landed property. By
+forfeitures, consequent poverty and ultimate pauperization, many of
+the Lombard stock lost their rank and their lands and entered the same
+state of vassalage with the great body of the people. We see evidences
+of this change, this levelling up and levelling down, all through the
+military code of Liutprand, and in the later one of Aistulf can even
+more distinctly trace its progress; and without entering into further
+detail, we can definitely state that, by the time we are now
+considering, all traces of distinct race-origin had disappeared in the
+mass of the people, and the only safe distinction that we can draw is
+to say that among the families of the dukes and greater nobles, the
+Lombard stock was preserved comparatively pure, and that the serf
+population was, generally speaking, of Roman descent.[11]
+
+
+                       KING
+          +--------------+--------------+
+          |              |              |
+        COUNTS         DUKES         GASTALDS
+                         |
+          +--------------+--------------+
+          |              |              |
+        CUTANEI       SCABINI       SCULDAHIS
+     (LATER BARONS)
+      | | | | |
+      | | | | +-------------------------------+
+      | | | +-------------------------+       |
+      | | +-------------------+       |       |
+      | +-----------+         |       |       |
+      |             |         |       |       |
+     ARIMANNI       |         |       |       |
+                 MASNADA      |       |       |
+                            ALDII     |       |
+                                    SERFS     |
+                                            SLAVES
+
+     The above table, while its divisions must not be taken too
+     literally, will, I think, give some indication of the
+     estimation in which the various classes of society were
+     held. It is too early yet in the development of the feudal
+     system to say that the derivation lines show the course of
+     an absolute feudal tenure, and they are not meant for that
+     purpose, but simply to indicate the succession of the
+     inequalities of rank.
+
+Turning now to the territorial divisions of the country at this
+period, we find them practically unchanged. The _civitas_ still stands
+as the sectional unit; the territory with its city still represents
+the administrative division of the state. It is fundamental to a
+correct understanding of the early development of communal
+institutions that we should have a thorough knowledge of the meaning
+of this term _civitas_; of the extent of its application and of its
+limitations. I used the words "territory with its city" in defining
+the administrative division of the state, and perhaps this term
+describes the _civitas_ better than any single word would do. In the
+Roman municipal system we have the city with its surrounding
+territory, over which extends the jurisdiction of the _curia_; in the
+Lombard system we have the territory, the land, in some part of which
+is located a city, a fortified place.
+
+This is to my mind the important point which settles satisfactorily
+the vexed question of the dominance or the disappearance of Roman
+influences. The institutions of the Lombards were similar in character
+to those of the other Germanic races, and the continuance of any
+overruling municipal influence among them would have done violence
+alike to their traditions and to the nature of their race. The old
+municipal predominance as a system disappeared, the old municipal
+divisions and many of the minor forms and offices as a fact remained.
+It is these latter which give some color to the arguments of writers
+like Savigny,[12] who endeavor to maintain the continuance of the old
+Roman _curia_. They find evidence of the continuance of old
+boundaries, of many old names and many old executive functions, and
+fail to appreciate that the principle which lay back of and was making
+use of these old forms as convenient channels for the expression of
+its power and of its control, was an entirely new one, based on ideas
+fundamentally opposed to those of the civilization it had conquered.
+This slight warning is necessary so as to avoid any error in the
+conception of the significance to be attached to the geographical
+limits of the divisions of territory we are considering.
+
+The word _civitas_ has the same signification as _comitatus_, when
+that word was used with the meaning of a territorial division; and
+included all the territory, with its lands, its villages, its
+fortified places and its city, which came under the jurisdiction of a
+_dux_ or _judex_, or in Frankish times of a count, when we are
+strictly justified in giving it the more familiar name of _county_.
+From this we trace the Italian word _contado_, by the steps _comitatu,
+comitato, contato, contado_. The land division here indicated is
+indifferently called in the Lombard records _territorium, fines,
+civitas_, or _judiciaria_. The identity of all these terms admits of
+easy proof from all the documents, public and private; and numberless
+instances could be cited showing an interchange of terms in describing
+the same locality.
+
+I will mention in illustration of this fact the rather neat example of
+a document of the year 762, published by Brunetti[13] in his Codice
+Diplomatico Toscano, in which three of these terms are used
+interchangeably in the space of a few lines. It is a contract by which
+a certain Arnifrid, an inhabitant of Clusium--the modern Chiusi--who
+"in clusino territorio ... natus fuit," pledges himself to live on a
+certain property, and says "nullam conbersationem facias nec in clusio
+nec in alia civitate habitandum, nisi.... &c.," and promises to pay
+fifty _solidi_ if "pro eo quod ipsa pecunia demittere presumbsero aut
+de judiciaria vestra suaninse exire voluero." The contract is "Actum
+in civitate suana." We here see the words _territorium_ and _civitas_
+both applied to the territory of Chiusi, and the words _judiciaria_
+and _civitas_ both applied to the territory of Siena, and we only need
+to remember that things which are equal to the same thing are equal to
+each other, to recognize the identity of the terms. If we look at
+document number eight in the same collection,[14] we will further see
+the territory of Chiusi referred to as "fines clusinas."
+
+Hand-in-hand with the growth of episcopal organization we see another
+term coming into use in connection with the same land division, and
+this also is an administrative one, but of the church simply, and only
+made use of by conversion or carelessly when applied to a civil area.
+I mean the _districtus_, which term is properly applicable only to the
+jurisdiction of a bishop, and designates the limits of his episcopal
+power, that is, his diocese. The reasons for this term being used in
+later times occasionally for the civil division, the _civitas_, are
+twofold. They result, firstly, from the confusion which arose between
+matters of civil and ecclesiastical jurisdiction, when political power
+was given to a large number of the bishops, and when they united to
+their religious duties as pastor, the judicial and sometimes even some
+of the military duties of _comes_ and _judex_. And secondly, in the
+important fact that in almost all cases the boundaries of a bishop's
+diocese coincided more or less exactly with the limits of the
+authority of the state officers; so that the division which should be
+called a _civitas_ or _territorium_ from the point of view of civil
+government, should be called a _districtus_ from that of
+ecclesiastical government.
+
+Where we find at once the most important and, if not rightly
+understood, the most perplexing traces of the survival of the old
+Roman municipal system, is in this matter of territorial boundaries.
+According to the Roman system, as we have seen, the city was the
+important administrative unit, and each city was surrounded by a belt
+of rural lands, more or less large according to the size and
+importance of the city itself. This of course resulted in a division
+of the whole country into a number of districts whose boundaries were
+definitely marked, perhaps even jealously guarded. Now, when the
+Lombards took possession of the country, while they rejected the
+principle of the municipal unit, as foreign to the character and
+instincts of their race, they could not fail to see the practical
+utility of using, and the actual difficulty of overthrowing, a system
+of land division which custom and authority had united in rendering
+alike definite and convenient. What was the result? They made use of
+the old boundary lines, leaving their limits, as far as we can judge,
+untouched, and substituted as the fundamental principle of their
+administration, in place of the Roman idea of the _municipium_, the
+thoroughly Teutonic idea of the _civitas_ or country district.
+Coincident with these time-honored boundaries which served to mark the
+limits of the jurisdiction of the duke and the _judex_, are to be
+found those of the ecclesiastical power, of the bishop's diocese.
+
+This statement is confirmed by the many charters, immunities, etc.,
+addressed to the episcopal authorities; and direct proof of it may be
+had by reference to the controversy which arose in the first half of
+the eighth century between the bishops of Arezzo and Siena, which
+dispute was based on the fact that for reasons definitely stated these
+two dioceses formed an exception to the general rule. The strength of
+the proof lies in this exception, which had a well-known cause for its
+origin. Some of the documents[15] in the case, of the year 715, show
+that the bishop of Siena claimed for his jurisdiction certain churches
+which belonged to the diocese of Arezzo, basing his claim solely on
+the ground that these churches were situated in the _territorium_ of
+Siena. The bishop of Arezzo, on the other hand, claims them as part of
+his diocese, on the ground that they had formed part of it ever since
+the beginning of Lombard rule in Italy; and--which is the part of
+importance to us--gives as the only reason for their having been
+attached to the diocese of a neighboring _territorium_, the fact that
+at that early date there was no bishop in the _territorium_ of Siena.
+That a claim of such a character should have been based on the
+argument of the natural coincidence of the boundaries of _territorium_
+and diocese, is sufficient proof of the identity of these limits at
+that age. In a bull of the year 752,[16] Pope Stephen II. decides to
+adhere to the already existing diocesan divisions, and adjudges to the
+bishop of Arezzo the churches "quae esse manifestum est sub
+consecratione et regimine praefatae S. Aretinae Ecclesiae, territorium
+vero est prefatae nominatae Civitatis Senensis."
+
+We see then the perpetuation of the old Roman land divisions in the
+new commonwealth through the medium of the _civitas_ and the diocese.
+How long these divisions remained intact and what were the causes and
+the extent of their final overthrow, forms part of the history of the
+later development of the Italian communes. Here I will simply indicate
+the fact, that among the reasons which led in most instances to a
+departure from this system of land boundaries, are to be found some of
+the most important causes for the development of freedom and
+independent jurisdiction among the cities. It is to the destruction of
+this identity of interests and of government which existed between
+country and city, that is owed the ultimate predominance of the
+latter, and its regaining its ancient position of a self-centered
+unity; although in its new form we find this depending on the
+principle of individual liberty, instead of being based on the
+principle of government by a central power. Whether this emancipation
+from the bonds of a rural dependence was brought about by the practice
+later entered upon, of breaking up the counties into a number of
+smaller units with the so-called "rural counts," each ruling over a
+_castellum_ or fortified village; or by the fact that many of the
+bishops obtained political as well as religious control over a city
+and a limited area of the surrounding country, generally extending
+only three or five miles beyond the city walls; or whether this
+freedom was the result of the spontaneous growth of civic and economic
+life within the city itself; or finally, whether it came from a
+combination of all these and many minor causes, is a question
+which--for the early period of the development at least--the progress
+of our investigation will answer for itself.
+
+It will, however, be impossible for us to understand thoroughly the
+relations of the city under Lombard and Frankish rule to the central
+and to the local government, unless we know somewhat of the local and
+state officers who exercised jurisdiction within the territorial
+limits just described. By a consideration of their special powers and
+of their special duties, we must learn all that we can know with any
+degree of certainty with regard to the position of the city in these
+times. With this in mind, let us first examine the office whose
+functions it is at once the most difficult and the most important for
+us to understand in all its bearings--that of the _Judex_. We must
+consider it not only in the relation which it bears to the higher
+grade of officers, the Lombard duke and the Frankish count, but also
+in its relation with the lower officials who severally enjoyed more or
+less of the powers attached to its possession, namely, the gastald,
+the sculdahis, the scabino, and even the rural counts and the bishop.
+And in tracing its development we must note the influence it bore on
+the growth of the municipal idea, and also its connection with the
+political jurisdiction, commonly combined with it in the person of a
+single official.
+
+In considering the institutions of a comparatively crude state of
+society, such as existed in Europe in the early middle ages, it is
+misleading if not impossible to differentiate to any great extent the
+various functions and kinds of power which were commonly centered in
+the same individual. Consequently the only safe way to give a clear
+idea of the position and the powers of the _judex_, is to give a
+description of the various offices to which judicial authority was
+attached, in degrees more or less complete, corresponding to the
+social and political importance of the person exercising this
+authority.
+
+In the Lombard system, at the head of each _civitas_, as lord and as
+judge, was the _dux_, or duke. His title and his office being but the
+relic of his original high position of leadership in the army of the
+invasion, when his command was only subject to that of the king, the
+leader-in-chief of the army-nation and head of the military
+constitution, he held directly from the king, attended the royal
+_placita_ as the king's vassal, and held _placita_ of his own within
+his own jurisdiction, and over which he presided in person. Beyond the
+duties of his own particular jurisdiction his chief office was to
+assist the king by his presence and his counsel, when the king gave
+his judgments at the annual assembly in March, at the capital Ticinum.
+The importance of this concurrence of the _judices_ in all the king's
+decrees and official acts is illustrated by the fact that cases are
+rare in which this concurrence remains unmentioned. The usual practice
+is to introduce in the prologue which is commonly attached to the laws
+given out during each year of the king's reign, after the mention of
+the date "Kalendiis Martiarum," some such expression as "cum nostris
+Judicibus";[17] or "ad nos conjungerentur Judices";[18] or "per
+suggestionem Judicum";[19] to which is sometimes added the formula
+"omniumque consensum,"[19] or "cum reliquis nostris Langobardis
+fidelis." That legislation was not considered valid until such consent
+and advice was obtained, we can see from the prologue to the laws
+issued in the thirteenth year of the reign of Liutprand, in which he
+refers to certain important "causae" which had come under his
+jurisdiction, and for which additional legislation was necessary, the
+laws already existing failing to reach them. To meet the exigency new
+laws are enacted, but the king especially states that the cases must
+remain in abeyance until the new laws are confirmed by the _judices_
+at the next assembly in March. In speaking of these "causae" in the
+above-mentioned prologue to the laws, he says: "Proinde providimus eas
+usque ad suprascriptum diem Kalendii Martiarum suspendere dum usque
+nostri ad nos conjungerentur judices," etc.[20] This attendance at the
+royal _placita_ represents the most important of the legislative
+duties of the _judex_ outside of his own jurisdiction.
