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

In describing the method by which the scabini gained their office, I am in some doubt as to the proper terms to be employed. I have just made use of the word "election," but cannot let it stand without some qualification. It was not an election in the strict sense of the word as we now understand it, but it was as near an approach to a popular choice as was possible in the age in which it existed. The citizens of a municipality did not nominate and elect by their votes a popular magistrate, as some writers would have us believe; for such a proceeding would have been an anomaly in the eighth century under the rule of a Frankish emperor. But the people had a voice, and from the frequent mention of their intervention it would seem an important voice, in the selection of those who were to be their judges, and who were to assist in representing them in the royal assembly. The original appointments were made by some higher power, in most cases the missi regii, the direct representatives of the king; but these were made not arbitrarily, but always "cum totius populi consensu." This was the important point; it was so far a popular office that the free consent of the people was always necessary to make valid the appointment of any incumbent. According to the ideas and customs of the eighth century, such a method of procedure would represent a fairly popular election; for we know well that in the times of the greatest freedom, the Teutonic idea of a popular vote never went beyond the mere expression of assent or dissent by the assembled freemen. The initiative was always left to the king or chief who conducted the meeting, just as much as it was in the ancient assembly held on the classic plains of Troy. In a capitulary[77] of Charlemagne of the year 809 it is decreed: "ut Scabini boni et veraces cum Comite et populo elegantur et constituantur": and more specific directions are given by Lothar I. in the year 873, in case of a scabinus found to be an unjust judge. He says:[78] "ut Missi Nostri ubicumque malos scabinos invenerint ejiciant, et totius populi consensu in loco eorum bonos eligant." From this latter example we see that the missi had the power of dismissal "for cause," as well as of nomination. In fact, the king and his ministers, in the interests of impartial justice, kept constant watch on the acts and judgments of the scabini, and a law of Lothar I. tells us that "quicumque de Scabinis deprehensus fuerit propter munera, aut propter amicitam injuste judicare" should be sent up to the king to render an account of the manner in which he had fulfilled the duties of his office.

Such then were the duties, the privileges and the restrictions of the first magistrate to whom we could venture to ascribe any of the attributes of a popular judge: a representative of the people at the assembly of their ruler; a judge of their suits and of their misdoings at home, and a check on the arbitrary power of their lord and feudal superior,—we can readily appreciate that the existence of such an officer within the city must have exercised some influence in giving to its inhabitants a greater sense of security, and consequently of importance, even if we cannot claim that in the earliest stages of municipal development it gave birth to any definite ideas of personal freedom or of municipal independence. But it can easily be seen that it formed another and an important factor in that idea whose progress we wish to trace, of a slowly growing feeling of individuality in the city as such, the municipal unit as conceived apart from the still legally recognized unit, the entire civitas. We have seen the count the representative of this idea as far as its actual connection with the constitution of the state was concerned, but it was the scabinus who was to represent it to the consciousness of the people, and to assist them in rediscovering the lost conception of a municipal unity.

It would be incomplete to conclude this account of the various officers of government, without some mention of the position held by the bishops at this period. As it has been our duty throughout this paper to study the municipalities of Italy as only preparing to assume a position of individuality eventually leading to independence, so it is with regard to the bishops. While their social influence, as pointed out in the first part of this paper, was always notable, their political power, which formed one of the important steps in the progress of the communes towards a separate existence, has its birth at a time which is beyond the limits of this investigation. Not until the overthrow of the Carlovingian dynasty left Italy the prey of contending factions, and the crown passing quickly from hand to hand made each applicant anxious to gain the support of the more prominent electors, did the bishops obtain that legally constituted political power which, by breaking up and in many cases destroying the rule of the counts and great nobles in the cities, was the means of bridging over the wide gulf which lay between the idea of a district under the almost absolute rule of a great lord, and a civic autonomy governed by its own independent citizens. Even, however, if we are not yet to portray the bishop in a position of high political importance, we may briefly consider his social power and influence, and, as we have done with the cities themselves, indicate the steps by which he was enabled ultimately to gain such an exalted position.

The relations of the bishop to the inhabitants of the cities during the period we are considering were pretty nearly such as described in the first part of this paper. He stood forth as protector of the weak and the oppressed; as mediator between an unfortunate prisoner and an unjust judge who was seeking his private interest rather than following the spirit of impartial justice; or between a downtrodden vassal and the almost unlimited power of his feudal superior. He lessened the severity of harsh judgments, he protested the imposition of unjust fines and penalties. In very many cases he was even appointed by the king or his representatives as co-judge to assist the judex or the missus in hearing cases where oppression or injustice was to be feared. But it is important for us to avoid confusing this kind of jurisdiction with that which he enjoyed in the century after he had attained the power and the office of count, and had combined the religious functions of head of the diocese with the secular ones of political ruler of the city. Any judicial authority possessed by the bishop at this earlier period was not in virtue of any political position he himself held, but came to him entirely in what might be called an extraordinary manner, that is, by delegation from the king, for definite specified occasions. As an example of this extraordinary delegated jurisdiction, I will refer to a document in the Archivio of the Canons of Arezzo[79] of the year 833, relating to the judgment of a dispute between "Petrum Episcopum Arretinum et Vigilium Abatem Monasterii Sancti Antemi," situated in the territory of Chiusi, over a privilege ceded to that monastery by Lewis the Pious in 813.[80] The bishop of Arezzo gained a favorable decision from a court constituted of some judices, missi of the emperor, and of the bishops of Florence, Volterra and Siena, Agiprandus, Petrus and Anastasius. According to the terms of the document with regard to the composition of this court, the bishops sitting in it were "directi a Hlotario magno Imperatore"; and their powers are several times referred to as being "juxta jussionem et Indiculum Domni Imperatoris." Here, as in all other similar cases, we see plainly that there is no indication of any purely personal jurisdiction.

