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 most important of the functions of the dux as judex was holding the Curtis Regia or Curtis Ducalis, in the largest city or "urbs" of every civitas. Here, in conjunction with his subordinates, he heard all cases which did not go up to the king for judgment, and here was centered the fiscal administration of the civitas. To describe in detail the composition of these curtes, their jurisdiction and methods of procedure, would require a whole chapter of no mean proportions, and however interesting in itself, would be out of place in the present investigation. All that it is needful for us to consider is the relation of these curtes to the municipalities in which they were located. Of their location within the city walls the proofs to be found in numbers of the old documents are to me conclusive. I will give a few examples, however, commencing with two from the documents which have already been quoted from Brunetti, relating to the dispute between the bishops of Siena and Arezzo. In the first of these[25] we see that in the year 715, the king's majordomus Ambrosius interferes "in Curte a Domini Regis" at Siena, in opposition to the local bishop and gastald; and in the second[26] we find the royal notary Gunthram forbidding a fresh examination of witnesses "in Curte Regia Senensis." In a document of the next year[27]—716—we find "Ebugansus, Notarius regiae Curtis," taking part in the procedure in a case between the bishops of Pistoia and Lucca; and a little later, in the year 756, is mention of an exchange of property between "civitis regia lucencis" and the church situated in that city.[28] In the "Opusculum de Fundat. Monast. Nonantulae," published by Muratori,[29] we find a donation by King Aistulf to that monastery: "prope castellum Aginulfi, quod pertinet de curte nostra lucense, et duas casas masaritias de ipsa curte"; and "granum ilium, quod annue colligitur de portatico, in Curte nostra, quae sita est in Civitate Nova."[30] In Carlovingian times Charles the Bald, in the year 875, in the "Chronica Farfense,"[31] appears as saying, "in Curte nostra infra Castrum Viterbense": elsewhere "curtis regie Viturbensis" is spoken of[32]: and later, in 899, Berenger gives to the bishop of Florence "terram … pertinentem de curte Regis istae Florentiae"[33]: and finally, not to multiply examples, I will mention a privilege of Karloman's, published by Ughelli[34], by which he gives to the bishop of Parma certain regalia: "id est curtem regiam extructam infra civitatem Parmam cum omne officio suo," etc. From even these few instances we can see the connection between the Curtis Regia and the city which gave its name to the civitas, a connection the importance of which we must not fail to appreciate, in consideration of the great influence which it exercised in the future development of the municipal unit from a beginning so insignificant.

Of some importance in connection with the early history of the cities are the questions which arise in relation to the fiscal duties and privileges of the curtes regia and its officers. In it was centered the fiscal administration of the kingdom; and its officers, in the various grades from the dux downward, received and were responsible for the revenues of the state. So prominent a part belonged to this form of the functions of the curtes that it is quite common to hear the revenues themselves, by a transposition of terms, called by that name, or by that of palatium, a word sometimes found even for the curtes regia in their proper general sense; but this, from what I have been able to gather concerning its legitimate use, should properly be applied only to the residence, or by conversion the revenues of the king himself[35]. What is of interest to us in this matter is the fact that the curtis regia fell heir to the publicum or communal property of the old Roman curia, when these were overthrown by the Lombard conquest.

In considering this phase of civil administration under the Lombard system, we are again brought face to face with the old question of the survival or non-survival of corporate existence among the cities. For if it could be proved that the municipality in its corporate capacity retained the communal property and administered it, there would appear to be good grounds for the assertion of the continuance of some form of quasi-independent municipal government; but if, on the other hand, it were found that the property of the municipality passed to the new head of local administration or to the central power, it would be evident that the continuance of the municipal system as such was a logical impossibility; for, deprived at once of its property and of its revenues, it would have had no vitality to keep it from a speedy end.

