With the advent of Frankish rule under Charlemagne, marked consideration immediately appears for the church and its representatives. Not alone is ample protection granted to many of the churches of the kingdom, but to it is added the important function of exemption. The greatest evil endured in those days by the ecclesiastical authorities was exactions levied on their property and oppression exercised on their dependents by the dukes and counts under whose jurisdiction lay the temporal possessions of the churches and monasteries. Consequently the aim of every bishop and of every abbot was to obtain for the possessions of his diocese or his convent an exemption more or less complete from the civil administration of the neighboring secular ruler. For a long time there was no thought in the mind of the bishop of gaining for himself the functions of temporal jurisdiction, but simply that the power of the count should be restrained with regard to church property, that is, that he should not be able to exercise his judicial control over lands belonging to the church, except by the express permission, "per licentia data," and with the concurrence of the bishop himself. This and nothing more is what is meant by all of the charters of exemption granted by the Carlovingian rulers, down to the time of Charles the Bald, when, as we shall presently see, a change was introduced.
It would be useless for me to cite examples of such charters, for their number is countless, and reference may be made to any of the great collections of mediaeval documents for confirmation of what has just been said; for during the reigns of the earlier Carlovingians, the strong reverence for the church and respect for its officers which characterized the Frankish nation from the beginning led to the extension of these privileges to much the greater number of the churches in the realm. Not all churches enjoyed such grants, and not all those accorded were of the same liberal character, but the number given and the amount of liberty to the church thereby bestowed was sufficient to give to the clergy that degree of importance which ultimately culminated in making them the great lords that we find them in the tenth century. To give an idea of the tenor of these documents, I will, however, quote a few lines from the earliest one that has come under my notice in Carlovingian times, namely a diploma of the year 782, issued to Geminiano II., bishop of Modena, and preserved in the archives of that city. Here we find that: "Nullus judex publicus ad causas audiendum, vel freda exigendum, seu mansiones aut paratas faciendum, nec fidejussiones tollendum neque hominibus ipsius episcopatus distringendum," etc. This is sufficient to show the character of exemption from secular jurisdiction.[90]
The next forward step in the advance of the bishops to temporal power was made probably about the time of Charles the Bald; though under his two immediate predecessors, Lothaire[91] and Lewis II.,[92] we already see indications of an extension of the quality of exemption to include freedom from the payment of all public dues and the bearing of all public burdens.[93] It was precisely the introduction of this element of exemption from public burdens which marked the change in the nature of the immunities granted from the time of Charles the Bald, down to the period when the element of jurisdiction and real temporal power was introduced under Guido and Berenger. Up to this time, the grounds on which similar charters had been sought had been protection from the oppression of the counts, and had resulted, as we have seen, in the granting of simple charters of protection which were of no very great significance. But now it is exemption from public burdens, etc., that is made prominent, in addition to a complete severance from all jurisdiction and control of the secular power of the civitas in which the bishop's see and domains are situated. That this concession also was sought by the bishop on the plea of protection for his dependents from oppression and exaction, does not diminish its importance; for it is easy to see that the line which separates recognized right of protection from recognized right of jurisdiction is one easily effaced, and defense from the tyranny of a foreign power can with little difficulty be transformed into domination by the professed defender.
That this was the order of development consequent on these changes is proved by the temporal dominion gained by the bishops in the next century; and the steps of its growth marked by numerous immunities granted by Charles the Bald, Karloman[94] his successor, and Charles the Fat, the last of the Carlovingians in Italy. As a good example of the complete development of this advance gained by the bishops, I will mention a charter given by Charles the Fat to John, bishop of Arezzo, in the year 879, in which he confirms to him all the property and the rights of that see, and takes him under his protection, "sub immunitatis suae defensione": he then goes on to explain what this term meant, giving a full account of the extent to which a bishop's property was exempted from the jurisdiction of the judex publicus, and protected from the imposition of burdens and exactions.[95]
The next step in the growth of the episcopal power, and the most important of all, is the progress from exemption to privilege, to jurisdiction; and occurs after the return of the kingship of Italy to the hands of native kings.[96] It means the full development of the bishop into the temporal ruler, and as such belongs properly to the history of the tenth century, and consequently is beyond the limits of the present paper.
We have now considered individually and separately, in the course of their development, the different elements which, when combined and modified by the various changes described, contributed to form the solid foundation upon which the fabric of the future independent life of the cities was to be built. We have been dealing exclusively with institutions, and the manner in which their growth has been accomplished. For it is in the institutional life of a people, and in the change and development it undergoes, that are to be found those elements which form the basis for all future changes, whether simply in the form of its government or in the structure of its social system. If once a clear picture is gained of the structural parts which form the institutional framework of any particular development, and a truthful presentation of these forming principles is proved and established, a detailed account of the material expression of them is a matter of secondary importance.
I have not, in this paper, attempted to describe the actual condition of any particular municipality, or even presented a picture which could represent the material existence of the cities as a whole. Such a picture would only be a necessary part of a study of institutions when the city itself was the unit to be investigated, and not of one whose chief object is to prove that the city as such had no constitutional existence, but simply formed a part of another institutional unit. When we reach a period in which the city stands out as an object of study in itself, and when we do not have to trace its history only by learning that of other institutions which included and overshadowed it, then the practical life of the people within its walls becomes of the greatest importance, even to the smallest detail of civic law or city custom; and then, and not till then, begins what could properly be called a study of municipal institutions.
During the three centuries that we have been investigating, the study of the Italian municipalities has been, as we have seen, but the study of other institutions of which the municipality formed only a part. No attempt has been made to do more than prove the origin and trace the earliest development of those principles, which in their maturity were to gain for the municipal unit that position where the study of its own structure would become an object of interest, entirely apart and distinct from any of its surroundings. It has been shown that the city did not inherit any such position from its immediate predecessor the Roman municipium, which we have learnt to consider as overthrown, from a constitutional standpoint as annihilated; but that the new principle introduced into state life by the northern conquerors of Italy, the principle of administration by county rather than by urban divisions, relegated the city to an inferior place as part of a rural holding, instead of leaving it the centre of a circle of rural dependencies. Having demonstrated the absence of all constitutional recognition of the municipal unit as such, I have attempted to show how a condition of such legal insignificance became generally a condition of actual importance; how from a position of such negative interest, the advance of the city was commenced along a road which was ultimately to restore it its old pre-eminence, even adding to this in time the almost forgotten attribute of sovereignty. The motives for this advance we have seen to be no higher ones than convenience and expediency, which made the urbs of every civitas the natural centre of its local administration, thereby in fact, if in no way by law, restoring to it some of the elements of individuality, if not of pre-eminence, which it had lost. The means employed we have seen to be the functions of the various officers of state: the dux, the count and the gastald, who connected the city with the state, and the scabinus and the bishop, who represented this connection to the consciousness of the people. We have noted the marked effects produced on the development of a more popular feeling, by the changes introduced by the great emperor of the Franks; which, by diminishing the power of the local lords, accomplished a double benefit; on the one hand by saving the people from the arbitrary rule of a feudal superior; on the other, by causing the city to become more of a dependence and more of a support to the state as a whole. And finally we have left the city prepared, on the return of another dynasty of native kings, to accept, at least in a large number of cases, the domination of another kind of lord, a spiritual one; who was to serve as a medium for breaking up the power of the old lords of the civitas, and from whom it would be an easier task for the commune of the future to wrest the power and the sovereignty which was to make it a free and independent autonomy.
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