That the influence of the bishop in affairs of state at this period was only of an individual, extra-official character can be seen also from the fact that the king considered the bishops themselves to be under his judicial jurisdiction in all secular matters, just as the lesser clergy came under the jurisdiction of the judices:[81] and further, that after the election to a church, the decision of the judex must confirm the choice of the community in order to render it valid.[82] All disputes also between bishops and their clergy, between members of the body of clergy, and between these and members of the laity, were settled by the royal authority;[83] and what is most significant, there was a universal and freely used right of appeal for the clergy or laity from the decision of a bishop to the person of the king, who seems to have exhibited no hesitation in modifying or reversing sentences, even in matters relating to purely clerical discipline.[84]

Even in the time of the Franks, when the consideration shown to the church and its representatives was much greater than under any of the Lombard kings, we find Charlemagne,[85] on suspicion of infidelity to his government, having sent to him and retaining as prisoners the bishops "Civitatis Pisanae seu Lencanae" and Pottoni, Abbot of the monastery of Volturno; and Lewis the Pious[86] sends into exile "Ermoldo Nigello Abatis," and in the year 818 several other bishops, including Anselmus "Mediolanensis Archiepiscopus," "Wolfoldus Cremonensis" and "Theodolphus Amelianensis."[87] None of these restrictions and limitations, however, although they arose chiefly from the strong opposition always existing between the local temporal rulers of the people and their spiritual rulers, could hinder the bishops from occupying that important position of mediators and of protectors of the people which we have ascribed to them.

Turning now to a consideration of the earliest steps which may be said to have cleared the way for the political power of the bishops, we are met by a subject which, though of great interest in itself, is not sufficiently a part of this investigation for us to do more than indicate the lines of its progress. This subject is the development of the practice of giving certain immunities and privileges to churches and monasteries, adopted by the Frankish kings, faithful sons of the church, and then followed by all their royal and imperial successors. In considering the important influence exercised by these immunities on the development of the espiscopal power and the effects of this on the growth of the communes, there are two essential facts which we must always keep prominently in mind. In the first place we must remember that the granting of immunities was a question of privilege to particular individuals or ecclesiastical institutions, and not a universal grant which affected in an equal degree all the dioceses of the realm. This led to the marked differences in rank and importance which existed between the various bishoprics, and in the tenth century, when the temporal power became in many cases an adjunct to the spiritual, caused some bishops to become powerful temporal princes, while others, unable to gain this pre-eminence, remained simply spiritual heads of their respective dioceses. So in the contest between the counts and the bishops we find the latter only victorious in certain cases, and consequently having only certain of the cities under their jurisdiction; a fact which is illustrated as late as the Peace of Constance, where in the ninth article the cities are still divided into episcopal and non-episcopal cities.[88] In the second place we must keep clearly before us an important fact, the truth of which any chronological account of the development of the principle of immunity would easily demonstrate, namely, that with the advance of time and with the growth of that principle, the changes which took place in the different sorts of immunities were not simply those of degree, but essentially and principally those of kind.

A descendant of Charlemagne may have granted to some monastery or bishopric a greater alleviation of some of the fiscal burdens borne by it under his immediate predecessor, but a successor of Berenger when he granted a privilegium did not simply perform the negative benefit of alleviating burdens; he endowed the head of the bishopric—probably in return for some service he had received at his hands or expected to receive—with the positive benefit of the political headship and possession of some city or district of a former count. I mean by this that the earlier immunities—and in these are included all given during the period we are discussing—were all of them what are termed simple or ordinary immunities; that is, those which deal with exemption—whether from burdens for which the receivers would otherwise be liable, or from jurisdiction to which they would otherwise have been subjected—of what may properly be called the private possessions of the churches concerned. They had nothing to do with the privileges of a later time, by which a power to exact burdens was granted and a positive jurisdiction over others allowed: that is, public functions bestowed rather than private rights conceded.

That a distinction of such a character was a difference of kind and not of degree is so plainly apparent that it is unnecessary to dwell longer upon it, and it only remains for us to consider briefly the chronology of some of the changes that took place. If we adhere strictly to the proper signification of the terms used, the development can be somewhat succinctly described by the simple enumeration of the three characteristic features of its progress, viz. protection, exemption, privilege that is jurisdiction or temporal power; and the three periods which are covered respectively by the prominence of these ideas can be roughly stated to be: for the first, the reigns of Charlemagne and his successors down to the time of Charles the Bald—including any indication of this idea which we may find during the reigns of the last rulers of the first Lombard kingdom; for the second, the reigns of Charles the Bald, Karloman, and Charles the Fat; and for the third, the full development of the episcopal power in the tenth century, down to the period of its final decline, and the rise of actual municipal government within the communes.

It is doubtful whether immunities of any importance were granted even by the latest kings of the Lombards, before the invasion of the Franks. Under the first Lombard monarchy the church held a very subordinate position with regard to the state, and if privileges were granted to any of its members, they had attached to them no greater meaning than the simple extension to them of the mundibrium of the king, such as was often allowed to private individuals; that is, they were simply grants of royal protection, and were not similar to the later grants which included both protection and privilege.[89]