form an exception. That he was the head of the district judicial
system has in part been already shown, and will come out more clearly
when we come to define the powers of some of his subordinates. His
leadership in war we have seen to be but the natural continuance of
his original office; and that as _dux_ he was to be ranked among the
first nobles of the land, the "optimates," the "viri illustres," we
can see from the following passage in the laws of Liutprand, when in
the prologue to the third book already quoted, he gives forth the
edict with the judges as "una cum illustribus viris optimatibus meis
ex Neustriae et Austriae et Tusciae partibus vel universis nobilibus
Langobardis."[23] Although the position of the _duces_ as nobles of
the land never altered, their power relative to that of the king
suffered many modifications. The ducal power--"principes" of
Tacitus--preceding among the Lombards that of the king, we see the
dukes exercising much greater control in the earlier stages of the
monarchy: even, on the death of Clefis--576--actually establishing a
sort of aristocratic republic, under the leadership of thirty dukes,
which lasted for ten years; after which time, on the event of a
dangerous war with the Greeks and the Franks, Authari, the son of
Clefis, gained the throne by election; the dukes giving up to him,
says Paulus Diaconus,[24] the half of their estates for the support of
his dignity, retaining, however, the rest, not as servants of the
king, but as "principes" of the people, an important distinction.
Agiluf--591 to 615--originally duke of Turin, met with much opposition
from the power of the dukes; but when we come to the time of
Rhotari--636 to 652--we find their power already declining, and in the
eighth century, as for example under Liutprand--712 to 736--the laws
show them reduced to the position of the other _judices_, but still
representing a high aristocracy whose consent was, as we have seen,
necessary to all acts of the king.
The most important of the functions of the _dux_ as _judex_ was
holding the _Curtis Regia_ or _Curtis Ducalis_, in the largest city or
"urbs" of every _civitas_. Here, in conjunction with his subordinates,
he heard all cases which did not go up to the king for judgment, and
here was centered the fiscal administration of the _civitas_. To
describe in detail the composition of these _curtes_, their
jurisdiction and methods of procedure, would require a whole chapter
of no mean proportions, and however interesting in itself, would be
out of place in the present investigation. All that it is needful for
us to consider is the relation of these _curtes_ to the municipalities
in which they were located. Of their location within the city walls
the proofs to be found in numbers of the old documents are to me
conclusive. I will give a few examples, however, commencing with two
from the documents which have already been quoted from Brunetti,
relating to the dispute between the bishops of Siena and Arezzo. In
the first of these[25] we see that in the year 715, the king's
_majordomus_ Ambrosius interferes "in Curte a Domini Regis" at Siena,
in opposition to the local bishop and gastald; and in the second[26]
we find the royal notary Gunthram forbidding a fresh examination of
witnesses "in Curte Regia Senensis." In a document of the next
year[27]--716--we find "Ebugansus, Notarius regiae Curtis," taking
part in the procedure in a case between the bishops of Pistoia and
Lucca; and a little later, in the year 756, is mention of an exchange
of property between "civitis regia lucencis" and the church situated
in that city.[28] In the "Opusculum de Fundat. Monast. Nonantulae,"
published by Muratori,[29] we find a donation by King Aistulf to that
monastery: "prope castellum Aginulfi, quod pertinet de curte nostra
lucense, et duas casas masaritias de ipsa curte"; and "granum ilium,
quod annue colligitur de portatico, in Curte nostra, quae sita est in
Civitate Nova."[30] In Carlovingian times Charles the Bald, in the
year 875, in the "Chronica Farfense,"[31] appears as saying, "in Curte
nostra infra Castrum Viterbense": elsewhere "curtis regie Viturbensis"
is spoken of[32]: and later, in 899, Berenger gives to the bishop of
Florence "terram ... pertinentem de curte Regis istae Florentiae"[33]:
and finally, not to multiply examples, I will mention a privilege of
Karloman's, published by Ughelli[34], by which he gives to the bishop
of Parma certain regalia: "id est curtem regiam extructam infra
civitatem Parmam cum omne officio suo," etc. From even these few
instances we can see the connection between the _Curtis Regia_ and the
city which gave its name to the _civitas_, a connection the importance
of which we must not fail to appreciate, in consideration of the great
influence which it exercised in the future development of the
municipal unit from a beginning so insignificant.
Of some importance in connection with the early history of the cities
are the questions which arise in relation to the fiscal duties and
privileges of the _curtes regia_ and its officers. In it was centered
the fiscal administration of the kingdom; and its officers, in the
various grades from the _dux_ downward, received and were responsible
for the revenues of the state. So prominent a part belonged to this
form of the functions of the _curtes_ that it is quite common to hear
the revenues themselves, by a transposition of terms, called by that
name, or by that of _palatium_, a word sometimes found even for the
_curtes regia_ in their proper general sense; but this, from what I
have been able to gather concerning its legitimate use, should
properly be applied only to the residence, or by conversion the
revenues of the king himself[35]. What is of interest to us in this
matter is the fact that the _curtis regia_ fell heir to the _publicum_
or communal property of the old Roman _curia_, when these were
overthrown by the Lombard conquest.