+
+Of other duties which caused him to leave the seat of his authority,
+the only ones we need here consider are his military duties; and with
+regard to these it will be sufficient to point out that the _judex_
+was the leader in war of the vassals and lesser lords, and indeed of
+all the inhabitants of the _judiciaria_ who were entitled or
+compelled, by the forms of their tenure, to bear arms. Ample proof of
+this is to be found throughout the law codes, but we need not pause to
+cite such confirmation, if we remember the natural evolution of the
+office of _dux_ from his position in the original Lombard military
+system. As a good example of this military leadership we may refer to
+the provisions of the twenty-ninth law in the sixth book of the laws
+of Liutprand.[21]
+
+What is of the greatest importance to us, however, in bringing out the
+relations of the cities to the rest of the community in Lombard and
+Frankish times, is the position of the _judex_ as duke and as count
+within his own _judiciaria_, that is, within the _civitas_ of which he
+was both lord and judge. It was through him, or perhaps I should say
+chiefly through him, that the city was at this period connected with
+the state; and it was principally by the exercise of the functions of
+his office that the city formed a part of the state. His official
+residence, in the majority of cases, and his courts, were situated
+within the city's limits; thus making the official machinery of
+government a part of the city life, and causing the city to become an
+actual if not a legally recognized part of the constitution of the
+state. As far as this investigation is concerned, this represents the
+prominent feature of the power and position of the head of the
+_civitas_. We must be careful, however, to avoid any confusion of
+ideas as to the importance which it gave to the city as a municipal
+unit or as a corporation. It was in no way what we could call a
+municipal government, even admitting a rather loose interpretation of
+the term, as the supporters of the theory of the survival of the Roman
+curial system would have us believe.[22] The _judex_ may be called
+"the highest municipal officer among the Lombards," and this
+designation still be correct, though perhaps misleading. He was the
+highest officer of the locality, and his official duties were for the
+most part carried on within the city; but the leading fact we must
+keep prominently before us is, that he was the head of the whole
+_civitas_, and not in any sense of the city as such: and further, that
+his powers over the rural portions of the _civitas_ were in no sense
+added to any purely municipal powers he may have possessed; but, on
+the contrary, if we are to draw any distinctions, the municipality
+formed a part of the land division. That the whole _civitas_ was
+commonly named after the largest town contained within its borders,
+and that the seat of power was generally placed within the city walls,
+are facts too evidently brought about by motives of convenience and
+expediency and by the force of old association, to lead to any
+confusion in appreciating the proper place of the city. Where there
+were to be found buildings suitable for the residence of the _dux_,
+and where was located the largest collection of individuals, was
+manifestly the most appropriate place for holding the courts and
+settling the disputes of the inhabitants of the whole _civitas_, and
+this formed a natural centre for the machinery of government. But
+every inhabitant of the _civitas_ had equal rights with the townsman
+proper, and, as in the old Greek [Greek: polis], the most remote
+countryman dwelling on the borders of the _civitas_, if he possessed
+the franchise, was as much a citizen of Padua, Siena or Milan, as if
+he dwelt within the walls of the city which gave its name to the whole
+_civitas_.
+
+A consideration of these facts brings out two important points, which
+I will briefly indicate before passing on to a little more detailed
+treatment of the powers and the duties of the _judex_. In the first
+place it has been made clear that at the time under discussion nothing
+that could correctly be called a "municipal system" existed in
+Lombardy, and the city, _as such_, had no independent existence or
+independent relations with the state. And secondly, it cannot but be
+manifest that the position that the city did occupy as actual, if not
+necessarily as legal, centre from which issued all the administrative
+functions of the district, the residence of the chief authority and
+the seat of his courts, would have a marked tendency to increase
+slowly, perhaps imperceptibly at first, the importance of its position
+at once in the _civitas_ and in the state, and at the same time to
+improve the character of its inhabitants and in time increase their
+wealth. That this ultimately came about the development of the later
+independent communal life is a proof, and the tardy steps by which
+this was attained but serve to show the difficulties consequent on so
+slight and so feeble a beginning.
+
+The obscurity which promptly descends on the brain of the intelligent
+reader who endeavors to gain a clear idea of the state of society or
+of the administration of government in these early ages of Italian
+history, makes the careful student very skeptical of any precise
+presentation he may find of them, and causes him to be particularly
+cautious and proportionately diffident in making, himself, any very
+definite statements concerning them. If he be a wise man and wish to
+make his investigation of some use to others, he frequently says "it
+seems probable," and he particularly avoids mentioning dates which are
+fixed and immovable. If this may be said of all matters not belonging
+simply to the narrative portions of history at this period,
+particularly true is it of the different functions attributed to
+various officers of local government, whose very titles we sometimes
+have to infer from their duties, and whose duties we often have to
+infer from their titles.
+
+To these the _judex_, though the most prominent, cannot be said to
+form an exception. That he was the head of the district judicial
+system has in part been already shown, and will come out more clearly
+when we come to define the powers of some of his subordinates. His
+leadership in war we have seen to be but the natural continuance of
+his original office; and that as _dux_ he was to be ranked among the
+first nobles of the land, the "optimates," the "viri illustres," we
+can see from the following passage in the laws of Liutprand, when in
+the prologue to the third book already quoted, he gives forth the
+edict with the judges as "una cum illustribus viris optimatibus meis
+ex Neustriae et Austriae et Tusciae partibus vel universis nobilibus
+Langobardis."[23] Although the position of the _duces_ as nobles of
+the land never altered, their power relative to that of the king
+suffered many modifications. The ducal power--"principes" of
+Tacitus--preceding among the Lombards that of the king, we see the
+dukes exercising much greater control in the earlier stages of the
+monarchy: even, on the death of Clefis--576--actually establishing a
+sort of aristocratic republic, under the leadership of thirty dukes,
+which lasted for ten years; after which time, on the event of a
+dangerous war with the Greeks and the Franks, Authari, the son of
+Clefis, gained the throne by election; the dukes giving up to him,
+says Paulus Diaconus,[24] the half of their estates for the support of
+his dignity, retaining, however, the rest, not as servants of the
+king, but as "principes" of the people, an important distinction.
+Agiluf--591 to 615--originally duke of Turin, met with much opposition
+from the power of the dukes; but when we come to the time of
+Rhotari--636 to 652--we find their power already declining, and in the
+eighth century, as for example under Liutprand--712 to 736--the laws
+show them reduced to the position of the other _judices_, but still
+representing a high aristocracy whose consent was, as we have seen,
+necessary to all acts of the king.
+
+The most important of the functions of the _dux_ as _judex_ was
+holding the _Curtis Regia_ or _Curtis Ducalis_, in the largest city or
+"urbs" of every _civitas_. Here, in conjunction with his subordinates,
+he heard all cases which did not go up to the king for judgment, and
+here was centered the fiscal administration of the _civitas_. To
+describe in detail the composition of these _curtes_, their
+jurisdiction and methods of procedure, would require a whole chapter
+of no mean proportions, and however interesting in itself, would be
+out of place in the present investigation. All that it is needful for
+us to consider is the relation of these _curtes_ to the municipalities
+in which they were located. Of their location within the city walls
+the proofs to be found in numbers of the old documents are to me
+conclusive. I will give a few examples, however, commencing with two
+from the documents which have already been quoted from Brunetti,
+relating to the dispute between the bishops of Siena and Arezzo. In
+the first of these[25] we see that in the year 715, the king's
+_majordomus_ Ambrosius interferes "in Curte a Domini Regis" at Siena,
+in opposition to the local bishop and gastald; and in the second[26]
+we find the royal notary Gunthram forbidding a fresh examination of
+witnesses "in Curte Regia Senensis." In a document of the next
+year[27]--716--we find "Ebugansus, Notarius regiae Curtis," taking
+part in the procedure in a case between the bishops of Pistoia and
+Lucca; and a little later, in the year 756, is mention of an exchange
+of property between "civitis regia lucencis" and the church situated
+in that city.[28] In the "Opusculum de Fundat. Monast. Nonantulae,"
+published by Muratori,[29] we find a donation by King Aistulf to that
+monastery: "prope castellum Aginulfi, quod pertinet de curte nostra
+lucense, et duas casas masaritias de ipsa curte"; and "granum ilium,
+quod annue colligitur de portatico, in Curte nostra, quae sita est in
+Civitate Nova."[30] In Carlovingian times Charles the Bald, in the
+year 875, in the "Chronica Farfense,"[31] appears as saying, "in Curte
+nostra infra Castrum Viterbense": elsewhere "curtis regie Viturbensis"
+is spoken of[32]: and later, in 899, Berenger gives to the bishop of
+Florence "terram ... pertinentem de curte Regis istae Florentiae"[33]:
+and finally, not to multiply examples, I will mention a privilege of
+Karloman's, published by Ughelli[34], by which he gives to the bishop
+of Parma certain regalia: "id est curtem regiam extructam infra
+civitatem Parmam cum omne officio suo," etc. From even these few
+instances we can see the connection between the _Curtis Regia_ and the
+city which gave its name to the _civitas_, a connection the importance
+of which we must not fail to appreciate, in consideration of the great
+influence which it exercised in the future development of the
+municipal unit from a beginning so insignificant.
+
+Of some importance in connection with the early history of the cities
+are the questions which arise in relation to the fiscal duties and
+privileges of the _curtes regia_ and its officers. In it was centered
+the fiscal administration of the kingdom; and its officers, in the
+various grades from the _dux_ downward, received and were responsible
+for the revenues of the state. So prominent a part belonged to this
+form of the functions of the _curtes_ that it is quite common to hear
+the revenues themselves, by a transposition of terms, called by that
+name, or by that of _palatium_, a word sometimes found even for the
+_curtes regia_ in their proper general sense; but this, from what I
+have been able to gather concerning its legitimate use, should
+properly be applied only to the residence, or by conversion the
+revenues of the king himself[35]. What is of interest to us in this
+matter is the fact that the _curtis regia_ fell heir to the _publicum_
+or communal property of the old Roman _curia_, when these were
+overthrown by the Lombard conquest.
+
+In considering this phase of civil administration under the Lombard
+system, we are again brought face to face with the old question of the
+survival or non-survival of corporate existence among the cities. For
+if it could be proved that the municipality in its corporate capacity
+retained the communal property and administered it, there would appear
+to be good grounds for the assertion of the continuance of some form
+of quasi-independent municipal government; but if, on the other hand,
+it were found that the property of the municipality passed to the new
+head of local administration or to the central power, it would be
+evident that the continuance of the municipal system as such was a
+logical impossibility; for, deprived at once of its property and of
+its revenues, it would have had no vitality to keep it from a speedy
+end.
+
+In investigating a question of this nature from the sources at our
+disposal in a period of history so obscure, we cannot expect to find
+any definite statements sufficiently precise to set at rest at once
+all opposition and discussion; but after considering the character of
+the people we are investigating and studying their institutions, and
+after a careful examination of the laws and records which form the
+sources of our information, we are, I think, in a position to be able
+to give a sufficiently decided opinion as to whether a particular set
+of facts or conditions could possibly have existed in a state of
+development and in a society of a given character. Thus it is in
+regard to the matter in hand. From the numberless cases in which the
+_publicum_ is mentioned in the documents from which we draw our
+materials, it seems to me possible for a critical examiner to come to
+but one conclusion, if, as is quite essential, he take into
+consideration the unmistakable spirit of these writings, and if he
+give a legitimate interpretation to the various terms employed. To
+cite in direct proof any individual instance is, perhaps, impossible;
+but indirect evidence is forthcoming in abundance, and of a character
+to be, to me at least, entirely conclusive. The conclusion reached is,
+then, that the king and the dukes were the successors of the old
+_curia_ in the possession and the administration of all properties and
+revenues, taxes and fines formerly belonging to the organized
+corporations of the Roman municipalities, and that the _curtes regiae_
+were the channel through which these were collected, divided and
+expended.
+
+The grounds on which this assertion is based are the continual
+recurrence of examples of functions of a fiscal character being
+exercised by the head of the _civitas_ and his officers, and by them
+alone; and it appears to me that it could only be by a complete
+misunderstanding of the spirit of the early writings, and by a
+comprehensive misapplication of the terms used in them, that these
+functions could be referred to any other power. These functions of the
+administration may be grouped under three main heads, viz: 1. Fines
+and forfeitures, which, of course, played a very prominent part under
+the Teutonic system of composition for offenses of a criminal nature;
+2. Taxes and privileges, by which is meant feudal rights, dues, etc.;
+and 3. Buildings and lands belonging to the crown or to the head of
+the _civitas_ as a public officer.
