To these the _judex_, though the most prominent, cannot be said to

form an exception. That he was the head of the district judicial

system has in part been already shown, and will come out more clearly

when we come to define the powers of some of his subordinates. His

leadership in war we have seen to be but the natural continuance of

his original office; and that as _dux_ he was to be ranked among the

first nobles of the land, the "optimates," the "viri illustres," we

can see from the following passage in the laws of Liutprand, when in

the prologue to the third book already quoted, he gives forth the

edict with the judges as "una cum illustribus viris optimatibus meis

ex Neustriae et Austriae et Tusciae partibus vel universis nobilibus

Langobardis."[23] Although the position of the _duces_ as nobles of

the land never altered, their power relative to that of the king

suffered many modifications. The ducal power--"principes" of

Tacitus--preceding among the Lombards that of the king, we see the

dukes exercising much greater control in the earlier stages of the

monarchy: even, on the death of Clefis--576--actually establishing a

sort of aristocratic republic, under the leadership of thirty dukes,

which lasted for ten years; after which time, on the event of a

dangerous war with the Greeks and the Franks, Authari, the son of

Clefis, gained the throne by election; the dukes giving up to him,

says Paulus Diaconus,[24] the half of their estates for the support of

his dignity, retaining, however, the rest, not as servants of the

king, but as "principes" of the people, an important distinction.

Agiluf--591 to 615--originally duke of Turin, met with much opposition

from the power of the dukes; but when we come to the time of

Rhotari--636 to 652--we find their power already declining, and in the

eighth century, as for example under Liutprand--712 to 736--the laws

show them reduced to the position of the other _judices_, but still

representing a high aristocracy whose consent was, as we have seen,

necessary to all acts of the king.

The most important of the functions of the _dux_ as _judex_ was

holding the _Curtis Regia_ or _Curtis Ducalis_, in the largest city or

"urbs" of every _civitas_. Here, in conjunction with his subordinates,

he heard all cases which did not go up to the king for judgment, and

here was centered the fiscal administration of the _civitas_. To

describe in detail the composition of these _curtes_, their

jurisdiction and methods of procedure, would require a whole chapter

of no mean proportions, and however interesting in itself, would be

out of place in the present investigation. All that it is needful for

us to consider is the relation of these _curtes_ to the municipalities

in which they were located. Of their location within the city walls

the proofs to be found in numbers of the old documents are to me

conclusive. I will give a few examples, however, commencing with two

from the documents which have already been quoted from Brunetti,

relating to the dispute between the bishops of Siena and Arezzo. In

the first of these[25] we see that in the year 715, the king's

_majordomus_ Ambrosius interferes "in Curte a Domini Regis" at Siena,

in opposition to the local bishop and gastald; and in the second[26]

we find the royal notary Gunthram forbidding a fresh examination of

witnesses "in Curte Regia Senensis." In a document of the next

year[27]--716--we find "Ebugansus, Notarius regiae Curtis," taking

part in the procedure in a case between the bishops of Pistoia and

Lucca; and a little later, in the year 756, is mention of an exchange

of property between "civitis regia lucencis" and the church situated

in that city.[28] In the "Opusculum de Fundat. Monast. Nonantulae,"

published by Muratori,[29] we find a donation by King Aistulf to that

monastery: "prope castellum Aginulfi, quod pertinet de curte nostra

lucense, et duas casas masaritias de ipsa curte"; and "granum ilium,

quod annue colligitur de portatico, in Curte nostra, quae sita est in

Civitate Nova."[30] In Carlovingian times Charles the Bald, in the

year 875, in the "Chronica Farfense,"[31] appears as saying, "in Curte

nostra infra Castrum Viterbense": elsewhere "curtis regie Viturbensis"

is spoken of[32]: and later, in 899, Berenger gives to the bishop of

Florence "terram ... pertinentem de curte Regis istae Florentiae"[33]:

and finally, not to multiply examples, I will mention a privilege of

Karloman's, published by Ughelli[34], by which he gives to the bishop

of Parma certain regalia: "id est curtem regiam extructam infra

civitatem Parmam cum omne officio suo," etc. From even these few

instances we can see the connection between the _Curtis Regia_ and the

city which gave its name to the _civitas_, a connection the importance

of which we must not fail to appreciate, in consideration of the great

influence which it exercised in the future development of the

municipal unit from a beginning so insignificant.

Of some importance in connection with the early history of the cities

are the questions which arise in relation to the fiscal duties and

privileges of the _curtes regia_ and its officers. In it was centered

the fiscal administration of the kingdom; and its officers, in the

various grades from the _dux_ downward, received and were responsible

for the revenues of the state. So prominent a part belonged to this

form of the functions of the _curtes_ that it is quite common to hear

the revenues themselves, by a transposition of terms, called by that

name, or by that of _palatium_, a word sometimes found even for the

_curtes regia_ in their proper general sense; but this, from what I

have been able to gather concerning its legitimate use, should

properly be applied only to the residence, or by conversion the

revenues of the king himself[35]. What is of interest to us in this

matter is the fact that the _curtis regia_ fell heir to the _publicum_

or communal property of the old Roman _curia_, when these were

overthrown by the Lombard conquest.

