PART II. (continued 2)

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]

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.

* * * * *

AUTHORITIES REFERRED TO IN THE TEXT AND FOOT-NOTES.

Anastasius Bibliothecarius: Vitae Romanorum Pontificum. v. Muratori: Script. Rer. Ital., Tom. III., Pars I.

Baluzii, Stephanus: Capitular. Regum Francorum additae sunt Marculfi Monachi et aliorum formulae veteres. Parisiis, 1780. 2 vols. fol.

Bethmann-Hollweg: Schrift über den Ursprung der lombardischen Städtefreiheit.

Bouquet, Martin: Recueil des historiens des Gaules et de la France, etc. Paris, 1738-1855. 21 vols. fol.

Brunetti: Codice Diplomatico Toscano. Firenze, 1806.

Canciani, Paolo: Barbarorum Leges Antiquae, etc. Venetiis, 1781-1792. (Formulae Baluzii, Marcolfi & Mabillon.)

Chronica Farfensis. v. Muratori: Script. Rer. Ital., Tom. II., Pars II.

Eichhorn: Deutsche Staats- und Rechtsgeschichte. Gött., 1803-23.

Fumagalli, Angelo: Codice Diplomatico S. Ambrosiano. Milano, 1805.

Hegel, Carl: Geschichte der Städteverfassung von Italien. Leipzig, 1847.

Leo, Heinrich: Verfassung der lombardischen Städte. 1820.

Liutprandus Ticinensis: Opera, v. Pertz, Monum.; Script., Tom. III.

Lex Salica. v. Canciani: Barbar. Leg. Antiq., Tom. V.

Lupo, Mario: Codex Diplomaticus civitatis et ecclesiae Bergomatis, etc. Bergomi, 1784-1799. Vols. 2.

Mabillon: De Re Diplomatica. Parisiis, 1709. (General Collection.)—Annales Ordinis S. Benedicti. Parisiis, 1703-39.

Macchiavelli, Nicolo: Istorie Florentine, v. Delle Opere, Tom. II., ed. Milano, 1804.

Migne: Patrologiae Cursus Completus, etc. Series Latina.

Muratori: Scriptores Rerum Italicarum. Mediolani, 1723.—Dissertazioni sopra le Antichità Italiane, etc. Roma, 1755.

Otto (Freising): Chron.

Pertz: Monumenta Germaniae Historica, etc. (Diplom.; Leges; Script.)

Paulus Diaconus: De Gestis Langobard. v. Muratori: Script. Rer. Ital., Tom. I.

Savigny: Geschichte des Romischen Rechts im Mittelalter, etc.

Sismondi: Histoire des Républiques Italiennes du Moyen Age. Paris, 1840.

Tacitus: Germania.

Tiraboschi, Girol: Storia della Badia di S. Silvestro di Nonantula, etc. Modena, 1784-1785.

Tomasini, Ludov.: Dei Benefizii.

Tommasio: Historia sanese.

Troya: Delia Condizione dei Romani, etc.

Ughelli: Italia Sacra. 10 vols. fol. Venetiis, 1717-1722.

Collections of documents in the Archivii of many cities of Northern Italy.

N.B.—The above list is restricted to those works to which direct reference is made in the text and foot-notes.

FOOTNOTES:

[1:] Paulus Diaconus: De Gest. Lang., Lib. II., c. 32. v. Muratori: Script. Rer. Ital., T. I., p. 436. The Gothic system was to take one-third of the land itself from the conquered people; the Lombards on the other hand took one-third of the produce, "frugum."

[2:] With the growth of society and the increase of population, the milites gain added power, and become the "catanei," the barons of the period, or as some are pleased to call them, the "rural counts."

[3:] Tacitus: Germania, cap. xvi.

[4:] The Sagas say the Lombards came originally from Scandinavia. Their name is commonly derived from "Long-beard," but more probably came from words signifying "a long stretch of land." Their first appearance in history is during the first century of the Christian era, in the region of Magdeburg. All trace of them is then lost till they reappear in the fifth century on the banks of the Oder; they then go south to the river Theiss. They are in a constant state of war with the Gepidae, a tribe nearly as fierce as themselves, which strife is supposed to have been fomented by the eastern emperors. In the year 567 the Lombards, under their king Alboin, together with the Avars, begin to move into Pannonia from Dacia and the region of the Don. Kunnemund, the king of the Gepidae, is killed, and his conquered people merged in the race of their conquerors. In the next year, still victorious, they overrun Northern Italy.

[5:] Some of these cities were enabled to hold out for a considerable period. Pavia was not taken till 572.

[6:] To these seaports some of the functionaries of the inland towns, especially among the clergy, were able to effect their escape. For instance, the Archbishop of Milan fled to Genoa, and the Archbishop of Aquileja to Venice.

[7:] The Christianity of the Lombards of the invasion was of the Arian form. Autari, who reigned from 584 to 591, married Theodolinda of Bavaria, and she first introduced orthodox Christianity. At the death of Autari she married Agiluf (591-615) duke of Turin, who was an Arian, but who pursued a mediative policy. During his reign a double ecclesiastical system, with orthodox and Arian bishops side by side, was maintained.