In investigating a question of this nature from the sources at our disposal in a period of history so obscure, we cannot expect to find any definite statements sufficiently precise to set at rest at once all opposition and discussion; but after considering the character of the people we are investigating and studying their institutions, and after a careful examination of the laws and records which form the sources of our information, we are, I think, in a position to be able to give a sufficiently decided opinion as to whether a particular set of facts or conditions could possibly have existed in a state of development and in a society of a given character. Thus it is in regard to the matter in hand. From the numberless cases in which the publicum is mentioned in the documents from which we draw our materials, it seems to me possible for a critical examiner to come to but one conclusion, if, as is quite essential, he take into consideration the unmistakable spirit of these writings, and if he give a legitimate interpretation to the various terms employed. To cite in direct proof any individual instance is, perhaps, impossible; but indirect evidence is forthcoming in abundance, and of a character to be, to me at least, entirely conclusive. The conclusion reached is, then, that the king and the dukes were the successors of the old curia in the possession and the administration of all properties and revenues, taxes and fines formerly belonging to the organized corporations of the Roman municipalities, and that the curtes regiae were the channel through which these were collected, divided and expended.

The grounds on which this assertion is based are the continual recurrence of examples of functions of a fiscal character being exercised by the head of the civitas and his officers, and by them alone; and it appears to me that it could only be by a complete misunderstanding of the spirit of the early writings, and by a comprehensive misapplication of the terms used in them, that these functions could be referred to any other power. These functions of the administration may be grouped under three main heads, viz: 1. Fines and forfeitures, which, of course, played a very prominent part under the Teutonic system of composition for offenses of a criminal nature; 2. Taxes and privileges, by which is meant feudal rights, dues, etc.; and 3. Buildings and lands belonging to the crown or to the head of the civitas as a public officer.

Of the fines and forfeitures paid into the publicum, we find that a part went to the royal treasury and a part to the judex, and in some cases to the informer or the prosecuting officer; and at different times we find these proportionate amounts definitely defined—as, for instance, in the time of Charlemagne two parts went to the king and one part to the count who acted as judex;[36] this we know from two of the Lombard laws of that emperor.[37] In one of these,[38] speaking of those who evaded military service, he says: "Heribannum comes exactare non praesumat: nisi Missus noster prius Heribannum ad partem nostram recipiat, et ei," the Count, "suam tertiam partem exinde per jussionem nostram donet."[39] We even find evidence of quite a large amount of liberty used by the duces in the ultimate disposal of property coming under their jurisdiction by forfeiture, the more powerful making use of it precisely as if it were private property. For example, in the Chronica Farfensis[40] appears a case judged by Hildeprandus, dux of Spoleto, in the year 787. A certain nun named Alerona, for having married a man named Rabennonus, "secundum legem omnis substantia ipsius ad Publicum devoluta est"; a little later Rabennonus, for having killed a man, "medietas omnis illius substantiae ad Publicum devoluta est." In consequence, in poetic justice and for the good of his soul and the king's, Hildeprandus quite arbitrarily presents "omnem praedictam illorum substantiam, qualiter secundum legem juste et rationabiliter, ad Publicum devoluta est," to the Monastery of Farfa "pro mercede Domnorum nostrorum Regum et nostra." Here, as in many other cases, we see the dux making gifts of property belonging clearly to the publicum, to persons favored by him and for his own benefit. Such a condition of affairs would certainly never have existed had public property been administered by authority other than that of the dux.

With regard to the revenues falling under the second of the rough divisions we have indicated—taxes and privileges—it is easier to see why differences of opinion should have arisen; for here, especially in matters relating to the collecting of taxes and dues, we are confronted with the names of a large number of lesser officials and subordinates of the judex, some of which are undoubtedly taken from the like officers existing in the old Roman curial system. But this survival of names, and in some instances of offices, need cause us no alarm, for it coincides exactly with the theory presented, namely, a continuance of many of the old forms of administration controlled by an entirely new principle of government. There are certain minor functions necessary for the support of the state which must be carried on in much the same manner, whatever be the character of the governing power—certain subordinate offices whose duties must be performed under a republic or under a despotism. Taxes may be collected by widely differing methods under the two systems, but there must always be the tax collector and the tax assessor. We can, however, see at a glance the weakness of any argument which contends that because the name and even the general duties of the tax gatherer were the same in each case, that the whole system of administration of the taxes or of the community were necessarily identical or even closely allied in character.