In considering this phase of civil administration under the Lombard

system, we are again brought face to face with the old question of the

survival or non-survival of corporate existence among the cities. For

if it could be proved that the municipality in its corporate capacity

retained the communal property and administered it, there would appear

to be good grounds for the assertion of the continuance of some form

of quasi-independent municipal government; but if, on the other hand,

it were found that the property of the municipality passed to the new

head of local administration or to the central power, it would be

evident that the continuance of the municipal system as such was a

logical impossibility; for, deprived at once of its property and of

its revenues, it would have had no vitality to keep it from a speedy

end.

In investigating a question of this nature from the sources at our

disposal in a period of history so obscure, we cannot expect to find

any definite statements sufficiently precise to set at rest at once

all opposition and discussion; but after considering the character of

the people we are investigating and studying their institutions, and

after a careful examination of the laws and records which form the

sources of our information, we are, I think, in a position to be able

to give a sufficiently decided opinion as to whether a particular set

of facts or conditions could possibly have existed in a state of

development and in a society of a given character. Thus it is in

regard to the matter in hand. From the numberless cases in which the

_publicum_ is mentioned in the documents from which we draw our

materials, it seems to me possible for a critical examiner to come to

but one conclusion, if, as is quite essential, he take into

consideration the unmistakable spirit of these writings, and if he

give a legitimate interpretation to the various terms employed. To

cite in direct proof any individual instance is, perhaps, impossible;

but indirect evidence is forthcoming in abundance, and of a character

to be, to me at least, entirely conclusive. The conclusion reached is,

then, that the king and the dukes were the successors of the old

_curia_ in the possession and the administration of all properties and

revenues, taxes and fines formerly belonging to the organized

corporations of the Roman municipalities, and that the _curtes regiae_

were the channel through which these were collected, divided and

expended.

The grounds on which this assertion is based are the continual

recurrence of examples of functions of a fiscal character being

exercised by the head of the _civitas_ and his officers, and by them

alone; and it appears to me that it could only be by a complete

misunderstanding of the spirit of the early writings, and by a

comprehensive misapplication of the terms used in them, that these

functions could be referred to any other power. These functions of the

administration may be grouped under three main heads, viz: 1. Fines

and forfeitures, which, of course, played a very prominent part under

the Teutonic system of composition for offenses of a criminal nature;

2. Taxes and privileges, by which is meant feudal rights, dues, etc.;

and 3. Buildings and lands belonging to the crown or to the head of

the _civitas_ as a public officer.

Of the fines and forfeitures paid into the _publicum_, we find that a

part went to the royal treasury and a part to the _judex_, and in some

cases to the informer or the prosecuting officer; and at different

times we find these proportionate amounts definitely defined--as, for

instance, in the time of Charlemagne two parts went to the king and

one part to the count who acted as _judex_;[36] this we know from two

of the Lombard laws of that emperor.[37] In one of these,[38] speaking

of those who evaded military service, he says: "Heribannum comes

exactare non praesumat: nisi Missus noster prius Heribannum ad partem

nostram recipiat, et ei," the Count, "suam tertiam partem exinde per

jussionem nostram donet."[39] We even find evidence of quite a large

amount of liberty used by the _duces_ in the ultimate disposal of

property coming under their jurisdiction by forfeiture, the more

powerful making use of it precisely as if it were private property.

For example, in the Chronica Farfensis[40] appears a case judged by

Hildeprandus, _dux_ of Spoleto, in the year 787. A certain nun named

Alerona, for having married a man named Rabennonus, "secundum legem

omnis substantia ipsius ad Publicum devoluta est"; a little later

Rabennonus, for having killed a man, "medietas omnis illius

substantiae ad Publicum devoluta est." In consequence, in poetic

justice and for the good of his soul and the king's, Hildeprandus

quite arbitrarily presents "omnem praedictam illorum substantiam,

qualiter secundum legem juste et rationabiliter, ad Publicum devoluta

est," to the Monastery of Farfa "pro mercede Domnorum nostrorum Regum

et nostra." Here, as in many other cases, we see the _dux_ making

gifts of property belonging clearly to the _publicum_, to persons

favored by him and for his own benefit. Such a condition of affairs

would certainly never have existed had public property been

administered by authority other than that of the _dux_.