In considering this phase of civil administration under the Lombard
system, we are again brought face to face with the old question of the
survival or non-survival of corporate existence among the cities. For
if it could be proved that the municipality in its corporate capacity
retained the communal property and administered it, there would appear
to be good grounds for the assertion of the continuance of some form
of quasi-independent municipal government; but if, on the other hand,
it were found that the property of the municipality passed to the new
head of local administration or to the central power, it would be
evident that the continuance of the municipal system as such was a
logical impossibility; for, deprived at once of its property and of
its revenues, it would have had no vitality to keep it from a speedy
end.
In investigating a question of this nature from the sources at our
disposal in a period of history so obscure, we cannot expect to find
any definite statements sufficiently precise to set at rest at once
all opposition and discussion; but after considering the character of
the people we are investigating and studying their institutions, and
after a careful examination of the laws and records which form the
sources of our information, we are, I think, in a position to be able
to give a sufficiently decided opinion as to whether a particular set
of facts or conditions could possibly have existed in a state of
development and in a society of a given character. Thus it is in
regard to the matter in hand. From the numberless cases in which the
_publicum_ is mentioned in the documents from which we draw our
materials, it seems to me possible for a critical examiner to come to
but one conclusion, if, as is quite essential, he take into
consideration the unmistakable spirit of these writings, and if he
give a legitimate interpretation to the various terms employed. To
cite in direct proof any individual instance is, perhaps, impossible;
but indirect evidence is forthcoming in abundance, and of a character
to be, to me at least, entirely conclusive. The conclusion reached is,
then, that the king and the dukes were the successors of the old
_curia_ in the possession and the administration of all properties and
revenues, taxes and fines formerly belonging to the organized
corporations of the Roman municipalities, and that the _curtes regiae_
were the channel through which these were collected, divided and
expended.
The grounds on which this assertion is based are the continual
recurrence of examples of functions of a fiscal character being
exercised by the head of the _civitas_ and his officers, and by them
alone; and it appears to me that it could only be by a complete
misunderstanding of the spirit of the early writings, and by a
comprehensive misapplication of the terms used in them, that these
functions could be referred to any other power. These functions of the
administration may be grouped under three main heads, viz: 1. Fines
and forfeitures, which, of course, played a very prominent part under
the Teutonic system of composition for offenses of a criminal nature;
2. Taxes and privileges, by which is meant feudal rights, dues, etc.;
and 3. Buildings and lands belonging to the crown or to the head of
the _civitas_ as a public officer.
Of the fines and forfeitures paid into the _publicum_, we find that a
part went to the royal treasury and a part to the _judex_, and in some
cases to the informer or the prosecuting officer; and at different
times we find these proportionate amounts definitely defined--as, for
instance, in the time of Charlemagne two parts went to the king and
one part to the count who acted as _judex_;[36] this we know from two
of the Lombard laws of that emperor.[37] In one of these,[38] speaking
of those who evaded military service, he says: "Heribannum comes
exactare non praesumat: nisi Missus noster prius Heribannum ad partem
nostram recipiat, et ei," the Count, "suam tertiam partem exinde per
jussionem nostram donet."[39] We even find evidence of quite a large
amount of liberty used by the _duces_ in the ultimate disposal of
property coming under their jurisdiction by forfeiture, the more
powerful making use of it precisely as if it were private property.
For example, in the Chronica Farfensis[40] appears a case judged by
Hildeprandus, _dux_ of Spoleto, in the year 787. A certain nun named
Alerona, for having married a man named Rabennonus, "secundum legem
omnis substantia ipsius ad Publicum devoluta est"; a little later
Rabennonus, for having killed a man, "medietas omnis illius
substantiae ad Publicum devoluta est." In consequence, in poetic
justice and for the good of his soul and the king's, Hildeprandus
quite arbitrarily presents "omnem praedictam illorum substantiam,
qualiter secundum legem juste et rationabiliter, ad Publicum devoluta
est," to the Monastery of Farfa "pro mercede Domnorum nostrorum Regum
et nostra." Here, as in many other cases, we see the _dux_ making
gifts of property belonging clearly to the _publicum_, to persons
favored by him and for his own benefit. Such a condition of affairs
would certainly never have existed had public property been
administered by authority other than that of the _dux_.
