This statement is confirmed by the many charters, immunities, etc., addressed to the episcopal authorities; and direct proof of it may be had by reference to the controversy which arose in the first half of the eighth century between the bishops of Arezzo and Siena, which dispute was based on the fact that for reasons definitely stated these two dioceses formed an exception to the general rule. The strength of the proof lies in this exception, which had a well-known cause for its origin. Some of the documents[15] in the case, of the year 715, show that the bishop of Siena claimed for his jurisdiction certain churches which belonged to the diocese of Arezzo, basing his claim solely on the ground that these churches were situated in the territorium of Siena. The bishop of Arezzo, on the other hand, claims them as part of his diocese, on the ground that they had formed part of it ever since the beginning of Lombard rule in Italy; and—which is the part of importance to us—gives as the only reason for their having been attached to the diocese of a neighboring territorium, the fact that at that early date there was no bishop in the territorium of Siena. That a claim of such a character should have been based on the argument of the natural coincidence of the boundaries of territorium and diocese, is sufficient proof of the identity of these limits at that age. In a bull of the year 752,[16] Pope Stephen II. decides to adhere to the already existing diocesan divisions, and adjudges to the bishop of Arezzo the churches "quae esse manifestum est sub consecratione et regimine praefatae S. Aretinae Ecclesiae, territorium vero est prefatae nominatae Civitatis Senensis."
We see then the perpetuation of the old Roman land divisions in the new commonwealth through the medium of the civitas and the diocese. How long these divisions remained intact and what were the causes and the extent of their final overthrow, forms part of the history of the later development of the Italian communes. Here I will simply indicate the fact, that among the reasons which led in most instances to a departure from this system of land boundaries, are to be found some of the most important causes for the development of freedom and independent jurisdiction among the cities. It is to the destruction of this identity of interests and of government which existed between country and city, that is owed the ultimate predominance of the latter, and its regaining its ancient position of a self-centered unity; although in its new form we find this depending on the principle of individual liberty, instead of being based on the principle of government by a central power. Whether this emancipation from the bonds of a rural dependence was brought about by the practice later entered upon, of breaking up the counties into a number of smaller units with the so-called "rural counts," each ruling over a castellum or fortified village; or by the fact that many of the bishops obtained political as well as religious control over a city and a limited area of the surrounding country, generally extending only three or five miles beyond the city walls; or whether this freedom was the result of the spontaneous growth of civic and economic life within the city itself; or finally, whether it came from a combination of all these and many minor causes, is a question which—for the early period of the development at least—the progress of our investigation will answer for itself.
It will, however, be impossible for us to understand thoroughly the relations of the city under Lombard and Frankish rule to the central and to the local government, unless we know somewhat of the local and state officers who exercised jurisdiction within the territorial limits just described. By a consideration of their special powers and of their special duties, we must learn all that we can know with any degree of certainty with regard to the position of the city in these times. With this in mind, let us first examine the office whose functions it is at once the most difficult and the most important for us to understand in all its bearings—that of the Judex. We must consider it not only in the relation which it bears to the higher grade of officers, the Lombard duke and the Frankish count, but also in its relation with the lower officials who severally enjoyed more or less of the powers attached to its possession, namely, the gastald, the sculdahis, the scabino, and even the rural counts and the bishop. And in tracing its development we must note the influence it bore on the growth of the municipal idea, and also its connection with the political jurisdiction, commonly combined with it in the person of a single official.
In considering the institutions of a comparatively crude state of society, such as existed in Europe in the early middle ages, it is misleading if not impossible to differentiate to any great extent the various functions and kinds of power which were commonly centered in the same individual. Consequently the only safe way to give a clear idea of the position and the powers of the judex, is to give a description of the various offices to which judicial authority was attached, in degrees more or less complete, corresponding to the social and political importance of the person exercising this authority.
In the Lombard system, at the head of each civitas, as lord and as judge, was the dux, or duke. His title and his office being but the relic of his original high position of leadership in the army of the invasion, when his command was only subject to that of the king, the leader-in-chief of the army-nation and head of the military constitution, he held directly from the king, attended the royal placita as the king's vassal, and held placita of his own within his own jurisdiction, and over which he presided in person. Beyond the duties of his own particular jurisdiction his chief office was to assist the king by his presence and his counsel, when the king gave his judgments at the annual assembly in March, at the capital Ticinum. The importance of this concurrence of the judices in all the king's decrees and official acts is illustrated by the fact that cases are rare in which this concurrence remains unmentioned. The usual practice is to introduce in the prologue which is commonly attached to the laws given out during each year of the king's reign, after the mention of the date "Kalendiis Martiarum," some such expression as "cum nostris Judicibus";[17] or "ad nos conjungerentur Judices";[18] or "per suggestionem Judicum";[19] to which is sometimes added the formula "omniumque consensum,"[19] or "cum reliquis nostris Langobardis fidelis." That legislation was not considered valid until such consent and advice was obtained, we can see from the prologue to the laws issued in the thirteenth year of the reign of Liutprand, in which he refers to certain important "causae" which had come under his jurisdiction, and for which additional legislation was necessary, the laws already existing failing to reach them. To meet the exigency new laws are enacted, but the king especially states that the cases must remain in abeyance until the new laws are confirmed by the judices at the next assembly in March. In speaking of these "causae" in the above-mentioned prologue to the laws, he says: "Proinde providimus eas usque ad suprascriptum diem Kalendii Martiarum suspendere dum usque nostri ad nos conjungerentur judices," etc.[20] This attendance at the royal placita represents the most important of the legislative duties of the judex outside of his own jurisdiction.
