officers, I must not omit to mention the fact that the gastald had
also certain military functions attached to his office. When called
upon by the king he took command in the army, together with the minor
officers who were under him in his jurisdiction, such as the
_sculdahis, saltarius_,[44] etc. We have confirmation of this in the
constitution "promotionis exercitus" of Lewis II.,[45] which says "ut
nullum ab expeditione aut Comes aut Gastald, vel Ministri eorum
excusatum habeant"; and in the life of Gregory II., Anastasius
Bibliotecharius[46] tells that at the overthrow of the _castrum_ of
Cumae with the help of that pope, "Langobardos pene trecentos cum
eorum Gastaldione interfecerunt." In military affairs the command held
by the gastald seems to have been lower than that of the _dux_, the
leader of all the troops furnished by the _civitas_. A right of appeal
to the _dux_ existed for the _exercitalis_ who was oppressed by the
gastald, as shown by the twenty-fourth law of Rhotaris,[47] which
says: "Si Gastaldius exercitalem suum contra rationem molestaverit,
_Dux_ eum soletur." In a case of oppression by the _dux_, the gastald,
on the other hand, could bring the matter before the king.
Before considering the changes introduced by the Carlovingian rule,
let us cast a hasty glance at a few of the minor officers who acted as
subordinates of the _judex_ in administering the affairs of the
_civitas_. As their relations to the urban portion of the Lombard
kingdom, which is the special object of our study, were either slight
in themselves or else so closely connected with those of their
superiors as not to merit any particular description, I will merely
mention the names of a few of them and indicate their duties. The
officer who came next in rank to the _judex_, and who, in a
subordinate capacity, assisted him especially in administering the
judicial affairs of the _civitas_, was in Lombard times called the
_sculdahis_, and in Carlovingian times the _centenarius_. Under him
were the _saltarius_ and the _decanus_. The _sculdahis_ acted as a
local officer under the _judex_, having limited judicial, police and
military powers. His jurisdiction was confined to the small fortified
towns and villages of the _civitas_, where he administered justice and
collected fines, forfeitures, etc., in much the same manner as did the
_judex_ in the largest town of the _civitas_; his judgments, however,
were not final, but always subject to appeal to a higher authority:
"Si vero talis causa fuerit, quod ipse Sculdahis minime deliberare
possit, dirigat ambas partes ad judicem suum."[48] There were several
_sculdahis_ in one _judiciaria_, and cases were often tried before
more than one,[49] though each of the smaller local units seems to
have had such an officer. Paulus Diaconus[50] speaks of "elector loci
illius, quem sculdahis lingua propria dicunt, vir nobilis," etc.
These rural divisions seem sometimes to have been called _sculdascia_,
for we have a diploma of Berengar I., of the year 918, given to the
monastery of Sta. Maria dell' Organo,[51] where is mentioned "pratum
juris imperii nostri pertinens de Comitatu Veronensi, de Sculdascia
videlicet, que Fluvium dicitur"; and in a document published by
Ughelli,[52] in speaking of the bishops of Belluno, "Sculdascia
Belluni" is used. In Frankish times the _centenarius_ held the same
position as the _sculdahis_ of the Lombards: his jurisdiction was
similarly limited to minor offences; all cases involving capital
punishment, loss of liberty, or delivering of _res mancipii_, being
handed over to the count's court according to the legislation of
Charlemagne.[53] The _decani_ and _saltarii_ were subordinates of the
_centenarii_ and _sculdahis_. They both presided over smaller local
divisions than the _sculdascia_, and acted as deputies. In the laws of
Liutprand,[54] speaking of a runaway slave, we are told that "si in
alia judiciaria inventus fuerit, tunc decanus aut saltarius, qui in
loco ordinatus fuerit, comprehendere eum debeat et ad sculdahis suum
perducat, et ipse sculdahis judici suo consignet." The _saltarius_
seems to have been originally a sort of guardian of forests, "custos
saltuum"[55] or "silvanus";[56] and the name of the _decanus_, like
the Frankish _centenarius_, is a survival of the old decimal division
of the army and people. These minor officers, as well as other
subalterns of the _judex_, are often met with under the common name of
_actionarii_, which includes also the different sorts of _exactores_,
_adores_, _advocati_, and all the lesser officials of the _fiscus_.