With regard to the revenues falling under the second of the rough
divisions we have indicated--taxes and privileges--it is easier to see
why differences of opinion should have arisen; for here, especially in
matters relating to the collecting of taxes and dues, we are
confronted with the names of a large number of lesser officials and
subordinates of the _judex_, some of which are undoubtedly taken from
the like officers existing in the old Roman curial system. But this
survival of names, and in some instances of offices, need cause us no
alarm, for it coincides exactly with the theory presented, namely, a
continuance of many of the old _forms_ of administration controlled by
an entirely new _principle_ of government. There are certain minor
functions necessary for the support of the state which must be carried
on in much the same manner, whatever be the character of the governing
power--certain subordinate offices whose duties must be performed
under a republic or under a despotism. Taxes may be collected by
widely differing methods under the two systems, but there must always
be the tax collector and the tax assessor. We can, however, see at a
glance the weakness of any argument which contends that because the
name and even the general duties of the tax gatherer were the same in
each case, that the whole system of administration of the taxes or of
the community were necessarily identical or even closely allied in
character.
It is here we see the weakness of those writers who insist upon the
continuance of the Roman _curia_ in the municipalities of the Lombard
kingdom. They seize upon a few names, relics of Roman rule, and from
them generalize a complete system of taxation and administration. That
the existence of any such system is alike contrary to fact and to the
whole nature of the Lombard people, any critical and impartial study
of the sources of government revenues at this time will make clear. It
would be out of place to burden a paper of this character with the
results of a minute investigation into the fiscal relations of the
rulers and the people when this has no immediate connection with the
development of municipal government; but I will state that a careful
examination of all available sources, including documents and
statutory enactments, both public and private, reveals, to my mind, a
theory and a system of raising the revenues of the state closely
allied in both principle and detail to feudal forms and feudal ideas,
and having little in common save the names of a few of its officers,
with the ancient methods of collecting the taxes peculiar to the Roman
municipal constitution.[41]
In general terms, the collectors of the revenues were called
_telonarii_, or _actores, exactores_ or _actionarii_, etc., and the
taxes they collected were the usual feudal dues, fines, forfeitures,
compositions for service, etc. The nomenclature of these various
officers and of the different duties they had to levy, varying as it
did with regard to locality, and more especially with regard to
time--the Franks introducing an entirely new set of names for
institutions often identical in character to those displaced--presents
an amount of confusion which, fortunately, it is not necessary for us
to endeavor to penetrate; but, having stated the foregoing general
conviction with regard to the fiscal system, we will now pass on to a
consideration of some of the lesser offices held within each _civitas_
by the deputies and subordinates of the _dux_. These, of course, were
connected, in degrees more or less close, with the different _curtes
regiae_, and with the _placita_ held in the various _civitates_
commonly about three times in the year. Some of the officers, like the
_vice-comes_ found to have existed in many localities, are simply
deputies of the _dux_, or representatives of his person, and hold
their office simply by virtue of his will and under a somewhat
arbitrary tenure; others, like the gastald, the _sculdahis_, and later
the _scabinus_, represent offices which formed an integral part of the
constitution of the government, and appointment to which, whether made
by the _dux_ or by the central power, involved a necessary duty of a
determinate character. An accurate determination of the relative
positions of these various minor officials, of the extent of their
jurisdiction and of its limitations, presents one of the most
difficult problems which the student of these dark ages of history is
called upon to solve. The peculiar character of the sources from which
we have to derive all our information makes it quite possible for all
writers on the subject to disagree with regard to details, and leaves
a wide margin for discussion even on the important characteristics of
the various offices. Avoiding as much as possible the points of
controversy, I will endeavor to give the general features of the more
important of these offices, the conclusions given in each case
resulting from an examination of the different theories held and of
the sources on which these are based.
The officer who seems to have ranked next in importance to the _dux_
within the limits of the _civitas_ is the gastald, who goes
indifferently by the name of _gastaldus, castaldius_, or _gastaldio_.
His powers were of a judicial character, and he shared with the _dux_
the title of _judex_; but whether he enjoyed the full prerogative of a
_judex civitatis_, or whether his judicial functions were of a more
limited character and referred exclusively to matters of a fiscal
nature belonging to the _curtis regia_ or the _camera_ of the king, is
a question to which the evidence to be gathered from the law codes
gives no decided answer.[42] It seems probable, however, from the
importance seemingly attached to the holders of this title in the many
cases in which they are mentioned in the old laws and documents, that
their jurisdiction was of a broader character than would be implied by
a restriction to purely fiscal functions; in fact, that it approached
more nearly to the power of the _dux_ and _judex civitatis_, though
being in some way of less extent or possibly supplementary to it.