With regard to the revenues falling under the second of the rough

divisions we have indicated--taxes and privileges--it is easier to see

why differences of opinion should have arisen; for here, especially in

matters relating to the collecting of taxes and dues, we are

confronted with the names of a large number of lesser officials and

subordinates of the _judex_, some of which are undoubtedly taken from

the like officers existing in the old Roman curial system. But this

survival of names, and in some instances of offices, need cause us no

alarm, for it coincides exactly with the theory presented, namely, a

continuance of many of the old _forms_ of administration controlled by

an entirely new _principle_ of government. There are certain minor

functions necessary for the support of the state which must be carried

on in much the same manner, whatever be the character of the governing

power--certain subordinate offices whose duties must be performed

under a republic or under a despotism. Taxes may be collected by

widely differing methods under the two systems, but there must always

be the tax collector and the tax assessor. We can, however, see at a

glance the weakness of any argument which contends that because the

name and even the general duties of the tax gatherer were the same in

each case, that the whole system of administration of the taxes or of

the community were necessarily identical or even closely allied in

character.

It is here we see the weakness of those writers who insist upon the

continuance of the Roman _curia_ in the municipalities of the Lombard

kingdom. They seize upon a few names, relics of Roman rule, and from

them generalize a complete system of taxation and administration. That

the existence of any such system is alike contrary to fact and to the

whole nature of the Lombard people, any critical and impartial study

of the sources of government revenues at this time will make clear. It

would be out of place to burden a paper of this character with the

results of a minute investigation into the fiscal relations of the

rulers and the people when this has no immediate connection with the

development of municipal government; but I will state that a careful

examination of all available sources, including documents and

statutory enactments, both public and private, reveals, to my mind, a

theory and a system of raising the revenues of the state closely

allied in both principle and detail to feudal forms and feudal ideas,

and having little in common save the names of a few of its officers,

with the ancient methods of collecting the taxes peculiar to the Roman

municipal constitution.[41]

In general terms, the collectors of the revenues were called

_telonarii_, or _actores, exactores_ or _actionarii_, etc., and the

taxes they collected were the usual feudal dues, fines, forfeitures,

compositions for service, etc. The nomenclature of these various

officers and of the different duties they had to levy, varying as it

did with regard to locality, and more especially with regard to

time--the Franks introducing an entirely new set of names for

institutions often identical in character to those displaced--presents

an amount of confusion which, fortunately, it is not necessary for us

to endeavor to penetrate; but, having stated the foregoing general

conviction with regard to the fiscal system, we will now pass on to a

consideration of some of the lesser offices held within each _civitas_

by the deputies and subordinates of the _dux_. These, of course, were

connected, in degrees more or less close, with the different _curtes

regiae_, and with the _placita_ held in the various _civitates_

commonly about three times in the year. Some of the officers, like the

_vice-comes_ found to have existed in many localities, are simply

deputies of the _dux_, or representatives of his person, and hold

their office simply by virtue of his will and under a somewhat

arbitrary tenure; others, like the gastald, the _sculdahis_, and later

the _scabinus_, represent offices which formed an integral part of the

constitution of the government, and appointment to which, whether made

by the _dux_ or by the central power, involved a necessary duty of a

determinate character. An accurate determination of the relative

positions of these various minor officials, of the extent of their

jurisdiction and of its limitations, presents one of the most

difficult problems which the student of these dark ages of history is

called upon to solve. The peculiar character of the sources from which

we have to derive all our information makes it quite possible for all

writers on the subject to disagree with regard to details, and leaves

a wide margin for discussion even on the important characteristics of

the various offices. Avoiding as much as possible the points of

controversy, I will endeavor to give the general features of the more

important of these offices, the conclusions given in each case

resulting from an examination of the different theories held and of

the sources on which these are based.

The officer who seems to have ranked next in importance to the _dux_

within the limits of the _civitas_ is the gastald, who goes

indifferently by the name of _gastaldus, castaldius_, or _gastaldio_.

His powers were of a judicial character, and he shared with the _dux_

the title of _judex_; but whether he enjoyed the full prerogative of a

_judex civitatis_, or whether his judicial functions were of a more

limited character and referred exclusively to matters of a fiscal

nature belonging to the _curtis regia_ or the _camera_ of the king, is

a question to which the evidence to be gathered from the law codes

gives no decided answer.[42] It seems probable, however, from the

importance seemingly attached to the holders of this title in the many

cases in which they are mentioned in the old laws and documents, that

their jurisdiction was of a broader character than would be implied by

a restriction to purely fiscal functions; in fact, that it approached

more nearly to the power of the _dux_ and _judex civitatis_, though

being in some way of less extent or possibly supplementary to it.