+
+Of the fines and forfeitures paid into the _publicum_, we find that a
+part went to the royal treasury and a part to the _judex_, and in some
+cases to the informer or the prosecuting officer; and at different
+times we find these proportionate amounts definitely defined--as, for
+instance, in the time of Charlemagne two parts went to the king and
+one part to the count who acted as _judex_;[36] this we know from two
+of the Lombard laws of that emperor.[37] In one of these,[38] speaking
+of those who evaded military service, he says: "Heribannum comes
+exactare non praesumat: nisi Missus noster prius Heribannum ad partem
+nostram recipiat, et ei," the Count, "suam tertiam partem exinde per
+jussionem nostram donet."[39] We even find evidence of quite a large
+amount of liberty used by the _duces_ in the ultimate disposal of
+property coming under their jurisdiction by forfeiture, the more
+powerful making use of it precisely as if it were private property.
+For example, in the Chronica Farfensis[40] appears a case judged by
+Hildeprandus, _dux_ of Spoleto, in the year 787. A certain nun named
+Alerona, for having married a man named Rabennonus, "secundum legem
+omnis substantia ipsius ad Publicum devoluta est"; a little later
+Rabennonus, for having killed a man, "medietas omnis illius
+substantiae ad Publicum devoluta est." In consequence, in poetic
+justice and for the good of his soul and the king's, Hildeprandus
+quite arbitrarily presents "omnem praedictam illorum substantiam,
+qualiter secundum legem juste et rationabiliter, ad Publicum devoluta
+est," to the Monastery of Farfa "pro mercede Domnorum nostrorum Regum
+et nostra." Here, as in many other cases, we see the _dux_ making
+gifts of property belonging clearly to the _publicum_, to persons
+favored by him and for his own benefit. Such a condition of affairs
+would certainly never have existed had public property been
+administered by authority other than that of the _dux_.
+
+With regard to the revenues falling under the second of the rough
+divisions we have indicated--taxes and privileges--it is easier to see
+why differences of opinion should have arisen; for here, especially in
+matters relating to the collecting of taxes and dues, we are
+confronted with the names of a large number of lesser officials and
+subordinates of the _judex_, some of which are undoubtedly taken from
+the like officers existing in the old Roman curial system. But this
+survival of names, and in some instances of offices, need cause us no
+alarm, for it coincides exactly with the theory presented, namely, a
+continuance of many of the old _forms_ of administration controlled by
+an entirely new _principle_ of government. There are certain minor
+functions necessary for the support of the state which must be carried
+on in much the same manner, whatever be the character of the governing
+power--certain subordinate offices whose duties must be performed
+under a republic or under a despotism. Taxes may be collected by
+widely differing methods under the two systems, but there must always
+be the tax collector and the tax assessor. We can, however, see at a
+glance the weakness of any argument which contends that because the
+name and even the general duties of the tax gatherer were the same in
+each case, that the whole system of administration of the taxes or of
+the community were necessarily identical or even closely allied in
+character.
+
+It is here we see the weakness of those writers who insist upon the
+continuance of the Roman _curia_ in the municipalities of the Lombard
+kingdom. They seize upon a few names, relics of Roman rule, and from
+them generalize a complete system of taxation and administration. That
+the existence of any such system is alike contrary to fact and to the
+whole nature of the Lombard people, any critical and impartial study
+of the sources of government revenues at this time will make clear. It
+would be out of place to burden a paper of this character with the
+results of a minute investigation into the fiscal relations of the
+rulers and the people when this has no immediate connection with the
+development of municipal government; but I will state that a careful
+examination of all available sources, including documents and
+statutory enactments, both public and private, reveals, to my mind, a
+theory and a system of raising the revenues of the state closely
+allied in both principle and detail to feudal forms and feudal ideas,
+and having little in common save the names of a few of its officers,
+with the ancient methods of collecting the taxes peculiar to the Roman
+municipal constitution.[41]
+
+In general terms, the collectors of the revenues were called
+_telonarii_, or _actores, exactores_ or _actionarii_, etc., and the
+taxes they collected were the usual feudal dues, fines, forfeitures,
+compositions for service, etc. The nomenclature of these various
+officers and of the different duties they had to levy, varying as it
+did with regard to locality, and more especially with regard to
+time--the Franks introducing an entirely new set of names for
+institutions often identical in character to those displaced--presents
+an amount of confusion which, fortunately, it is not necessary for us
+to endeavor to penetrate; but, having stated the foregoing general
+conviction with regard to the fiscal system, we will now pass on to a
+consideration of some of the lesser offices held within each _civitas_
+by the deputies and subordinates of the _dux_. These, of course, were
+connected, in degrees more or less close, with the different _curtes
+regiae_, and with the _placita_ held in the various _civitates_
+commonly about three times in the year. Some of the officers, like the
+_vice-comes_ found to have existed in many localities, are simply
+deputies of the _dux_, or representatives of his person, and hold
+their office simply by virtue of his will and under a somewhat
+arbitrary tenure; others, like the gastald, the _sculdahis_, and later
+the _scabinus_, represent offices which formed an integral part of the
+constitution of the government, and appointment to which, whether made
+by the _dux_ or by the central power, involved a necessary duty of a
+determinate character. An accurate determination of the relative
+positions of these various minor officials, of the extent of their
+jurisdiction and of its limitations, presents one of the most
+difficult problems which the student of these dark ages of history is
+called upon to solve. The peculiar character of the sources from which
+we have to derive all our information makes it quite possible for all
+writers on the subject to disagree with regard to details, and leaves
+a wide margin for discussion even on the important characteristics of
+the various offices. Avoiding as much as possible the points of
+controversy, I will endeavor to give the general features of the more
+important of these offices, the conclusions given in each case
+resulting from an examination of the different theories held and of
+the sources on which these are based.
+
+The officer who seems to have ranked next in importance to the _dux_
+within the limits of the _civitas_ is the gastald, who goes
+indifferently by the name of _gastaldus, castaldius_, or _gastaldio_.
+His powers were of a judicial character, and he shared with the _dux_
+the title of _judex_; but whether he enjoyed the full prerogative of a
+_judex civitatis_, or whether his judicial functions were of a more
+limited character and referred exclusively to matters of a fiscal
+nature belonging to the _curtis regia_ or the _camera_ of the king, is
+a question to which the evidence to be gathered from the law codes
+gives no decided answer.[42] It seems probable, however, from the
+importance seemingly attached to the holders of this title in the many
+cases in which they are mentioned in the old laws and documents, that
+their jurisdiction was of a broader character than would be implied by
+a restriction to purely fiscal functions; in fact, that it approached
+more nearly to the power of the _dux_ and _judex civitatis_, though
+being in some way of less extent or possibly supplementary to it.
+Perhaps the distinction would come out more clearly if we said that
+the office was characterized by its relations to the fiscal functions
+of the state, but that its duties and privileges appear not to have
+been restricted to affairs of that nature. It is certainly true that
+very many instances occur in which the duke and the gastald are
+alluded to, whether in laws or in contracts, in precisely the same
+terms and in positions which would seem to indicate an almost perfect
+equality of dignity. As, for example, in a meeting between Liutprand
+and Pope Zacharias, described by Anastasius Bibliotecharius,[43] where
+dukes and gastalds are together reckoned among the _judices_: here the
+king goes to meet the pope "cum suis judicibus," and gives him as an
+escort "Agripandum ducem Clusinum, nepotem suum, seu Tacipertum
+Castaldium et Remingum, Castaldum Tuscanensem." In spite of this
+apparent equality, however, it seems to me nearer the truth to
+consider the position of the gastald as an inferior one to that of the
+_dux_, especially in Lombard times, before that official was replaced
+by the _comes_ of the Carlovingians.
+
+The important point which it is necessary to emphasize in this
+connection is the fact that the gastald held his tenure, not from the
+_dux_ as his subordinate, but from the king in person, and for this
+reason can more fitly be compared with the later count than with the
+_dux_ of the Lombards. Consequently it is in the matter of tenure that
+I think is to be found the difference in power between the two
+officers. In addition to his official authority, the _dux_ was
+possessed of a power and an influence entirely his own, derived quite
+as much from the number of his vassals and his position in the
+_civitas_ as from the grant he received from the king. At home he was
+a powerful lord, and though he, of course, owed fealty and service to
+the king, he was by no means a king's servant, like his successor the
+Carlovingian count. The gastald, on the other hand, was eminently a
+servant of the central power; and whether or not he was engaged
+exclusively in looking after the fiscal interests of the masters who
+employed him, he had no power and no influence except such as he
+derived from the source of his authority. He was a king's minister and
+nothing more, and we can easily appreciate that the amount of power he
+was enabled to exercise could never exceed the amount of influence in
+local affairs possessed at any particular time by the central
+government, whose representative he was.
+
+But the very nature of the source from which the power of his office
+is derived is what connects it vitally with the subject of our
+enquiry. We have seen the _dux_ as head--in the earliest times almost
+independent head--of the whole _civitas_, including rural and city
+jurisdiction. We have seen him as an official, depending from the
+king, it is true, and holding the king's _placita_ and executing the
+law, but also holding _placita_ of his own; appearing as a powerful
+local lord, and exercising almost arbitrary power in the regulation
+and the distribution of the public property of the commonwealth over
+which he ruled; in fact, a descendant of the old _duces_ of the
+Lombard barbarian host, who, perhaps, even antedating the royal
+office, held their power and their position as princes and chosen
+leaders of the people, rather than as appointees or dependents of any
+higher authority. In the gastald, on the other hand, we have an
+official of an entirely different type--one not belonging to a
+powerful class of lords or leaders which traces its origin to the
+spontaneous choice of the people or army, but one who gets his
+appointment at the will and in the interests of the central
+government, and is commissioned to exercise certain functions of the
+administration as an assistant to, perhaps even as a check on, the
+power of the local head.
+
+Such an official was naturally located at the place where the district
+courts held their sessions, and where the fiscal duties which he
+especially had in charge were most easily executed. As we have seen in
+the case of the _dux_, convenience points to the _urbs_ of each
+_civitas_ as a natural centre, and consequently here again we find the
+office of gastald as another agent in bringing the municipal division
+into prominence; but doing this, we must always remember, simply from
+the fact of convenience or fitness, and not in any sense as a matter
+of constitutional necessity. Like that of the _dux_, the jurisdiction
+of the gastald was exercised over the remotest farm of the _civitas_
+as much as over the palace in the city: _de jure_, the city gained
+nothing by the circumstance of its being the centre of the
+administration of any office; but, _de facto_, the holding of such a
+position can easily be seen to have been an important element in its
+growth and development.
+
+This fact is even of greater importance in the case of the gastald
+than in that of the _dux_, because, on account of the elimination of
+the character of local ruler, which was indissolubly attached to the
+office of the latter, the gastald brought local affairs into direct
+relation with other parts of the social system of the kingdom,
+especially connecting them with the king or centre of the whole. Such
+a connection, as may be inferred from what has just been said, while
+legally true, of course, of the whole _civitas_, had practically the
+effect of bringing the cities chiefly into relation with the rest of
+the Lombard constitution; and, consequently, some writers point to the
+office of gastald as the connecting link between municipal life and
+the new state life of the Teutonic system. This statement seems to me
+to be true except in so far as it makes the gastald the only
+connecting link. For we have already seen the _dux_ holding the same
+relation, only in a less direct manner, owing to the intrusion of
+other interests belonging to his position; and we shall shortly have
+to consider the _scabinus_, another local officer, who, under
+Carlovingian rule, accomplished even more in this direction than the
+gastald. I do not wish to fail in appreciation of the important
+influence of this office in the development of the slowly growing idea
+of individuality in the cities of Lombardy, only to point out that it
+was not the only "connecting link" between the municipal units and the
+state as a whole.
+
+In passing to a brief characterization of a few of the subordinate
+officers, I must not omit to mention the fact that the gastald had
+also certain military functions attached to his office. When called
+upon by the king he took command in the army, together with the minor
+officers who were under him in his jurisdiction, such as the
+_sculdahis, saltarius_,[44] etc. We have confirmation of this in the
+constitution "promotionis exercitus" of Lewis II.,[45] which says "ut
+nullum ab expeditione aut Comes aut Gastald, vel Ministri eorum
+excusatum habeant"; and in the life of Gregory II., Anastasius
+Bibliotecharius[46] tells that at the overthrow of the _castrum_ of
+Cumae with the help of that pope, "Langobardos pene trecentos cum
+eorum Gastaldione interfecerunt." In military affairs the command held
+by the gastald seems to have been lower than that of the _dux_, the
+leader of all the troops furnished by the _civitas_. A right of appeal
+to the _dux_ existed for the _exercitalis_ who was oppressed by the
+gastald, as shown by the twenty-fourth law of Rhotaris,[47] which
+says: "Si Gastaldius exercitalem suum contra rationem molestaverit,
+_Dux_ eum soletur." In a case of oppression by the _dux_, the gastald,
+on the other hand, could bring the matter before the king.