In the course of this investigation I have already referred to, and in
a certain measure characterized, the changes introduced into the
Lombard system of government consequent on the kingdom being absorbed
into the great empire of Charlemagne. I have said that, owing to the
similarity of institutions between the Franks and the Lombards, the
changes made consisted rather in differences in the manner of
enforcing the control of the central power than in any alteration in
the institutional life of the people, but that there were certain
exceptions to this general rule, which, in their mode of operation,
though not in the intention of their author, materially affected,
indeed greatly accelerated, the growth of individual life among the
cities. We must now consider the nature of these exceptions.
Under the Lombard system we have seen the administrative unit of the
state to be the _civitas_, with its administrative head, the _dux_, at
different times enjoying a greater or less degree of independence from
control of the central power. We have seen the _dux_ lord as well as
judge in his own jurisdiction, and standing as the successor of the
military leader chosen by the people, instead of holding the position
of king's servant; this place being more properly filled by the
gastald, who cared for the fiscal interests of the central power,
whose appointee he was. Such a form of government, it can be readily
seen, left no room for any strong development of the principle of
centralization, and no scope for the exercise of any decided power or
even of general supervision by the central authority. The heads of the
_civitates_ were the king's _judices_, it is true, and assembled to
assist him in judgments at his general _placita_ in the March of each
year; but they bear the character also of local lords of no mean
importance, and in some cases possessed of no inconsiderable amount of
power. Such a degree of individual influence--perhaps I should
exaggerate if I called it individual independence--was, however,
little suited to the idea of a universal centralized empire, which was
the forming principle of the government of Charlemagne. While
recognizing the necessity of retaining the fundamental institution of
a division of the state into _civitates_, and of governing it by means
of the heads of these divisions, he wished to eliminate from these
officers all the characteristics of local magnates, and to reduce them
to the more easily controlled position of servants, and dependents of
the king. This object he accomplished most satisfactorily by changing
the dukes or local lords into counts or king's men, by appointing a
Count of the Palace for Italy, and by extending to that kingdom the
perfectly organized system of central control by means of the _Missi
Dominici_, with the workings of which in the other parts of his great
empire the student of history is too well acquainted to need any
description here.
The immediate changes in the life of the people consequent on the
introduction of this system were not considerable, if we except a
great improvement in public order and a marked advance in the
equitable administration of justice; but it needs no great foresight
to see that the ultimate effects on the position held by the municipal
units in the community could not fail to be important and
far-reaching. The new officer, the count, stripped of all the
importance that his predecessor, the duke, had enjoyed as lord of the
country over which he ruled, was placed in each city to govern, in the
king's name, it and its _territorium_. As long as the empire of
Charlemagne retained its integrity, and as long as the reins of
central government were held by a strong hand and the control it
exercised was felt to be positive and real, the change in the
character of the local governor was of little moment; but as soon as
the power of the central government weakened--during the inglorious
reigns of the immediate successors of the great emperor--its hold on
the administration of the local units slackened immediately; and in
proportion as the vitality of the new central control diminishes, we
see appearing the effects which must always result when the strong
hand of an active central power is removed from a system of
administration which had been based on the exercise of such a power.
These effects are the increased importance--I may now say the
increased independence--of the local units; of these local units
themselves as distinguished from the heads who rule over them.
The change had made these units more organic parts of the state than
they had ever been before: we have seen them first made prominent by
being the seats of the rulers of the _civitas_, and now we are to see
them gain a more significant advance by coming into relation with the
head of the state directly, instead of through the personal power of
their lord. For the local ruler has yielded his individual
pre-eminence to the central government; and when this fails to
maintain its authority, in any community whose inhabitants are capable
of fostering the seeds of independence once sown, it is difficult if
not impossible for a successor to repossess himself of the privileges
which have been forfeited. In any state where the seat of central
authority is distant or its power only exercised feebly and at
intervals, the local units secure much greater independence and
importance, through the very necessity of performing many functions
left unheeded by the ruler of all; and if the people are self-reliant
in character, they will in time develop a sort of self-government
which, although it would not at first think of questioning the
theoretical right and overlordship of the central power, will
eventually brook but little interference with its modes of procedure
and with its exercise of functions, which the lapse of time has
transformed from enforced duties into jealously guarded privileges.