Perhaps the distinction would come out more clearly if we said that
the office was characterized by its relations to the fiscal functions
of the state, but that its duties and privileges appear not to have
been restricted to affairs of that nature. It is certainly true that
very many instances occur in which the duke and the gastald are
alluded to, whether in laws or in contracts, in precisely the same
terms and in positions which would seem to indicate an almost perfect
equality of dignity. As, for example, in a meeting between Liutprand
and Pope Zacharias, described by Anastasius Bibliotecharius,[43] where
dukes and gastalds are together reckoned among the _judices_: here the
king goes to meet the pope "cum suis judicibus," and gives him as an
escort "Agripandum ducem Clusinum, nepotem suum, seu Tacipertum
Castaldium et Remingum, Castaldum Tuscanensem." In spite of this
apparent equality, however, it seems to me nearer the truth to
consider the position of the gastald as an inferior one to that of the
_dux_, especially in Lombard times, before that official was replaced
by the _comes_ of the Carlovingians.
The important point which it is necessary to emphasize in this
connection is the fact that the gastald held his tenure, not from the
_dux_ as his subordinate, but from the king in person, and for this
reason can more fitly be compared with the later count than with the
_dux_ of the Lombards. Consequently it is in the matter of tenure that
I think is to be found the difference in power between the two
officers. In addition to his official authority, the _dux_ was
possessed of a power and an influence entirely his own, derived quite
as much from the number of his vassals and his position in the
_civitas_ as from the grant he received from the king. At home he was
a powerful lord, and though he, of course, owed fealty and service to
the king, he was by no means a king's servant, like his successor the
Carlovingian count. The gastald, on the other hand, was eminently a
servant of the central power; and whether or not he was engaged
exclusively in looking after the fiscal interests of the masters who
employed him, he had no power and no influence except such as he
derived from the source of his authority. He was a king's minister and
nothing more, and we can easily appreciate that the amount of power he
was enabled to exercise could never exceed the amount of influence in
local affairs possessed at any particular time by the central
government, whose representative he was.
But the very nature of the source from which the power of his office
is derived is what connects it vitally with the subject of our
enquiry. We have seen the _dux_ as head--in the earliest times almost
independent head--of the whole _civitas_, including rural and city
jurisdiction. We have seen him as an official, depending from the
king, it is true, and holding the king's _placita_ and executing the
law, but also holding _placita_ of his own; appearing as a powerful
local lord, and exercising almost arbitrary power in the regulation
and the distribution of the public property of the commonwealth over
which he ruled; in fact, a descendant of the old _duces_ of the
Lombard barbarian host, who, perhaps, even antedating the royal
office, held their power and their position as princes and chosen
leaders of the people, rather than as appointees or dependents of any
higher authority. In the gastald, on the other hand, we have an
official of an entirely different type--one not belonging to a
powerful class of lords or leaders which traces its origin to the
spontaneous choice of the people or army, but one who gets his
appointment at the will and in the interests of the central
government, and is commissioned to exercise certain functions of the
administration as an assistant to, perhaps even as a check on, the
power of the local head.
Such an official was naturally located at the place where the district
courts held their sessions, and where the fiscal duties which he
especially had in charge were most easily executed. As we have seen in
the case of the _dux_, convenience points to the _urbs_ of each
_civitas_ as a natural centre, and consequently here again we find the
office of gastald as another agent in bringing the municipal division
into prominence; but doing this, we must always remember, simply from
the fact of convenience or fitness, and not in any sense as a matter
of constitutional necessity. Like that of the _dux_, the jurisdiction
of the gastald was exercised over the remotest farm of the _civitas_
as much as over the palace in the city: _de jure_, the city gained
nothing by the circumstance of its being the centre of the
administration of any office; but, _de facto_, the holding of such a
position can easily be seen to have been an important element in its
growth and development.
This fact is even of greater importance in the case of the gastald
than in that of the _dux_, because, on account of the elimination of
the character of local ruler, which was indissolubly attached to the
office of the latter, the gastald brought local affairs into direct
relation with other parts of the social system of the kingdom,
especially connecting them with the king or centre of the whole. Such
a connection, as may be inferred from what has just been said, while
legally true, of course, of the whole _civitas_, had practically the
effect of bringing the cities chiefly into relation with the rest of
the Lombard constitution; and, consequently, some writers point to the
office of gastald as the connecting link between municipal life and
the new state life of the Teutonic system. This statement seems to me
to be true except in so far as it makes the gastald the only
connecting link. For we have already seen the _dux_ holding the same
relation, only in a less direct manner, owing to the intrusion of
other interests belonging to his position; and we shall shortly have
to consider the _scabinus_, another local officer, who, under
Carlovingian rule, accomplished even more in this direction than the
gastald. I do not wish to fail in appreciation of the important
influence of this office in the development of the slowly growing idea
of individuality in the cities of Lombardy, only to point out that it
was not the only "connecting link" between the municipal units and the
state as a whole.