+
+Before considering the changes introduced by the Carlovingian rule,
+let us cast a hasty glance at a few of the minor officers who acted as
+subordinates of the _judex_ in administering the affairs of the
+_civitas_. As their relations to the urban portion of the Lombard
+kingdom, which is the special object of our study, were either slight
+in themselves or else so closely connected with those of their
+superiors as not to merit any particular description, I will merely
+mention the names of a few of them and indicate their duties. The
+officer who came next in rank to the _judex_, and who, in a
+subordinate capacity, assisted him especially in administering the
+judicial affairs of the _civitas_, was in Lombard times called the
+_sculdahis_, and in Carlovingian times the _centenarius_. Under him
+were the _saltarius_ and the _decanus_. The _sculdahis_ acted as a
+local officer under the _judex_, having limited judicial, police and
+military powers. His jurisdiction was confined to the small fortified
+towns and villages of the _civitas_, where he administered justice and
+collected fines, forfeitures, etc., in much the same manner as did the
+_judex_ in the largest town of the _civitas_; his judgments, however,
+were not final, but always subject to appeal to a higher authority:
+"Si vero talis causa fuerit, quod ipse Sculdahis minime deliberare
+possit, dirigat ambas partes ad judicem suum."[48] There were several
+_sculdahis_ in one _judiciaria_, and cases were often tried before
+more than one,[49] though each of the smaller local units seems to
+have had such an officer. Paulus Diaconus[50] speaks of "elector loci
+illius, quem sculdahis lingua propria dicunt, vir nobilis," etc.
+
+These rural divisions seem sometimes to have been called _sculdascia_,
+for we have a diploma of Berengar I., of the year 918, given to the
+monastery of Sta. Maria dell' Organo,[51] where is mentioned "pratum
+juris imperii nostri pertinens de Comitatu Veronensi, de Sculdascia
+videlicet, que Fluvium dicitur"; and in a document published by
+Ughelli,[52] in speaking of the bishops of Belluno, "Sculdascia
+Belluni" is used. In Frankish times the _centenarius_ held the same
+position as the _sculdahis_ of the Lombards: his jurisdiction was
+similarly limited to minor offences; all cases involving capital
+punishment, loss of liberty, or delivering of _res mancipii_, being
+handed over to the count's court according to the legislation of
+Charlemagne.[53] The _decani_ and _saltarii_ were subordinates of the
+_centenarii_ and _sculdahis_. They both presided over smaller local
+divisions than the _sculdascia_, and acted as deputies. In the laws of
+Liutprand,[54] speaking of a runaway slave, we are told that "si in
+alia judiciaria inventus fuerit, tunc decanus aut saltarius, qui in
+loco ordinatus fuerit, comprehendere eum debeat et ad sculdahis suum
+perducat, et ipse sculdahis judici suo consignet." The _saltarius_
+seems to have been originally a sort of guardian of forests, "custos
+saltuum"[55] or "silvanus";[56] and the name of the _decanus_, like
+the Frankish _centenarius_, is a survival of the old decimal division
+of the army and people. These minor officers, as well as other
+subalterns of the _judex_, are often met with under the common name of
+_actionarii_, which includes also the different sorts of _exactores_,
+_adores_, _advocati_, and all the lesser officials of the _fiscus_.
+
+In the course of this investigation I have already referred to, and in
+a certain measure characterized, the changes introduced into the
+Lombard system of government consequent on the kingdom being absorbed
+into the great empire of Charlemagne. I have said that, owing to the
+similarity of institutions between the Franks and the Lombards, the
+changes made consisted rather in differences in the manner of
+enforcing the control of the central power than in any alteration in
+the institutional life of the people, but that there were certain
+exceptions to this general rule, which, in their mode of operation,
+though not in the intention of their author, materially affected,
+indeed greatly accelerated, the growth of individual life among the
+cities. We must now consider the nature of these exceptions.
+
+Under the Lombard system we have seen the administrative unit of the
+state to be the _civitas_, with its administrative head, the _dux_, at
+different times enjoying a greater or less degree of independence from
+control of the central power. We have seen the _dux_ lord as well as
+judge in his own jurisdiction, and standing as the successor of the
+military leader chosen by the people, instead of holding the position
+of king's servant; this place being more properly filled by the
+gastald, who cared for the fiscal interests of the central power,
+whose appointee he was. Such a form of government, it can be readily
+seen, left no room for any strong development of the principle of
+centralization, and no scope for the exercise of any decided power or
+even of general supervision by the central authority. The heads of the
+_civitates_ were the king's _judices_, it is true, and assembled to
+assist him in judgments at his general _placita_ in the March of each
+year; but they bear the character also of local lords of no mean
+importance, and in some cases possessed of no inconsiderable amount of
+power. Such a degree of individual influence--perhaps I should
+exaggerate if I called it individual independence--was, however,
+little suited to the idea of a universal centralized empire, which was
+the forming principle of the government of Charlemagne. While
+recognizing the necessity of retaining the fundamental institution of
+a division of the state into _civitates_, and of governing it by means
+of the heads of these divisions, he wished to eliminate from these
+officers all the characteristics of local magnates, and to reduce them
+to the more easily controlled position of servants, and dependents of
+the king. This object he accomplished most satisfactorily by changing
+the dukes or local lords into counts or king's men, by appointing a
+Count of the Palace for Italy, and by extending to that kingdom the
+perfectly organized system of central control by means of the _Missi
+Dominici_, with the workings of which in the other parts of his great
+empire the student of history is too well acquainted to need any
+description here.
+
+The immediate changes in the life of the people consequent on the
+introduction of this system were not considerable, if we except a
+great improvement in public order and a marked advance in the
+equitable administration of justice; but it needs no great foresight
+to see that the ultimate effects on the position held by the municipal
+units in the community could not fail to be important and
+far-reaching. The new officer, the count, stripped of all the
+importance that his predecessor, the duke, had enjoyed as lord of the
+country over which he ruled, was placed in each city to govern, in the
+king's name, it and its _territorium_. As long as the empire of
+Charlemagne retained its integrity, and as long as the reins of
+central government were held by a strong hand and the control it
+exercised was felt to be positive and real, the change in the
+character of the local governor was of little moment; but as soon as
+the power of the central government weakened--during the inglorious
+reigns of the immediate successors of the great emperor--its hold on
+the administration of the local units slackened immediately; and in
+proportion as the vitality of the new central control diminishes, we
+see appearing the effects which must always result when the strong
+hand of an active central power is removed from a system of
+administration which had been based on the exercise of such a power.
+These effects are the increased importance--I may now say the
+increased independence--of the local units; of these local units
+themselves as distinguished from the heads who rule over them.
+
+The change had made these units more organic parts of the state than
+they had ever been before: we have seen them first made prominent by
+being the seats of the rulers of the _civitas_, and now we are to see
+them gain a more significant advance by coming into relation with the
+head of the state directly, instead of through the personal power of
+their lord. For the local ruler has yielded his individual
+pre-eminence to the central government; and when this fails to
+maintain its authority, in any community whose inhabitants are capable
+of fostering the seeds of independence once sown, it is difficult if
+not impossible for a successor to repossess himself of the privileges
+which have been forfeited. In any state where the seat of central
+authority is distant or its power only exercised feebly and at
+intervals, the local units secure much greater independence and
+importance, through the very necessity of performing many functions
+left unheeded by the ruler of all; and if the people are self-reliant
+in character, they will in time develop a sort of self-government
+which, although it would not at first think of questioning the
+theoretical right and overlordship of the central power, will
+eventually brook but little interference with its modes of procedure
+and with its exercise of functions, which the lapse of time has
+transformed from enforced duties into jealously guarded privileges.
+
+This is the keynote of the later history of the Italian cities. This
+it was, and not any real lack of patriotism, which made them choose a
+German emperor instead of an Italian king. There was no room at that
+time for the idea of Italian unity, as we now understand it: the
+nature of the people alone would have rendered such a thing
+impossible, even if we leave out of account the fact that Italy was
+the meeting-ground of the two great powers of the mediaeval world, the
+Pope and the Emperor. Italy then must have had two masters, or have
+been the slave of one. The same spirit of civic independence which
+caused the development of Ancient Greece by preventing the universal
+rule of one power, caused the Italians, under different conditions, to
+pit one master against another to attain the same end. Even Liutprand,
+the old historian of the tenth century, recognized this. In the first
+book of his "Historia" he says: "The Italians wish always to serve two
+masters, in order to restrain one by means of the terror with which
+the other inspires him."[57] By means of holding in their hands the
+balance of power they hoped to rule their rulers; and to attain this
+object was the only reason which ever prompted the cities to unite
+with any degree of harmony. Local independence was what they aimed at,
+and their shrewdness showed them the only possible means in that age
+of securing it.
+
+These results could hardly have been attained if society had remained
+such that the prominence of the local divisions was dependent on the
+prominence of the respective heads of these divisions; but the
+character of their local rulers once changed, and their powers in a
+great measure absorbed by the act of a strong central power, when that
+power fell to pieces it was much easier for the local divisions, as
+such, to increase their independence, and to utilize the advance they
+had made, by means of their more direct relation to the central power,
+to gain a position which they would enjoy in spite of the efforts
+alike of that power and of their old rulers. Such a position would not
+be reached except by means of great struggles and by passing through a
+period of great disintegration and of fierce internal strife between
+opposing factions, such as in the history of the Italian communes is
+represented by the dark period between the fall of the last of the
+Carlovingians and the election of the first German emperor as king of
+Italy; but once attained, the character of the people who accomplished
+it would ensure its permanence, as long as they retained those
+principles of independence which had made them victorious in the
+struggle. After this short discussion, in which we have traced the
+ultimate effects of the action of Charlemagne in changing the dukes
+into counts, let us look at another feature in the field of city
+government introduced by him, the new office of the _scabinus_ or city
+judge.
+
+According to the theory of judicial procedure among the Teutonic
+nations, judgment in criminal cases was given in the open court or
+_placitum_, where, besides the regular judges, all or any of the
+freemen within its jurisdiction were supposed to concur in the
+judgment and sentence. How far this method of arriving at judicial
+decisions was carried out in practice depended largely on custom and
+other local influences, and consequently varied greatly in different
+countries and with different nations. I do not propose to enter into
+the discussion[58] of the existence of these "judicators"[59] in
+Lombardy in the eighth century, but will only say that it is certain
+that before the Frankish conquest there did not exist a class of men
+whose business it was to assist the judge in disposing of cases. If
+through ignorance of the law or for other reasons he was unable to
+come to a decision, "si vero talis causa fuit, quod ipse ...
+deliberare minime possit,"[60] he could call some of the freemen to
+assist him: "advocis [advocet] alios ... qui sciunt judicare,"[61]
+etc., but this seems, in later times at any rate, to have been a
+privilege to be used at discretion, and the persons summoned were not
+regularly appointed officers of the court. The Lombard codes are
+silent with regard to these indicators; but Savigny,[62] in his
+argument to prove their existence, claims that mention is made of them
+in two decisions of Liutprand of the years 715 and 716, and brings as
+additional evidence a _placitum_ of 751[63] in which Lupo, duke of
+Spoleto, gives judgment "una cum judicibus nostris ... vel aliis
+pluribus astantibus," etc. It is of more importance for us, however,
+to determine the reasons for the introduction into Italy by
+Charlemagne of the new office of the _scabinus_, than to lose
+ourselves in a complicated discussion of the theoretical predecessors
+of these officers.
+
+The introduction of this new feature into city government seems to
+have been the result of an attempt to correct certain abuses in the
+exercise of power by the duke or head of the courts of the _civitas_.
+The duke had the right, as we know, to summon all the freemen in his
+jurisdiction to his _placita_, and to fine them according to the law
+if they failed to answer his summons. The fines collected in this
+manner formed a substantial part of the revenues of the _judex_
+imposing them, and consequently arose the abuse, which seems to have
+been a great cause of complaint in the eighth century, that the
+freemen were summoned to attend _placita_ at frequent intervals during
+the year, when there was no business of any importance to transact,
+and when the sole object of the summons was to furnish an excuse for
+imposing the fine. An attempt to remedy this injustice was made when
+the number of _placita_ which any one _judex_ could hold during the
+year was limited by law to three,[64] and the dates for these
+definitely determined. But the abuse does not seem to have been
+satisfactorily corrected till the time when Charlemagne formally
+substituted for the body of the freemen, who in theory were supposed
+to attend the _placita_ and assist in the judgments, a limited number
+of men who, as regularly constituted judges, either assisted the
+_judices_ or made judgments of their own, as the case might be. These
+officers were the _scabini_, whose position we are now investigating.