It is here we see the weakness of those writers who insist upon the continuance of the Roman curia in the municipalities of the Lombard kingdom. They seize upon a few names, relics of Roman rule, and from them generalize a complete system of taxation and administration. That the existence of any such system is alike contrary to fact and to the whole nature of the Lombard people, any critical and impartial study of the sources of government revenues at this time will make clear. It would be out of place to burden a paper of this character with the results of a minute investigation into the fiscal relations of the rulers and the people when this has no immediate connection with the development of municipal government; but I will state that a careful examination of all available sources, including documents and statutory enactments, both public and private, reveals, to my mind, a theory and a system of raising the revenues of the state closely allied in both principle and detail to feudal forms and feudal ideas, and having little in common save the names of a few of its officers, with the ancient methods of collecting the taxes peculiar to the Roman municipal constitution.[41]

In general terms, the collectors of the revenues were called telonarii, or actores, exactores or actionarii, etc., and the taxes they collected were the usual feudal dues, fines, forfeitures, compositions for service, etc. The nomenclature of these various officers and of the different duties they had to levy, varying as it did with regard to locality, and more especially with regard to time—the Franks introducing an entirely new set of names for institutions often identical in character to those displaced—presents an amount of confusion which, fortunately, it is not necessary for us to endeavor to penetrate; but, having stated the foregoing general conviction with regard to the fiscal system, we will now pass on to a consideration of some of the lesser offices held within each civitas by the deputies and subordinates of the dux. These, of course, were connected, in degrees more or less close, with the different curtes regiae, and with the placita held in the various civitates commonly about three times in the year. Some of the officers, like the vice-comes found to have existed in many localities, are simply deputies of the dux, or representatives of his person, and hold their office simply by virtue of his will and under a somewhat arbitrary tenure; others, like the gastald, the sculdahis, and later the scabinus, represent offices which formed an integral part of the constitution of the government, and appointment to which, whether made by the dux or by the central power, involved a necessary duty of a determinate character. An accurate determination of the relative positions of these various minor officials, of the extent of their jurisdiction and of its limitations, presents one of the most difficult problems which the student of these dark ages of history is called upon to solve. The peculiar character of the sources from which we have to derive all our information makes it quite possible for all writers on the subject to disagree with regard to details, and leaves a wide margin for discussion even on the important characteristics of the various offices. Avoiding as much as possible the points of controversy, I will endeavor to give the general features of the more important of these offices, the conclusions given in each case resulting from an examination of the different theories held and of the sources on which these are based.

The officer who seems to have ranked next in importance to the dux within the limits of the civitas is the gastald, who goes indifferently by the name of gastaldus, castaldius, or gastaldio. His powers were of a judicial character, and he shared with the dux the title of judex; but whether he enjoyed the full prerogative of a judex civitatis, or whether his judicial functions were of a more limited character and referred exclusively to matters of a fiscal nature belonging to the curtis regia or the camera of the king, is a question to which the evidence to be gathered from the law codes gives no decided answer.[42] It seems probable, however, from the importance seemingly attached to the holders of this title in the many cases in which they are mentioned in the old laws and documents, that their jurisdiction was of a broader character than would be implied by a restriction to purely fiscal functions; in fact, that it approached more nearly to the power of the dux and judex civitatis, though being in some way of less extent or possibly supplementary to it. Perhaps the distinction would come out more clearly if we said that the office was characterized by its relations to the fiscal functions of the state, but that its duties and privileges appear not to have been restricted to affairs of that nature. It is certainly true that very many instances occur in which the duke and the gastald are alluded to, whether in laws or in contracts, in precisely the same terms and in positions which would seem to indicate an almost perfect equality of dignity. As, for example, in a meeting between Liutprand and Pope Zacharias, described by Anastasius Bibliotecharius,[43] where dukes and gastalds are together reckoned among the judices: here the king goes to meet the pope "cum suis judicibus," and gives him as an escort "Agripandum ducem Clusinum, nepotem suum, seu Tacipertum Castaldium et Remingum, Castaldum Tuscanensem." In spite of this apparent equality, however, it seems to me nearer the truth to consider the position of the gastald as an inferior one to that of the dux, especially in Lombard times, before that official was replaced by the comes of the Carlovingians.