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.