+
+All of the best authorities agree that no authentic allusion to the
+office in Italy is to be found prior to the establishment of Frankish
+rule. The word _scavinus_ or _scabinus_ sometimes occurs, but in every
+case the document containing it has been proved spurious on other
+grounds. For instance, Brunetti[65] publishes a donation of the bishop
+Speciosus of Florence, to the monastery of the cathedral, purporting
+to belong to the year 724, in which a certain "Alfuso scavino" is
+mentioned; but it has been proved that the monastery was only founded
+in the year 760, and though it may, at a later date, have received the
+donation, the significancy of the use of the term vanishes. The first
+authenticated use of the name of the new judge seems to be in a
+_placitum_ of Charlemagne of the year 781.[66] In this the parties to
+a suit are mentioned as having already appeared before the "Comitem et
+suos Escapinios." Eight years later, in a _Praeceptum_ of
+Charlemagne,[67] commission is given to the _comes_ Tentmann "superque
+vicarios et Scabinos, quos sub se habet, diligenter inquirat."
+
+Now that we have indicated the origin and noted the first appearance
+of the new officer, let us examine his position and his duties. I am
+much more willing to allow to the _scabinus_ the title of "city
+officer," than to the _dux_ or even the count. We have seen the latter
+as one of the important connecting links joining the city to the
+state, bringing the city into relationship with the constitution of
+the kingdom and making it a part of it; but we have been unwilling to
+call the count or _dux_ the _legal_ head of the city, as such, that is
+to allow him the title of the first city officer. But with the
+_scabinus_ the case is different. His mode of appointment, and the
+character of the functions he performed, ally him with the city proper
+and with city people. His duties and his interests were more confined
+to the city than those of any of the other judges, and when he
+accompanies the count to the general _placita_ of the king, he seems
+to go in the capacity of a representative of the city, and more in the
+character of a city magistrate than any officer we have yet
+considered. His duties were almost entirely of a judicial character,
+and his powers seem to have been as broad in their extent as those of
+the other judges. That he had the power of imposing capital
+punishment, and that the other officers of the law could not change
+but only execute his orders, appears from the following passage:[68]
+"postquam Scabini eum [latronem] adjudicaverint, non est licentia vel
+Vicarii ei vitam concedere." Muratori[69] maintains that he also had
+the right of holding certain _placita_ of his own, and cites in proof
+two _placita_ of Lucca of the years 847 and 856, where we find: "Dum
+nos in Dei nomine Ardo, Adelperto et Gherimundo Scabini adsedentes in
+lucho Civitate Lucana," etc.; and "dum resedisset Gisulfus Scabinus de
+Vico Laceses, per jussionem Bernardi Comiti ... ubi cum ipso aderat
+Ausprand et Audibert Scavinis." In the first of these there is no
+mention whatever of the count, and in the second "Gisulfus Scabinus"
+acts with his associate _scabini_ "per jussionem Comiti." But even if
+we allow to the _scabini_ the right of holding _placita_, these must
+have been of a lower grade than those of the counts or of the _missi
+regii_; for to the _mallum_ of the latter an appeal was allowed from
+the judgment of the _scabini_, as we see from the law of
+Charlemagne,[70] which says that: "Si quis caussam judicatam repetere
+in mallo praesumserit ... a Scabinis, qui caussam ipsam prius
+judicaverint, accipiat." Generally speaking, however, it seems
+probable that their jurisdiction included all cases arising within the
+city limits, which could be dealt with in the regular _placita_ of the
+counts, and which were not of sufficient importance to be referred to
+the king in person, his representative the Count of the Palace, or his
+delegates the _missi regii_.
+
+When the count went up to the general yearly _placitum_ of the king,
+as the representative of the _civitas_, according to the laws of
+Charlemagne he was to be accompanied by a certain number of the
+_scabini_; and these seem to have accompanied him not solely in the
+character of legal advisers, but also in a certain measure as
+representatives of the cities in which lay their jurisdiction: they
+are by no means what the exaggeration of Sismondi[71] calls "des
+magistrats populaires ... qui representaient la bourgeoisie"; but they
+certainly stood for the interests of the people, in a greater degree
+than any of the ruling powers we have as yet considered. Their number
+is variously stated in the laws of different kings, and their actual
+number seems seldom to have come up to the standard of legal
+requirement. Lewis the Pious requires twelve to accompany each count
+when summoned by the emperor: "veniat unusquisque Comes et adducat
+secum duodecim Scabinos";[72] but concedes that if so many could not
+be found in the city, their number should be filled out from the best
+citizens of the town: "de melioribus hominibus illius civitatis
+suppleat numerum duodenarium."[73] According to Charlemagne,[74] no
+one should come with the count to a king's _placitum_ unless he had a
+case to present, "qui causam suam quaerit, exceptis scabinis septem,
+qui ad omnia Placita esse debent." And again: "Ut nullus ad placitum
+banniatur ... exceptis scabineis septem, qui ad omnia Placita praeesse
+debent";[75] and seven seems to have been the usual number expected,
+and their attendance was compulsory; though sometimes only two appear,
+and in a few cases none at all.
+
+Of all matters relating to this office, the one which is of most
+interest to us, and the one which most clearly shows the difference
+which was designed to exist between it and that of the other judges,
+was the manner in which the office was obtained. In this procedure we
+can trace almost distinctly that the object of the central power which
+established it was to secure greater justice and greater freedom to
+the subjects who came under its jurisdiction. The fact was recognized
+by the new government that the power of the local heads was too great
+to suit the principle of universal central control, which was the
+keynote of Charlemagne's system of administration, and was exercised
+in too arbitrary a manner; and that some check was necessary to curb
+the spirit and limit the independence of these local lords of the soil
+and the city who had little consideration for their inferiors, and who
+might at any time become a source of danger to their superiors. Such a
+check was found, in regard to the central authority, in the _missi
+regii_, and in reference to the general public, in the _scabini_ or
+city judges.
+
+In the old Lombard constitution we have seen the gastald, chiefly,
+however, in the matter of judicial decisions, exercise a controlling
+influence on the arbitrary action of the duke; but as the power of the
+count varied from that of the duke, so that of the _scabinus_ differs
+from that of the gastald, only perhaps in a greater degree. At the
+time when the count assumes the place of his predecessor the duke, the
+_scabinus_ displaces the gastald, although he cannot be said to have
+assumed exactly the same position as the latter, nor to have filled it
+in precisely the same way. The _scabinus_ did not have, of course, any
+direct limiting control over the actions of the count; for any such
+power in the hands of a body of lesser officers would have been alike
+contrary to the spirit of feudalism which characterized the age, and
+impossible to its forms; but being the principal judicial
+functionaries of the district, into their hands fell most of the cases
+which formerly went to the _placita_ of the count; and while the wish
+of the great emperor, that even the meanest subject of the realm
+should receive impartial justice at their hands, might have failed in
+its effect, its fulfilment was made more sure by the method prescribed
+for the election of the officers whose duty it was to execute it.[76]
+
+In describing the method by which the _scabini_ gained their office, I
+am in some doubt as to the proper terms to be employed. I have just
+made use of the word "election," but cannot let it stand without some
+qualification. It was not an election in the strict sense of the word
+as we now understand it, but it was as near an approach to a popular
+choice as was possible in the age in which it existed. The citizens of
+a municipality did not nominate and elect by their votes a popular
+magistrate, as some writers would have us believe; for such a
+proceeding would have been an anomaly in the eighth century under the
+rule of a Frankish emperor. But the people had a voice, and from the
+frequent mention of their intervention it would seem an important
+voice, in the selection of those who were to be their judges, and who
+were to assist in representing them in the royal assembly. The
+original appointments were made by some higher power, in most cases
+the _missi regii_, the direct representatives of the king; but these
+were made not arbitrarily, but always "cum totius populi consensu."
+This was the important point; it was so far a popular office that the
+free consent of the people was always necessary to make valid the
+appointment of any incumbent. According to the ideas and customs of
+the eighth century, such a method of procedure would represent a
+fairly popular election; for we know well that in the times of the
+greatest freedom, the Teutonic idea of a popular vote never went
+beyond the mere expression of assent or dissent by the assembled
+freemen. The initiative was always left to the king or chief who
+conducted the meeting, just as much as it was in the ancient assembly
+held on the classic plains of Troy. In a capitulary[77] of Charlemagne
+of the year 809 it is decreed: "ut Scabini boni et veraces cum Comite
+et populo elegantur et constituantur": and more specific directions
+are given by Lothar I. in the year 873, in case of a _scabinus_ found
+to be an unjust judge. He says:[78] "ut Missi Nostri ubicumque malos
+scabinos invenerint ejiciant, et totius populi consensu in loco eorum
+bonos eligant." From this latter example we see that the _missi_ had
+the power of dismissal "for cause," as well as of nomination. In fact,
+the king and his ministers, in the interests of impartial justice,
+kept constant watch on the acts and judgments of the _scabini_, and a
+law of Lothar I. tells us that "quicumque de Scabinis deprehensus
+fuerit propter munera, aut propter amicitam injuste judicare" should
+be sent up to the king to render an account of the manner in which he
+had fulfilled the duties of his office.
+
+Such then were the duties, the privileges and the restrictions of the
+first magistrate to whom we could venture to ascribe any of the
+attributes of a popular judge: a representative of the people at the
+assembly of their ruler; a judge of their suits and of their misdoings
+at home, and a check on the arbitrary power of their lord and feudal
+superior,--we can readily appreciate that the existence of such an
+officer within the city must have exercised some influence in giving
+to its inhabitants a greater sense of security, and consequently of
+importance, even if we cannot claim that in the earliest stages of
+municipal development it gave birth to any definite ideas of personal
+freedom or of municipal independence. But it can easily be seen that
+it formed another and an important factor in that idea whose progress
+we wish to trace, of a slowly growing feeling of individuality in the
+city as such, the municipal unit as conceived apart from the still
+legally recognized unit, the entire _civitas_. We have seen the count
+the representative of this idea as far as its actual connection with
+the constitution of the state was concerned, but it was the _scabinus_
+who was to represent it to the consciousness of the people, and to
+assist them in rediscovering the lost conception of a municipal unity.
+
+It would be incomplete to conclude this account of the various
+officers of government, without some mention of the position held by
+the bishops at this period. As it has been our duty throughout this
+paper to study the municipalities of Italy as only preparing to assume
+a position of individuality eventually leading to independence, so it
+is with regard to the bishops. While their social influence, as
+pointed out in the first part of this paper, was always notable, their
+political power, which formed one of the important steps in the
+progress of the communes towards a separate existence, has its birth
+at a time which is beyond the limits of this investigation. Not until
+the overthrow of the Carlovingian dynasty left Italy the prey of
+contending factions, and the crown passing quickly from hand to hand
+made each applicant anxious to gain the support of the more prominent
+electors, did the bishops obtain that legally constituted political
+power which, by breaking up and in many cases destroying the rule of
+the counts and great nobles in the cities, was the means of bridging
+over the wide gulf which lay between the idea of a district under the
+almost absolute rule of a great lord, and a civic autonomy governed by
+its own independent citizens. Even, however, if we are not yet to
+portray the bishop in a position of high political importance, we may
+briefly consider his social power and influence, and, as we have done
+with the cities themselves, indicate the steps by which he was enabled
+ultimately to gain such an exalted position.
+
+The relations of the bishop to the inhabitants of the cities during
+the period we are considering were pretty nearly such as described in
+the first part of this paper. He stood forth as protector of the weak
+and the oppressed; as mediator between an unfortunate prisoner and an
+unjust judge who was seeking his private interest rather than
+following the spirit of impartial justice; or between a downtrodden
+vassal and the almost unlimited power of his feudal superior. He
+lessened the severity of harsh judgments, he protested the imposition
+of unjust fines and penalties. In very many cases he was even
+appointed by the king or his representatives as co-judge to assist the
+_judex_ or the _missus_ in hearing cases where oppression or injustice
+was to be feared. But it is important for us to avoid confusing this
+kind of jurisdiction with that which he enjoyed in the century after
+he had attained the power and the office of count, and had combined
+the religious functions of head of the diocese with the secular ones
+of political ruler of the city. Any judicial authority possessed by
+the bishop at this earlier period was not in virtue of any political
+position he himself held, but came to him entirely in what might be
+called an extraordinary manner, that is, by delegation from the king,
+for definite specified occasions. As an example of this extraordinary
+delegated jurisdiction, I will refer to a document in the Archivio of
+the Canons of Arezzo[79] of the year 833, relating to the judgment of
+a dispute between "Petrum Episcopum Arretinum et Vigilium Abatem
+Monasterii Sancti Antemi," situated in the territory of Chiusi, over a
+privilege ceded to that monastery by Lewis the Pious in 813.[80] The
+bishop of Arezzo gained a favorable decision from a court constituted
+of some _judices_, _missi_ of the emperor, and of the bishops of
+Florence, Volterra and Siena, Agiprandus, Petrus and Anastasius.
