Chapter II: Part II (1)

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.