This is the keynote of the later history of the Italian cities. This
it was, and not any real lack of patriotism, which made them choose a
German emperor instead of an Italian king. There was no room at that
time for the idea of Italian unity, as we now understand it: the
nature of the people alone would have rendered such a thing
impossible, even if we leave out of account the fact that Italy was
the meeting-ground of the two great powers of the mediaeval world, the
Pope and the Emperor. Italy then must have had two masters, or have
been the slave of one. The same spirit of civic independence which
caused the development of Ancient Greece by preventing the universal
rule of one power, caused the Italians, under different conditions, to
pit one master against another to attain the same end. Even Liutprand,
the old historian of the tenth century, recognized this. In the first
book of his "Historia" he says: "The Italians wish always to serve two
masters, in order to restrain one by means of the terror with which
the other inspires him."[57] By means of holding in their hands the
balance of power they hoped to rule their rulers; and to attain this
object was the only reason which ever prompted the cities to unite
with any degree of harmony. Local independence was what they aimed at,
and their shrewdness showed them the only possible means in that age
of securing it.
These results could hardly have been attained if society had remained
such that the prominence of the local divisions was dependent on the
prominence of the respective heads of these divisions; but the
character of their local rulers once changed, and their powers in a
great measure absorbed by the act of a strong central power, when that
power fell to pieces it was much easier for the local divisions, as
such, to increase their independence, and to utilize the advance they
had made, by means of their more direct relation to the central power,
to gain a position which they would enjoy in spite of the efforts
alike of that power and of their old rulers. Such a position would not
be reached except by means of great struggles and by passing through a
period of great disintegration and of fierce internal strife between
opposing factions, such as in the history of the Italian communes is
represented by the dark period between the fall of the last of the
Carlovingians and the election of the first German emperor as king of
Italy; but once attained, the character of the people who accomplished
it would ensure its permanence, as long as they retained those
principles of independence which had made them victorious in the
struggle. After this short discussion, in which we have traced the
ultimate effects of the action of Charlemagne in changing the dukes
into counts, let us look at another feature in the field of city
government introduced by him, the new office of the _scabinus_ or city
judge.
According to the theory of judicial procedure among the Teutonic
nations, judgment in criminal cases was given in the open court or
_placitum_, where, besides the regular judges, all or any of the
freemen within its jurisdiction were supposed to concur in the
judgment and sentence. How far this method of arriving at judicial
decisions was carried out in practice depended largely on custom and
other local influences, and consequently varied greatly in different
countries and with different nations. I do not propose to enter into
the discussion[58] of the existence of these "judicators"[59] in
Lombardy in the eighth century, but will only say that it is certain
that before the Frankish conquest there did not exist a class of men
whose business it was to assist the judge in disposing of cases. If
through ignorance of the law or for other reasons he was unable to
come to a decision, "si vero talis causa fuit, quod ipse ...
deliberare minime possit,"[60] he could call some of the freemen to
assist him: "advocis [advocet] alios ... qui sciunt judicare,"[61]
etc., but this seems, in later times at any rate, to have been a
privilege to be used at discretion, and the persons summoned were not
regularly appointed officers of the court. The Lombard codes are
silent with regard to these indicators; but Savigny,[62] in his
argument to prove their existence, claims that mention is made of them
in two decisions of Liutprand of the years 715 and 716, and brings as
additional evidence a _placitum_ of 751[63] in which Lupo, duke of
Spoleto, gives judgment "una cum judicibus nostris ... vel aliis
pluribus astantibus," etc. It is of more importance for us, however,
to determine the reasons for the introduction into Italy by
Charlemagne of the new office of the _scabinus_, than to lose
ourselves in a complicated discussion of the theoretical predecessors
of these officers.