+According to the terms of the document with regard to the composition
+of this court, the bishops sitting in it were "directi a Hlotario
+magno Imperatore"; and their powers are several times referred to as
+being "juxta jussionem et Indiculum Domni Imperatoris." Here, as in
+all other similar cases, we see plainly that there is no indication of
+any purely personal jurisdiction.
+
+That the influence of the bishop in affairs of state at this period
+was only of an individual, extra-official character can be seen also
+from the fact that the king considered the bishops themselves to be
+under his judicial jurisdiction in all secular matters, just as the
+lesser clergy came under the jurisdiction of the _judices_:[81] and
+further, that after the election to a church, the decision of the
+_judex_ must confirm the choice of the community in order to render it
+valid.[82] All disputes also between bishops and their clergy, between
+members of the body of clergy, and between these and members of the
+laity, were settled by the royal authority;[83] and what is most
+significant, there was a universal and freely used right of appeal for
+the clergy or laity from the decision of a bishop to the person of the
+king, who seems to have exhibited no hesitation in modifying or
+reversing sentences, even in matters relating to purely clerical
+discipline.[84]
+
+Even in the time of the Franks, when the consideration shown to the
+church and its representatives was much greater than under any of the
+Lombard kings, we find Charlemagne,[85] on suspicion of infidelity to
+his government, having sent to him and retaining as prisoners the
+bishops "Civitatis Pisanae seu Lencanae" and Pottoni, Abbot of the
+monastery of Volturno; and Lewis the Pious[86] sends into exile
+"Ermoldo Nigello Abatis," and in the year 818 several other bishops,
+including Anselmus "Mediolanensis Archiepiscopus," "Wolfoldus
+Cremonensis" and "Theodolphus Amelianensis."[87] None of these
+restrictions and limitations, however, although they arose chiefly
+from the strong opposition always existing between the local temporal
+rulers of the people and their spiritual rulers, could hinder the
+bishops from occupying that important position of mediators and of
+protectors of the people which we have ascribed to them.
+
+Turning now to a consideration of the earliest steps which may be said
+to have cleared the way for the political power of the bishops, we are
+met by a subject which, though of great interest in itself, is not
+sufficiently a part of this investigation for us to do more than
+indicate the lines of its progress. This subject is the development of
+the practice of giving certain immunities and privileges to churches
+and monasteries, adopted by the Frankish kings, faithful sons of the
+church, and then followed by all their royal and imperial successors.
+In considering the important influence exercised by these immunities
+on the development of the espiscopal power and the effects of this on
+the growth of the communes, there are two essential facts which we
+must always keep prominently in mind. In the first place we must
+remember that the granting of immunities was a question of privilege
+to particular individuals or ecclesiastical institutions, and not a
+universal grant which affected in an equal degree all the dioceses of
+the realm. This led to the marked differences in rank and importance
+which existed between the various bishoprics, and in the tenth
+century, when the temporal power became in many cases an adjunct to
+the spiritual, caused some bishops to become powerful temporal
+princes, while others, unable to gain this pre-eminence, remained
+simply spiritual heads of their respective dioceses. So in the contest
+between the counts and the bishops we find the latter only victorious
+in certain cases, and consequently having only certain of the cities
+under their jurisdiction; a fact which is illustrated as late as the
+Peace of Constance, where in the ninth article the cities are still
+divided into episcopal and non-episcopal cities.[88] In the second
+place we must keep clearly before us an important fact, the truth of
+which any chronological account of the development of the principle of
+immunity would easily demonstrate, namely, that with the advance of
+time and with the growth of that principle, the changes which took
+place in the different sorts of immunities were not simply those of
+degree, but essentially and principally those of _kind_.
+
+A descendant of Charlemagne may have granted to some monastery or
+bishopric a greater alleviation of some of the fiscal burdens borne by
+it under his immediate predecessor, but a successor of Berenger when
+he granted a _privilegium_ did not simply perform the negative benefit
+of alleviating burdens; he endowed the head of the bishopric--probably
+in return for some service he had received at his hands or expected to
+receive--with the positive benefit of the political headship and
+possession of some city or district of a former count. I mean by this
+that the earlier immunities--and in these are included all given
+during the period we are discussing--were all of them what are termed
+simple or ordinary immunities; that is, those which deal with
+exemption--whether from burdens for which the receivers would
+otherwise be liable, or from jurisdiction to which they would
+otherwise have been subjected--of what may properly be called the
+private possessions of the churches concerned. They had nothing to do
+with the privileges of a later time, by which a power to exact burdens
+was granted and a positive jurisdiction over others allowed: that is,
+public functions bestowed rather than private rights conceded.
+
+That a distinction of such a character was a difference of kind and
+not of degree is so plainly apparent that it is unnecessary to dwell
+longer upon it, and it only remains for us to consider briefly the
+chronology of some of the changes that took place. If we adhere
+strictly to the proper signification of the terms used, the
+development can be somewhat succinctly described by the simple
+enumeration of the three characteristic features of its progress, viz.
+_protection, exemption, privilege_ that is jurisdiction or temporal
+power; and the three periods which are covered respectively by the
+prominence of these ideas can be roughly stated to be: for the first,
+the reigns of Charlemagne and his successors down to the time of
+Charles the Bald--including any indication of this idea which we may
+find during the reigns of the last rulers of the first Lombard
+kingdom; for the second, the reigns of Charles the Bald, Karloman, and
+Charles the Fat; and for the third, the full development of the
+episcopal power in the tenth century, down to the period of its final
+decline, and the rise of actual municipal government within the
+communes.
+
+It is doubtful whether immunities of any importance were granted even
+by the latest kings of the Lombards, before the invasion of the
+Franks. Under the first Lombard monarchy the church held a very
+subordinate position with regard to the state, and if privileges were
+granted to any of its members, they had attached to them no greater
+meaning than the simple extension to them of the _mundibrium_ of the
+king, such as was often allowed to private individuals; that is, they
+were simply grants of royal protection, and were not similar to the
+later grants which included both protection and privilege.[89]
+
+With the advent of Frankish rule under Charlemagne, marked
+consideration immediately appears for the church and its
+representatives. Not alone is ample protection granted to many of the
+churches of the kingdom, but to it is added the important function of
+exemption. The greatest evil endured in those days by the
+ecclesiastical authorities was exactions levied on their property and
+oppression exercised on their dependents by the dukes and counts under
+whose jurisdiction lay the temporal possessions of the churches and
+monasteries. Consequently the aim of every bishop and of every abbot
+was to obtain for the possessions of his diocese or his convent an
+exemption more or less complete from the civil administration of the
+neighboring secular ruler. For a long time there was no thought in the
+mind of the bishop of gaining for himself the functions of temporal
+jurisdiction, but simply that the power of the count should be
+restrained with regard to church property, that is, that he should not
+be able to exercise his judicial control over lands belonging to the
+church, except by the express permission, "per licentia data," and
+with the concurrence of the bishop himself. This and nothing more is
+what is meant by all of the charters of exemption granted by the
+Carlovingian rulers, down to the time of Charles the Bald, when, as we
+shall presently see, a change was introduced.
+
+It would be useless for me to cite examples of such charters, for
+their number is countless, and reference may be made to any of the
+great collections of mediaeval documents for confirmation of what has
+just been said; for during the reigns of the earlier Carlovingians,
+the strong reverence for the church and respect for its officers which
+characterized the Frankish nation from the beginning led to the
+extension of these privileges to much the greater number of the
+churches in the realm. Not all churches enjoyed such grants, and not
+all those accorded were of the same liberal character, but the number
+given and the amount of liberty to the church thereby bestowed was
+sufficient to give to the clergy that degree of importance which
+ultimately culminated in making them the great lords that we find them
+in the tenth century. To give an idea of the tenor of these documents,
+I will, however, quote a few lines from the earliest one that has come
+under my notice in Carlovingian times, namely a diploma of the year
+782, issued to Geminiano II., bishop of Modena, and preserved in the
+archives of that city. Here we find that: "Nullus judex publicus ad
+causas audiendum, vel freda exigendum, seu mansiones aut paratas
+faciendum, nec fidejussiones tollendum neque hominibus ipsius
+episcopatus distringendum," etc. This is sufficient to show the
+character of exemption from secular jurisdiction.[90]
+
+The next forward step in the advance of the bishops to temporal power
+was made probably about the time of Charles the Bald; though under his
+two immediate predecessors, Lothaire[91] and Lewis II.,[92] we already
+see indications of an extension of the quality of exemption to include
+freedom from the payment of all public dues and the bearing of all
+public burdens.[93] It was precisely the introduction of this element
+of exemption from public burdens which marked the change in the nature
+of the immunities granted from the time of Charles the Bald, down to
+the period when the element of jurisdiction and real temporal power
+was introduced under Guido and Berenger. Up to this time, the grounds
+on which similar charters had been sought had been protection from the
+oppression of the counts, and had resulted, as we have seen, in the
+granting of simple charters of protection which were of no very great
+significance. But now it is exemption from public burdens, etc., that
+is made prominent, in addition to a complete severance from all
+jurisdiction and control of the secular power of the _civitas_ in
+which the bishop's see and domains are situated. That this concession
+also was sought by the bishop on the plea of protection for his
+dependents from oppression and exaction, does not diminish its
+importance; for it is easy to see that the line which separates
+recognized right of protection from recognized right of jurisdiction
+is one easily effaced, and defense from the tyranny of a foreign power
+can with little difficulty be transformed into domination by the
+professed defender.
+
+That this was the order of development consequent on these changes is
+proved by the temporal dominion gained by the bishops in the next
+century; and the steps of its growth marked by numerous immunities
+granted by Charles the Bald, Karloman[94] his successor, and Charles
+the Fat, the last of the Carlovingians in Italy. As a good example of
+the complete development of this advance gained by the bishops, I will
+mention a charter given by Charles the Fat to John, bishop of Arezzo,
+in the year 879, in which he confirms to him all the property and the
+rights of that see, and takes him under his protection, "sub
+immunitatis suae defensione": he then goes on to explain what this
+term meant, giving a full account of the extent to which a bishop's
+property was exempted from the jurisdiction of the _judex publicus_,
+and protected from the imposition of burdens and exactions.[95]
+
+The next step in the growth of the episcopal power, and the most
+important of all, is the progress from exemption to privilege, to
+jurisdiction; and occurs after the return of the kingship of Italy to
+the hands of native kings.[96] It means the full development of the
+bishop into the temporal ruler, and as such belongs properly to the
+history of the tenth century, and consequently is beyond the limits of
+the present paper.
+
+We have now considered individually and separately, in the course of
+their development, the different elements which, when combined and
+modified by the various changes described, contributed to form the
+solid foundation upon which the fabric of the future independent life
+of the cities was to be built. We have been dealing exclusively with
+institutions, and the manner in which their growth has been
+accomplished. For it is in the institutional life of a people, and in
+the change and development it undergoes, that are to be found those
+elements which form the basis for all future changes, whether simply
+in the form of its government or in the structure of its social
+system. If once a clear picture is gained of the structural parts
+which form the institutional framework of any particular development,
+and a truthful presentation of these forming principles is proved and
+established, a detailed account of the material expression of them is
+a matter of secondary importance.
+
+I have not, in this paper, attempted to describe the actual condition
+of any particular municipality, or even presented a picture which
+could represent the material existence of the cities as a whole. Such
+a picture would only be a necessary part of a study of institutions
+when the city itself was the unit to be investigated, and not of one
+whose chief object is to prove that the city as such had no
+constitutional existence, but simply formed a part of another
+institutional unit. When we reach a period in which the city stands
+out as an object of study in itself, and when we do not have to trace
+its history only by learning that of other institutions which included
+and overshadowed it, then the practical life of the people within its
+walls becomes of the greatest importance, even to the smallest detail
+of civic law or city custom; and then, and not till then, begins what
+could properly be called a study of municipal institutions.
+
+During the three centuries that we have been investigating, the study
+of the Italian municipalities has been, as we have seen, but the study
+of other institutions of which the municipality formed only a part. No
+attempt has been made to do more than prove the origin and trace the
+earliest development of those principles, which in their maturity were
+to gain for the municipal unit that position where the study of its
+own structure would become an object of interest, entirely apart and
+distinct from any of its surroundings. It has been shown that the city
+did not inherit any such position from its immediate predecessor the
+Roman _municipium_, which we have learnt to consider as overthrown,
+from a constitutional standpoint as annihilated; but that the new
+principle introduced into state life by the northern conquerors of
+Italy, the principle of administration by county rather than by urban
+divisions, relegated the city to an inferior place as part of a rural
+holding, instead of leaving it the centre of a circle of rural
+dependencies. Having demonstrated the absence of all constitutional
+recognition of the municipal unit as such, I have attempted to show
+how a condition of such legal insignificance became generally a
+condition of actual importance; how from a position of such negative
+interest, the advance of the city was commenced along a road which was
+ultimately to restore it its old pre-eminence, even adding to this in
+time the almost forgotten attribute of sovereignty. The motives for
+this advance we have seen to be no higher ones than convenience and
+expediency, which made the _urbs_ of every _civitas_ the natural
+centre of its local administration, thereby in fact, if in no way by
+law, restoring to it some of the elements of individuality, if not of
+pre-eminence, which it had lost. The means employed we have seen to be
+the functions of the various officers of state: the _dux_, the count
+and the gastald, who connected the city with the state, and the
+_scabinus_ and the bishop, who represented this connection to the
+consciousness of the people. We have noted the marked effects produced
+on the development of a more popular feeling, by the changes
+introduced by the great emperor of the Franks; which, by diminishing
+the power of the local lords, accomplished a double benefit; on the
+one hand by saving the people from the arbitrary rule of a feudal
+superior; on the other, by causing the city to become more of a
+dependence and more of a support to the state as a whole. And finally
+we have left the city prepared, on the return of another dynasty of
+native kings, to accept, at least in a large number of cases, the
+domination of another kind of lord, a spiritual one; who was to serve
+as a medium for breaking up the power of the old lords of the
+_civitas_, and from whom it would be an easier task for the commune of
+the future to wrest the power and the sovereignty which was to make it
+a free and independent autonomy.