Of other duties which caused him to leave the seat of his authority, the only ones we need here consider are his military duties; and with regard to these it will be sufficient to point out that the judex was the leader in war of the vassals and lesser lords, and indeed of all the inhabitants of the judiciaria who were entitled or compelled, by the forms of their tenure, to bear arms. Ample proof of this is to be found throughout the law codes, but we need not pause to cite such confirmation, if we remember the natural evolution of the office of dux from his position in the original Lombard military system. As a good example of this military leadership we may refer to the provisions of the twenty-ninth law in the sixth book of the laws of Liutprand.[21]
What is of the greatest importance to us, however, in bringing out the relations of the cities to the rest of the community in Lombard and Frankish times, is the position of the judex as duke and as count within his own judiciaria, that is, within the civitas of which he was both lord and judge. It was through him, or perhaps I should say chiefly through him, that the city was at this period connected with the state; and it was principally by the exercise of the functions of his office that the city formed a part of the state. His official residence, in the majority of cases, and his courts, were situated within the city's limits; thus making the official machinery of government a part of the city life, and causing the city to become an actual if not a legally recognized part of the constitution of the state. As far as this investigation is concerned, this represents the prominent feature of the power and position of the head of the civitas. We must be careful, however, to avoid any confusion of ideas as to the importance which it gave to the city as a municipal unit or as a corporation. It was in no way what we could call a municipal government, even admitting a rather loose interpretation of the term, as the supporters of the theory of the survival of the Roman curial system would have us believe.[22] The judex may be called "the highest municipal officer among the Lombards," and this designation still be correct, though perhaps misleading. He was the highest officer of the locality, and his official duties were for the most part carried on within the city; but the leading fact we must keep prominently before us is, that he was the head of the whole civitas, and not in any sense of the city as such: and further, that his powers over the rural portions of the civitas were in no sense added to any purely municipal powers he may have possessed; but, on the contrary, if we are to draw any distinctions, the municipality formed a part of the land division. That the whole civitas was commonly named after the largest town contained within its borders, and that the seat of power was generally placed within the city walls, are facts too evidently brought about by motives of convenience and expediency and by the force of old association, to lead to any confusion in appreciating the proper place of the city. Where there were to be found buildings suitable for the residence of the dux, and where was located the largest collection of individuals, was manifestly the most appropriate place for holding the courts and settling the disputes of the inhabitants of the whole civitas, and this formed a natural centre for the machinery of government. But every inhabitant of the civitas had equal rights with the townsman proper, and, as in the old Greek [Greek: polis], the most remote countryman dwelling on the borders of the civitas, if he possessed the franchise, was as much a citizen of Padua, Siena or Milan, as if he dwelt within the walls of the city which gave its name to the whole civitas.
A consideration of these facts brings out two important points, which I will briefly indicate before passing on to a little more detailed treatment of the powers and the duties of the judex. In the first place it has been made clear that at the time under discussion nothing that could correctly be called a "municipal system" existed in Lombardy, and the city, as such, had no independent existence or independent relations with the state. And secondly, it cannot but be manifest that the position that the city did occupy as actual, if not necessarily as legal, centre from which issued all the administrative functions of the district, the residence of the chief authority and the seat of his courts, would have a marked tendency to increase slowly, perhaps imperceptibly at first, the importance of its position at once in the civitas and in the state, and at the same time to improve the character of its inhabitants and in time increase their wealth. That this ultimately came about the development of the later independent communal life is a proof, and the tardy steps by which this was attained but serve to show the difficulties consequent on so slight and so feeble a beginning.
The obscurity which promptly descends on the brain of the intelligent reader who endeavors to gain a clear idea of the state of society or of the administration of government in these early ages of Italian history, makes the careful student very skeptical of any precise presentation he may find of them, and causes him to be particularly cautious and proportionately diffident in making, himself, any very definite statements concerning them. If he be a wise man and wish to make his investigation of some use to others, he frequently says "it seems probable," and he particularly avoids mentioning dates which are fixed and immovable. If this may be said of all matters not belonging simply to the narrative portions of history at this period, particularly true is it of the different functions attributed to various officers of local government, whose very titles we sometimes have to infer from their duties, and whose duties we often have to infer from their titles.
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.