The introduction of this new feature into city government seems to
have been the result of an attempt to correct certain abuses in the
exercise of power by the duke or head of the courts of the _civitas_.
The duke had the right, as we know, to summon all the freemen in his
jurisdiction to his _placita_, and to fine them according to the law
if they failed to answer his summons. The fines collected in this
manner formed a substantial part of the revenues of the _judex_
imposing them, and consequently arose the abuse, which seems to have
been a great cause of complaint in the eighth century, that the
freemen were summoned to attend _placita_ at frequent intervals during
the year, when there was no business of any importance to transact,
and when the sole object of the summons was to furnish an excuse for
imposing the fine. An attempt to remedy this injustice was made when
the number of _placita_ which any one _judex_ could hold during the
year was limited by law to three,[64] and the dates for these
definitely determined. But the abuse does not seem to have been
satisfactorily corrected till the time when Charlemagne formally
substituted for the body of the freemen, who in theory were supposed
to attend the _placita_ and assist in the judgments, a limited number
of men who, as regularly constituted judges, either assisted the
_judices_ or made judgments of their own, as the case might be. These
officers were the _scabini_, whose position we are now investigating.
All of the best authorities agree that no authentic allusion to the
office in Italy is to be found prior to the establishment of Frankish
rule. The word _scavinus_ or _scabinus_ sometimes occurs, but in every
case the document containing it has been proved spurious on other
grounds. For instance, Brunetti[65] publishes a donation of the bishop
Speciosus of Florence, to the monastery of the cathedral, purporting
to belong to the year 724, in which a certain "Alfuso scavino" is
mentioned; but it has been proved that the monastery was only founded
in the year 760, and though it may, at a later date, have received the
donation, the significancy of the use of the term vanishes. The first
authenticated use of the name of the new judge seems to be in a
_placitum_ of Charlemagne of the year 781.[66] In this the parties to
a suit are mentioned as having already appeared before the "Comitem et
suos Escapinios." Eight years later, in a _Praeceptum_ of
Charlemagne,[67] commission is given to the _comes_ Tentmann "superque
vicarios et Scabinos, quos sub se habet, diligenter inquirat."
Now that we have indicated the origin and noted the first appearance
of the new officer, let us examine his position and his duties. I am
much more willing to allow to the _scabinus_ the title of "city
officer," than to the _dux_ or even the count. We have seen the latter
as one of the important connecting links joining the city to the
state, bringing the city into relationship with the constitution of
the kingdom and making it a part of it; but we have been unwilling to
call the count or _dux_ the _legal_ head of the city, as such, that is
to allow him the title of the first city officer. But with the
_scabinus_ the case is different. His mode of appointment, and the
character of the functions he performed, ally him with the city proper
and with city people. His duties and his interests were more confined
to the city than those of any of the other judges, and when he
accompanies the count to the general _placita_ of the king, he seems
to go in the capacity of a representative of the city, and more in the
character of a city magistrate than any officer we have yet
considered. His duties were almost entirely of a judicial character,
and his powers seem to have been as broad in their extent as those of
the other judges. That he had the power of imposing capital
punishment, and that the other officers of the law could not change
but only execute his orders, appears from the following passage:[68]
"postquam Scabini eum [latronem] adjudicaverint, non est licentia vel
Vicarii ei vitam concedere." Muratori[69] maintains that he also had
the right of holding certain _placita_ of his own, and cites in proof
two _placita_ of Lucca of the years 847 and 856, where we find: "Dum
nos in Dei nomine Ardo, Adelperto et Gherimundo Scabini adsedentes in
lucho Civitate Lucana," etc.; and "dum resedisset Gisulfus Scabinus de
Vico Laceses, per jussionem Bernardi Comiti ... ubi cum ipso aderat
Ausprand et Audibert Scavinis." In the first of these there is no
mention whatever of the count, and in the second "Gisulfus Scabinus"
acts with his associate _scabini_ "per jussionem Comiti." But even if
we allow to the _scabini_ the right of holding _placita_, these must
have been of a lower grade than those of the counts or of the _missi
regii_; for to the _mallum_ of the latter an appeal was allowed from
the judgment of the _scabini_, as we see from the law of
Charlemagne,[70] which says that: "Si quis caussam judicatam repetere
in mallo praesumserit ... a Scabinis, qui caussam ipsam prius
judicaverint, accipiat." Generally speaking, however, it seems
probable that their jurisdiction included all cases arising within the
city limits, which could be dealt with in the regular _placita_ of the
counts, and which were not of sufficient importance to be referred to
the king in person, his representative the Count of the Palace, or his
delegates the _missi regii_.