+
+       *       *       *       *       *
+
+AUTHORITIES REFERRED TO IN THE TEXT AND FOOT-NOTES.
+
+_Anastasius Bibliothecarius_: Vitae Romanorum Pontificum. v.
+_Muratori_: Script. Rer. Ital., Tom. III., Pars I.
+
+_Baluzii, Stephanus_: Capitular. Regum Francorum additae sunt
+_Marculfi_ Monachi et aliorum formulae veteres. Parisiis, 1780. 2
+vols. fol.
+
+_Bethmann-Hollweg_: Schrift ueber den Ursprung der lombardischen
+Staedtefreiheit.
+
+_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. Goett., 1803-23.
+
+_Fumagalli, Angelo_: Codice Diplomatico S. Ambrosiano. Milano, 1805.
+
+_Hegel, Carl_: Geschichte der Staedteverfassung von Italien. Leipzig,
+1847.
+
+_Leo, Heinrich_: Verfassung der lombardischen Staedte. 1820.
+
+_Liutprandus Ticinensis_: Opera, v. _Pertz_, Monum.; Script., Tom.
+III.
+
+_Lex Salica_. v. _Canciani_: Barbar. Leg. Antiq., Tom. V.
+
+_Lupo, Mario_: Codex Diplomaticus civitatis et ecclesiae Bergomatis,
+etc. Bergomi, 1784-1799. Vols. 2.
+
+_Mabillon_: De Re Diplomatica. Parisiis, 1709. (General
+Collection.)--Annales Ordinis S. Benedicti. Parisiis, 1703-39.
+
+_Macchiavelli, Nicolo_: Istorie Florentine, _v_. Delle Opere, Tom.
+II., ed. Milano, 1804.
+
+_Migne_: Patrologiae Cursus Completus, etc. Series Latina.
+
+_Muratori_: Scriptores Rerum Italicarum. Mediolani,
+1723.--Dissertazioni sopra le Antichita 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 Republiques Italiennes du Moyen Age. Paris,
+1840.
+
+_Tacitus_: Germania.
+
+_Tiraboschi, Girol_: Storia della Badia di S. Silvestro di Nonantula,
+etc. Modena, 1784-1785.
+
+_Tomasini, Ludov._: Dei Benefizii.
+
+_Tommasio_: Historia sanese.
+
+_Troya_: Delia Condizione dei Romani, etc.
+
+_Ughelli_: Italia Sacra. 10 vols. fol. Venetiis, 1717-1722.
+
+Collections of documents in the _Archivii_ of many cities of Northern
+Italy.
+
+N.B.--The above list is restricted to those works to which direct
+reference is made in the text and foot-notes.
+
+
+FOOTNOTES:
+
+
+[1:] _Paulus Diaconus_: De Gest. Lang., Lib. II., c. 32. v.
+_Muratori_: Script. Rer. Ital., T. I., p. 436. The Gothic system was
+to take one-third of the land itself from the conquered people; the
+Lombards on the other hand took one-third of the produce, "_frugum_."
+
+[2:] With the growth of society and the increase of population, the
+_milites_ gain added power, and become the "_catanei_," the barons of
+the period, or as some are pleased to call them, the "rural counts."
+
+[3:] _Tacitus_: Germania, cap. xvi.
+
+[4:] The Sagas say the Lombards came originally from Scandinavia.
+Their name is commonly derived from "Long-beard," but more probably
+came from words signifying "a long stretch of land." Their first
+appearance in history is during the first century of the Christian
+era, in the region of Magdeburg. All trace of them is then lost till
+they reappear in the fifth century on the banks of the Oder; they then
+go south to the river Theiss. They are in a constant state of war with
+the Gepidae, a tribe nearly as fierce as themselves, which strife is
+supposed to have been fomented by the eastern emperors. In the year
+567 the Lombards, under their king Alboin, together with the Avars,
+begin to move into Pannonia from Dacia and the region of the Don.
+Kunnemund, the king of the Gepidae, is killed, and his conquered
+people merged in the race of their conquerors. In the next year, still
+victorious, they overrun Northern Italy.
+
+[5:] Some of these cities were enabled to hold out for a considerable
+period. Pavia was not taken till 572.
+
+[6:] To these seaports some of the functionaries of the inland towns,
+especially among the clergy, were able to effect their escape. For
+instance, the Archbishop of Milan fled to Genoa, and the Archbishop of
+Aquileja to Venice.
+
+[7:] The Christianity of the Lombards of the invasion was of the Arian
+form. Autari, who reigned from 584 to 591, married Theodolinda of
+Bavaria, and she first introduced orthodox Christianity. At the death
+of Autari she married Agiluf (591-615) duke of Turin, who was an
+Arian, but who pursued a mediative policy. During his reign a double
+ecclesiastical system, with orthodox and Arian bishops side by side,
+was maintained.
+
+[8:] Justinian gave him the right to exercise, in reference to each
+city, the functions of the governor of the province, during the
+latter's absence; and granted him jurisdiction in all cases not
+involving a larger sum than 300 _aurei_. He had a certain amount of
+authority in criminal matters, and two apparitors were attached to his
+person. The _defensores_ had two guarantees for their power and their
+independence. 1. They had the right of passing over the various
+degrees in the public administration, and of carrying their complaints
+at once before the praetorian prefect; this freed them from the
+jurisdiction of the provincial authorities. 2. They were elected by
+the general body of the inhabitants of the _municipium_.
+
+[9:] _Paulus Diaconus_: Lib. V., 7, 17, 18.
+
+[10:] His words are: "Erano stati i Longobardi dugento ventidue anni
+in Italia, e di gia non ritenevano di forastieri altro che il
+nome."--_Nicolo Macchiavelli_: Istorie Fiorentine, Lib. I. _vid_.
+Opere, Vol. III., p. 219 (ed. Milano, 1804).
+
+[11:] It is difficult to draw any picture of the different ranks of
+society at this period, which would at once be perfectly accurate, and
+yet definite enough to give entire satisfaction to the student.
+
+[12:] Geschichte des roemischen 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 roem. Rechts im Mittelalter, S. 422 et al.
+
+[23:] _Muratori_: Script. Rer. Ital., Tom. I., Pars II., p. 15.
+
+[24:] _Paulus Diaconus_: De Gest. Langobard., Lib. III., cap. 16.
+
+[25:] _Brunetti_: Cod. Diplom. Toscan. Docum. No. 6, anni 715.
+
+[26:] _Ibid_.: Cod. Diplom. Toscan. Docum. No. 8, anni 715.
+
+[27:] _Ibid_.: Docum. No. 11, anni 716.
+
+[28:] _Ibid_.: Docum. No. 50, anni 756.
+
+[29:] _Muratori_: Script. Rer. Ital., Tom. I., Pars II., p. 192E.
+
+[30:] _Muratori_: Antiq. Ital. Diss. II., p. 186.
+
+[31:] _Muratori_: Script. Rer. Ital., Tom. II., Pars II., p. 409.
+
+[32:] In a donation to "Aimo Voltarius, abitator castrii Viterbii."
+Vid, _Troya_: Della Condizione, etc., p. 361. Docum. No. 6, anni 775.
+
+[33:] _Ughelli_: Italia Sacra, Tom. III., p. 28.
+
+[34:] _Ibid_.: Tom. II., p. 145.
+
+[35:] The word _palatium_ in the signification of _fiscus_ is perhaps
+more frequently used by the Frankish kings than by the Lombard. See a
+_privilegium_ granted to the nuns of the Posterla di Pavia by Lothar
+I. in the year 839, in which it appears that any one infringing its
+privileges must pay seventy pounds of the best gold, to be applied
+"medietatem Palatio nostro, et medietatem parti ejusdem monasterii."
+Vid. _Muratori_: Antiq. Ital. Diss. XVI., Tom I., P. I., p. 233. Also
+several diplomas of Charles the Fat, and others make use of the same
+term. The word _camera_ for _fiscus_ as the imperial treasury, was
+probably not used before the time of Lewis II.; the first authentic
+use of it in that sense being probably a diploma of that monarch of
+the year 894, where he says that one hundred pounds of gold are to be
+paid "medietatem Imperiali Camere et medietatem suprataxatae
+Angilberge." Vid. _Muratori_: loc. cit. p. 234.
+
+[36:] From _Otto of Freising_, De Gest. Freder., Lib I., cap. 31, we
+know that the same distribution took place in Hungary, which was
+divided into seventy _comitates_; "et de omni justitia ad Fiscum
+Regium duas lucri partes cedere, tertiam tantum Comiti remanere."
+
+[37:] _Charlemagne_: Leg. Lomb. Nos. 127 and 128.
+
+[38:] Lex No. 128.
+
+[39:] _Muratori_: Diss. Ant. Ital. Dissert. VIII., Tom. I., P. I., p.
+96.
+
+[40:] _Muratori_: Script. Rer. Ital., Tom. II., Pars II.
+
+[41:] In illustration of this fact I will cite the names of some of
+the various taxes, dues and privileges, mention of which is found in
+the old documents. The feudal character of these will be apparent to
+the reader. Following the rough division indicated in the text, we
+have:
+
+I. Under heading "_Fines and Forfeitures_":
+
+  1. Forfaturae:
+        Forisfacturae,
+        Multae (Mulcte),
+        Freda,
+     _e.g_. Leudis (Leudum) for homicide.
+     Penalties and compositions for crime.
+
+  2. Scadentiae:
+        Excadentia,
+        Bona caduca.
+     _Publicum_ falls heir to various classes of individuals. Cf. Leg.
+        _Rhotari_, No. 158 et al.
+
+  3. Lagan (Laganum).
+     Seizure of shipwrecked goods by the state. Examples more
+       common after year 1000 A. D.
+
+II. Under the head of "_Taxes and Privileges_":
+
+  1. _Onera Publica_, or Angariae (Perangariae), Factiones publicae.
+     _a_. Heribannum: Penalty for avoidance of military service.
+          Cf. _Charlemagne_, Leges, No. 23 et al.
+     _b_. Heribergum: Hospitality to _Missi_ of emperor or king. Cf.
+          _Charlemagne_, Leges, No. 128 et al.
+     _c_. Mansionaticum (Mansiones, Evectio): Lodging for king and
+          his ministers.
+     Conjectum was a pro rata tax on a district so as to meet the
+       expense. Cf. _Lud. Pius_, Leg. Nos. 54, 24, et al. loc.
+     Tractoria gave specification of what should be provided in each
+     case. For Formula, v. _Marcolfo_, Lib. I.
+     _d_. Veredi (Paraveredi): Horses and beasts of burden for king
+       and ministers. Cf. in Capitular. Reg. Franc. saepe. Capit.
+       _Lud_. II., Ad Missos, etc.
+     Census vehicularius, fiscalis or publicus was post to carry, free
+       of expense, king's letters, etc.
+     _e_. Foderum (Fodrum): Support of a king and his army in
+       passing through a district. Cf. many privileges and exemptions
+       to different churches and monasteries. Articles of the Peace of
+       Constance. Some privileges to private persons.
+
+  2. _Teloneum_.
+    _a_. Pedagium: General word for _tolls_ on streets, roads,
+bridges, etc.
+      [Greek: alpha]. Pontaticum, for bridges.
+      [Greek: beta]. Portaticum, for gates.
+      [Greek: gamma]. Platiaticum, for license to sell in market.
+      [Greek: delta]. Casaticum, for houses.
+      Cf. _Otho_ II., Diploma to Monast. Volturno a. 983, et al. loc.
+    _b_. Ripaticum: General word for tolls and taxes for transport by
+     water. Cf. Diploma of Berenger II. v. _Ughelli_, Italia Sacra,
+   Tom. V. Also a Privilegium of Charlemagne, anno 787. v.
+_Ughelli_, Italia Sacra, Tom. V., a. 787. This privilegium
+confirms the laws of Liutprand, and shows how much the
+inhabitants of Como had to pay in various places in moving salt
+down the rivers of Lombardy.
