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.

by William Klapp Williams

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]