When the count went up to the general yearly _placitum_ of the king,
as the representative of the _civitas_, according to the laws of
Charlemagne he was to be accompanied by a certain number of the
_scabini_; and these seem to have accompanied him not solely in the
character of legal advisers, but also in a certain measure as
representatives of the cities in which lay their jurisdiction: they
are by no means what the exaggeration of Sismondi[71] calls "des
magistrats populaires ... qui representaient la bourgeoisie"; but they
certainly stood for the interests of the people, in a greater degree
than any of the ruling powers we have as yet considered. Their number
is variously stated in the laws of different kings, and their actual
number seems seldom to have come up to the standard of legal
requirement. Lewis the Pious requires twelve to accompany each count
when summoned by the emperor: "veniat unusquisque Comes et adducat
secum duodecim Scabinos";[72] but concedes that if so many could not
be found in the city, their number should be filled out from the best
citizens of the town: "de melioribus hominibus illius civitatis
suppleat numerum duodenarium."[73] According to Charlemagne,[74] no
one should come with the count to a king's _placitum_ unless he had a
case to present, "qui causam suam quaerit, exceptis scabinis septem,
qui ad omnia Placita esse debent." And again: "Ut nullus ad placitum
banniatur ... exceptis scabineis septem, qui ad omnia Placita praeesse
debent";[75] and seven seems to have been the usual number expected,
and their attendance was compulsory; though sometimes only two appear,
and in a few cases none at all.
Of all matters relating to this office, the one which is of most
interest to us, and the one which most clearly shows the difference
which was designed to exist between it and that of the other judges,
was the manner in which the office was obtained. In this procedure we
can trace almost distinctly that the object of the central power which
established it was to secure greater justice and greater freedom to
the subjects who came under its jurisdiction. The fact was recognized
by the new government that the power of the local heads was too great
to suit the principle of universal central control, which was the
keynote of Charlemagne's system of administration, and was exercised
in too arbitrary a manner; and that some check was necessary to curb
the spirit and limit the independence of these local lords of the soil
and the city who had little consideration for their inferiors, and who
might at any time become a source of danger to their superiors. Such a
check was found, in regard to the central authority, in the _missi
regii_, and in reference to the general public, in the _scabini_ or
city judges.
In the old Lombard constitution we have seen the gastald, chiefly,
however, in the matter of judicial decisions, exercise a controlling
influence on the arbitrary action of the duke; but as the power of the
count varied from that of the duke, so that of the _scabinus_ differs
from that of the gastald, only perhaps in a greater degree. At the
time when the count assumes the place of his predecessor the duke, the
_scabinus_ displaces the gastald, although he cannot be said to have
assumed exactly the same position as the latter, nor to have filled it
in precisely the same way. The _scabinus_ did not have, of course, any
direct limiting control over the actions of the count; for any such
power in the hands of a body of lesser officers would have been alike
contrary to the spirit of feudalism which characterized the age, and
impossible to its forms; but being the principal judicial
functionaries of the district, into their hands fell most of the cases
which formerly went to the _placita_ of the count; and while the wish
of the great emperor, that even the meanest subject of the realm
should receive impartial justice at their hands, might have failed in
its effect, its fulfilment was made more sure by the method prescribed
for the election of the officers whose duty it was to execute it.[76]