Perhaps the distinction would come out more clearly if we said that

the office was characterized by its relations to the fiscal functions

of the state, but that its duties and privileges appear not to have

been restricted to affairs of that nature. It is certainly true that

very many instances occur in which the duke and the gastald are

alluded to, whether in laws or in contracts, in precisely the same

terms and in positions which would seem to indicate an almost perfect

equality of dignity. As, for example, in a meeting between Liutprand

and Pope Zacharias, described by Anastasius Bibliotecharius,[43] where

dukes and gastalds are together reckoned among the _judices_: here the

king goes to meet the pope "cum suis judicibus," and gives him as an

escort "Agripandum ducem Clusinum, nepotem suum, seu Tacipertum

Castaldium et Remingum, Castaldum Tuscanensem." In spite of this

apparent equality, however, it seems to me nearer the truth to

consider the position of the gastald as an inferior one to that of the

_dux_, especially in Lombard times, before that official was replaced

by the _comes_ of the Carlovingians.

The important point which it is necessary to emphasize in this

connection is the fact that the gastald held his tenure, not from the

_dux_ as his subordinate, but from the king in person, and for this

reason can more fitly be compared with the later count than with the

_dux_ of the Lombards. Consequently it is in the matter of tenure that

I think is to be found the difference in power between the two

officers. In addition to his official authority, the _dux_ was

possessed of a power and an influence entirely his own, derived quite

as much from the number of his vassals and his position in the

_civitas_ as from the grant he received from the king. At home he was

a powerful lord, and though he, of course, owed fealty and service to

the king, he was by no means a king's servant, like his successor the

Carlovingian count. The gastald, on the other hand, was eminently a

servant of the central power; and whether or not he was engaged

exclusively in looking after the fiscal interests of the masters who

employed him, he had no power and no influence except such as he

derived from the source of his authority. He was a king's minister and

nothing more, and we can easily appreciate that the amount of power he

was enabled to exercise could never exceed the amount of influence in

local affairs possessed at any particular time by the central

government, whose representative he was.

But the very nature of the source from which the power of his office

is derived is what connects it vitally with the subject of our

enquiry. We have seen the _dux_ as head--in the earliest times almost

independent head--of the whole _civitas_, including rural and city

jurisdiction. We have seen him as an official, depending from the

king, it is true, and holding the king's _placita_ and executing the

law, but also holding _placita_ of his own; appearing as a powerful

local lord, and exercising almost arbitrary power in the regulation

and the distribution of the public property of the commonwealth over

which he ruled; in fact, a descendant of the old _duces_ of the

Lombard barbarian host, who, perhaps, even antedating the royal

office, held their power and their position as princes and chosen

leaders of the people, rather than as appointees or dependents of any

higher authority. In the gastald, on the other hand, we have an

official of an entirely different type--one not belonging to a

powerful class of lords or leaders which traces its origin to the

spontaneous choice of the people or army, but one who gets his

appointment at the will and in the interests of the central

government, and is commissioned to exercise certain functions of the

administration as an assistant to, perhaps even as a check on, the

power of the local head.

Such an official was naturally located at the place where the district

courts held their sessions, and where the fiscal duties which he

especially had in charge were most easily executed. As we have seen in

the case of the _dux_, convenience points to the _urbs_ of each

_civitas_ as a natural centre, and consequently here again we find the

office of gastald as another agent in bringing the municipal division

into prominence; but doing this, we must always remember, simply from

the fact of convenience or fitness, and not in any sense as a matter

of constitutional necessity. Like that of the _dux_, the jurisdiction

of the gastald was exercised over the remotest farm of the _civitas_

as much as over the palace in the city: _de jure_, the city gained

nothing by the circumstance of its being the centre of the

administration of any office; but, _de facto_, the holding of such a

position can easily be seen to have been an important element in its

growth and development.

This fact is even of greater importance in the case of the gastald

than in that of the _dux_, because, on account of the elimination of

the character of local ruler, which was indissolubly attached to the

office of the latter, the gastald brought local affairs into direct

relation with other parts of the social system of the kingdom,

especially connecting them with the king or centre of the whole. Such

a connection, as may be inferred from what has just been said, while

legally true, of course, of the whole _civitas_, had practically the

effect of bringing the cities chiefly into relation with the rest of

the Lombard constitution; and, consequently, some writers point to the

office of gastald as the connecting link between municipal life and

the new state life of the Teutonic system. This statement seems to me

to be true except in so far as it makes the gastald the only

connecting link. For we have already seen the _dux_ holding the same

relation, only in a less direct manner, owing to the intrusion of

other interests belonging to his position; and we shall shortly have

to consider the _scabinus_, another local officer, who, under

Carlovingian rule, accomplished even more in this direction than the

gastald. I do not wish to fail in appreciation of the important

influence of this office in the development of the slowly growing idea

of individuality in the cities of Lombardy, only to point out that it

was not the only "connecting link" between the municipal units and the

state as a whole.

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 3 / 6 段