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.

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. · 第 2 / 6 段