+      [Greek: alpha]. Paliscitura,
+      [Greek: beta]. Trasitura,
+      [Greek: gamma]. Navium ligatura.
+      Wharfage dues.
+      [Greek: delta]. Portonaticum, harbor dues.
+      [Greek: epsilon]. Curatura, probably a tax on certain
+merchandise.
+      [Greek: zeta]. Passagio, probably same as preceding, but
+possibly a tax in favor of those going to the Holy Land.
+
+  8. _Auxilia_ (Occasiones) (dues from vassals):
+    _a_. Praestitiones.
+    _b_. Dona.
+    _c_. Gratuita.
+    _d_. Mutua.
+    More common after the year 1000 A.D.; but, for an example in the
+    year 878, see a Diploma of Lewis II., published by _Puricelli_
+  in his Monumenti della Basilica Arnbrosiana.
+
+III. Under head of "_lands owned by Crown or Publicum_":
+
+  1. _Terra Censualis_. Holder of t.c. owed these duties:
+    _a_. Glaudaticum,
+    _b_. Escaticum,
+    _c_. Herbaticum,
+    _d_. Datio,
+    _e_. Alpaticum,
+    _f_. Agrarium.
+    Payments for right to pasture cattle and swine on public lands.
+      Cf. Chron. da Volturno, a. 972. Chron. Farfensis. Privileg. Lud.
+      Pii, et al. loc.
+    _g_. Terraticum, amount of produce given for right to cultivate.
+    _h_. Pascuarium, payment for sheep pastured on the public land.
+    _i_. Boazia, tax levied on every pair of oxen; probably not
+      developed before XII. century.
+
+The taxes and so forth mentioned in this list are by no means all that
+were levied, but are a fair representation of them. After the year
+1000 their feudal character is even more strongly marked.
+
+[42:] This statement, while true of all integral parts of the Lombard
+kingdom, must, however, be modified in regard to the great duchies of
+Spoleto and Beneventum, which were under a different system of
+internal government from the kingdom of Lombardy proper--were, in
+fact, small tributary kingdoms under great dukes enjoying practically
+royal powers. The Duchy of Beneventum seems to have been divided into
+_gastaldata_, divisions of territory similar to the _civitates_ of
+Lombardy, but presided over by a gastald instead of by a _dux_ or
+_comes_. In the charter of division made between the dukes of
+Beneventum and of Salerno in the year 851--v. _Muratori_, Ant. Ital.
+Diss. X.--are mentioned "integra gastaldata, seu ministeria Tarentum,
+Latinianum, Cusentia, etc." And, at an earlier date, _Paulus
+Diaconus_--De Gest. Long., Lib. V., cap. 29--tells of a certain
+"Alzeconis Dux de Bulgaris," to whom Grimoald, Duke of Beneventum,
+gives "ad habitandum ... Lepianum, Bovianum et Inferniam, et aliis cum
+suis territoriis civitates; ipsumque Alzeconem mutato dignitatis
+nomine, de duce gastaldium vocari praecepit."
+
+[43:] v. _Muratori_: Script. Rer. Ital., Tom. III., Pars II., p. 162D.
+
+[44:] _Liutprandi_: Leg. Lib. VI., Leg. 29. v. _Muratori_: Script.
+Rer. Ital., Tom. I., Pars II.
+
+[45:] _Muratori_: Ant. Ital. Diss. X., Vol. I., P. I., p. 121.
+
+[46:] _Muratori_: Script. Rer. Ital., Tom. III., p. 155A.
+
+[47:] Ed. _Rhotari_: Leg. 23 and 24. v. _Muratori_: op. cit., Tom. I.,
+Pars II.
+
+[48:] _Liutprandi_: Leg. Lib. IV., 7.
+
+[49:] _Liutprandi_, Leg. Lib. IV., 8, says: "Si homines de sub uno
+Judice, de duobus tamen Sculdahis causam habuerint, etc."
+
+[50:] _Paulus Diaconus_: De Gest. Lang., Lib. VI., 24.
+
+[51:] _Muratori_: Ant. Ital. Diss. X., Vol. I., Parte II., p. 116.
+
+[52:] _Ughelli_: Italia Sacra, Tom. V.
+
+[53:] _Caroli Magni_, Leg. Lomb. 36: "Ut nullus homo in Placito
+Centenarii neque ad mortem, neque ad libertatem suam amittendam, aut
+res reddendas vel mancipia judicetur. Sed ea omnium in praesentia
+Comitum, vel Missorum nostrorum, judicentur."
+
+[54:] _Liutprandi_: Leg. Lib. V., 15.
+
+[55:] Chronicon Fontanellense, Cap. I. v. _Muratori_: Ant. Ital. Diss.
+X., Vol. I., Parte I., p. 117.
+
+[56:] _Rachis_, a decree of--existing in the Monast. of Bobbio. v.
+_Muratori_: Aut. tal. Diss., Vol. I., Part I., p. 118 (Diss. X.).
+
+[57:] _Liutprandi Ticinensis_: Historia, Lib. I., cap. 10. v.
+_Muratori_: Script. Rer. Ital. II., p. 431. _Pertz_, Monum.; Script.,
+Tom. III.
+
+[58:] The opposite sides of the question are ably presented by
+_Savigny_: Geschichte des Roem. Rechts, etc., Vol. I., p. 230 et seq.
+(trans.), and _Hegel_; Staedteverfassung v. Italien, etc., I., page
+470, note.
+
+[59:] It is difficult to find an English word which intelligently
+renders the various names for these freemen in their judicial
+capacity, used by the different nations, such as _arimanni,
+rachinburgi, boni homines_, etc. Most English writers make use of the
+German word _schoeppen_. I have taken the rendering "judicators" from
+Edward Cathcart, the translator of the first volume of Savigny's
+Geschichte des Roemischen Rechts im Mittelalter.
+
+[60:] _Liutprandi_: Leg. 25, Lib. IV., 7.
+
+[61:] _Rachis_: Leg. No. 11.
+
+[62:] _Savigny_: Geschichte, etc., Vol. I., p. 233, trans.
+
+[63:] Preserved in the Archives of Farfa. Published by: _Mabillon_:
+Annales Ord. S. Benedicti, Tom. II., p. 154. _Muratori_: Script. Rer.
+Ital., Tom. II., Pars II., p. 341.
+
+[64:] We have confirmation of this from a document of the early part
+of the ninth century, which says: "De Vicariis et Centenariis qui
+magis propter cupiditatem quam propter justitiam faciendam saepissime
+placita tenent, et exinde populum minus affligunt, ita teneatur ... ut
+videlicet in anno tria solummodo generalia placita observent et nullos
+eos amplius placita observare compellat." From Worms Capitulary of
+_Lewis the Debonnair_, a. 829, c. 5. Also compare: Capit. V., anni
+819, Art. 14. Capit., Lib. IV., c. 57. (_Baluzii_, 616 infr., 788
+supr.) _Caroli Magni_, Leg. Long. 69. (_Canciani_ I., 157.)
+
+[65:] _Brunetti_: Cod. Diplom. Toscan. Doc. No. 18.
+
+[66:] _Bouquet_: Rerum Ghillicarum et Francicarum Scriptores.
+
+[67:] _Baluzii_: Capit. Reg. Franc. a. 789, Tom. V., p.
+746.
+
+[68:] Capit. I., Art. 13, anni 813. v. _Baluzii_: Capit. Reg. Franc.,
+Tom. I., p. 509.
+
+[69:] _Muratori_: Ant. Ital. Diss. X., Vol. I., Pars I., p. 115.
+
+[70:] _Caroli Magni_: Leg. Long. No. 92.
+
+[71:] _Sismondi_: Rep. Ital. du Moyen Age, Vol. I., p. 268.
+
+[72:] Capit. II., anni 819, Art. 2. v. _Baluzii_: Capit. Reg. Franc.,
+Tom. I., p. 605.
+
+[73:] Loc. cit. sup.
+
+[74:] _Caroli Magni_: Leg. Long. No. 116.
+
+[75:] _Caroli Magni_: Cap. Minora, anni 803, c. 20.
+
+[76:] "Adjutores Comitum, qui meliores, et veraciores inveniri
+possunt." _Lothar I_.: Leg. No. 49. v. _Muratori_: Ant. Ital. Diss.
+X., Vol. I., Parte I., p. 112.
+
+[77:] _Caroli Magni_: Capit. I., anni 809, Art. 22. v. _Baluzii_:
+Capit. Reg. Franc. I., 466 infr.
+
+[78:] _Lothar I_.: Capit. anni 873, Art. 9. v. _Baluzii_: Capit. Reg.
+Franc. Tom. II., p. 232. Leg. No. 48. v. _Muratori_: Diss. X., Vol.
+I., P. I., p. 112.
+
+[79:] _Muratori_: Ant. Ital. Diss. LXXVII., Tom. III., Parte II., p.
+189.
+
+[80:] Vid. _Tommasio_: Historia sanese, Lib. IV.; _Ughelli_: Italia
+Sacra, Tom. III., for this privilege.
+
+[81:] _Brunetti_: Cod. Diplom. Toscan. No. 8, a. 715. A priest named
+Gunthram says: "Nec cumquam ab episcopum Senensem coridicionem
+habuimus, nisi, si de seculares causas nobis oppressio fiebat,
+veniebamus ad judicem Senensem, eo quod in ejus territorio sedebamus."
+
+[82:] _Brunetti_: Cod. Diplom. Toscan. No, 8, a. 715. Germanus, a
+deacon, says: "Quoniam prelectus a plebe, cum epistola Warnefried [the
+Gastald of Siena] rogaturus ambulavi ad Luperceanum Aretine Ecclesie
+Episcopum et per eum consecratus sum."
+
+[83:] For example see a judgment of the year 771, in the Archivio of
+Lucca. For which vid. _Muratori_: Ant. Ital. Diss. LXX., Tom. III., P.
+II., p. 184.
+
+[84:] Good illustrations of all these statements are to be found in
+two documents in the Archivio Archivescovile of Lucca, of about the
+year 813. Vid. _Muratori_: Ant. Ital. Diss. LXX., Tom. III., Parte
+II., p. 184.
+
+[85:] Codex Carolinus--_Adriani I_., Epist. Nos. LV., LXXIX., LXXII.,
+L.
+
+[86:] _Ermoldi Nigelli_: Poema. V. _Muratori_: Script. Rer. Ital.,
+Tom. II., Pars II.
+
+[87:] _Muratori_: Ant. Ital. Diss, LXX., Vol. III., Parte II., p. 188.
+
+[88:] _Pertz_: Monum. German., Tom. IV., p. 176.
+
+[89:] It is true that _Muratori_ (Script. Rer. Ital., Tom. I., Pars
+II., p. 192) publishes a diploma to the monastery of Novantulanum,
+near Modena, purporting to be by Aistulf and of the year 753; and (in
+Ant. Ital. Diss. LXXI., Vol. III., P. II., p. 256) another by
+Desiderius to the monastery of Santa Giulia di Brescia, which seems to
+grant exemption and protection if not privilege. But in the first the
+formula employed is so exactly similar to that of the later Frankish
+documents issued for the same purpose, as immediately to excite
+suspicion; and in the second, Muratori himself finds something
+radically wrong with the chronology.
+
+[90:] An even better example can be found among Charlemagne's
+diplomas, by referring to one granted by him to the church of Reggio,
+and published by _Ughelli_: Italia Sacra, Tom. V., Appendice.
+
+[91:] See a charter given by Lothaire to Pietro, bishop of Arezzo in
+843, the year of the Treaty of Verdun, v. _Muratori_: Ant. Ital. Diss.
+LXX., Vol. III., Parte II., p. 196.
+
+[92:] See a law of Lewis II. of 855, made in the Diet of Pavia. v.
+_Muratori_: Script. Rer. Ital., Tom I., P. II. (added to Leg. Lomb.).
+
+[93:] Certain "dona," however, supposed to be voluntary, were always
+excepted. See a diploma of Louis of the year 854 to the monastery of
+St. Gall in Germany, where it describes the usual "dona" for _all_
+monasteries as "Caballi duo cum scuteis et lanceis." v. _Muratori_:
+Ant. Ital. Diss. LXX., Vol. II., Part II., p. 204.
+
+[94:] See a _privilegium_ given by him in the year 877 to the nuns of
+the Posterla, Sta. Teodata at Pavia. v. _Ughelli_: Italia Sacra, Tom.
+V.
+
+[95:] _Muratori_: Ant. Ital. Diss. LXX., Vol. III., Parte II., pp.
+196, 197.
+
+[96:] Probably the earliest of such privileges was one granted to the
+bishop of Modena by Guido in the year 892, and published by _Ughelli_:
+Italia Sacra, Tom. II., p. 98.
+
+
+
+
+
+End of the Project Gutenberg EBook of The Communes Of Lombardy From The VI.
+To The X. Century, by William Klapp Williams
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