[8:] Justinian gave him the right to exercise, in reference to each city, the functions of the governor of the province, during the latter's absence; and granted him jurisdiction in all cases not involving a larger sum than 300 aurei. He had a certain amount of authority in criminal matters, and two apparitors were attached to his person. The defensores had two guarantees for their power and their independence. 1. They had the right of passing over the various degrees in the public administration, and of carrying their complaints at once before the praetorian prefect; this freed them from the jurisdiction of the provincial authorities. 2. They were elected by the general body of the inhabitants of the municipium.

[9:] Paulus Diaconus: Lib. V., 7, 17, 18.

[10:] His words are: "Erano stati i Longobardi dugento ventidue anni in Italia, e di già non ritenevano di forastieri altro che il nome."—Nicolò Macchiavelli: Istorie Fiorentine, Lib. I. vid. Opere, Vol. III., p. 219 (ed. Milano, 1804).

[11:] It is difficult to draw any picture of the different ranks of society at this period, which would at once be perfectly accurate, and yet definite enough to give entire satisfaction to the student.

[12:] Geschichte des römischen Rechts im Mittelalter, passim.

[13:] Brunetti: Cod. Diplom. Toscan. Firenze, 1806, Docum. No. 44.

[14:] Idem. Docum. No. 8.

[15:] Brunetti: Cod. Diplom. Toscan. Docum. Nos. 6-10.

[16:] Idem. Docum. No. 43.

[17:] Liutprandi: Leg. Long. Prolog. Anni XVI. et XV. et al. Vid. Muratori: Script. Rer. Ital., Tom. I., P. II., p. 15, et seq.

[18:] Liutprandi: Leg. Prolog. Anni XIII. Vid. Muratori: Script. Rer. Ital., Tom. I., P. II., p. 15.

[19:] Crimoaldi: Leg. Prolog. Vid. Muratori op. cit. Tom. I., P. II., p. 49.

[20:] Liutprandi: Leg. Prolog. ad Lib. III. Vid. Muratori: Script. Rer. Ital., Tom. I., Pars II., p. 15.

[21:] Muratori: Script. Rer. Ital., T. II., Pars II.

[22:] Savigny: Gesch. des röm. Rechts im Mittelalter, S. 422 et al.

[23:] Muratori: Script. Rer. Ital., Tom. I., Pars II., p. 15.

[24:] Paulus Diaconus: De Gest. Langobard., Lib. III., cap. 16.

[25:] Brunetti: Cod. Diplom. Toscan. Docum. No. 6, anni 715.

[26:] Ibid.: Cod. Diplom. Toscan. Docum. No. 8, anni 715.

[27:] Ibid.: Docum. No. 11, anni 716.

[28:] Ibid.: Docum. No. 50, anni 756.

[29:] Muratori: Script. Rer. Ital., Tom. I., Pars II., p. 192E.

[30:] Muratori: Antiq. Ital. Diss. II., p. 186.

[31:] Muratori: Script. Rer. Ital., Tom. II., Pars II., p. 409.

[32:] In a donation to "Aimo Voltarius, abitator castrii Viterbii." Vid, Troya: Della Condizione, etc., p. 361. Docum. No. 6, anni 775.

[33:] Ughelli: Italia Sacra, Tom. III., p. 28.

[34:] Ibid.: Tom. II., p. 145.

[35:] The word palatium in the signification of fiscus is perhaps more frequently used by the Frankish kings than by the Lombard. See a privilegium granted to the nuns of the Posterla di Pavia by Lothar I. in the year 839, in which it appears that any one infringing its privileges must pay seventy pounds of the best gold, to be applied "medietatem Palatio nostro, et medietatem parti ejusdem monasterii." Vid. Muratori: Antiq. Ital. Diss. XVI., Tom I., P. I., p. 233. Also several diplomas of Charles the Fat, and others make use of the same term. The word camera for fiscus as the imperial treasury, was probably not used before the time of Lewis II.; the first authentic use of it in that sense being probably a diploma of that monarch of the year 894, where he says that one hundred pounds of gold are to be paid "medietatem Imperiali Camere et medietatem suprataxatae Angilberge." Vid. Muratori: loc. cit. p. 234.

[36:] From Otto of Freising, De Gest. Freder., Lib I., cap. 31, we know that the same distribution took place in Hungary, which was divided into seventy comitates; "et de omni justitia ad Fiscum Regium duas lucri partes cedere, tertiam tantum Comiti remanere."

[37:] Charlemagne: Leg. Lomb. Nos. 127 and 128.

[38:] Lex No. 128.

[39:] Muratori: Diss. Ant. Ital. Dissert. VIII., Tom. I., P. I., p. 96.

[40:] Muratori: Script. Rer. Ital., Tom. II., Pars II.

[41:] In illustration of this fact I will cite the names of some of the various taxes, dues and privileges, mention of which is found in the old documents. The feudal character of these will be apparent to the reader. Following the rough division indicated in the text, we have:

I. Under heading "Fines and Forfeitures":

1. Forfaturae: Forisfacturae, Multae (Mulcte), Freda, e.g. Leudis (Leudum) for homicide. Penalties and compositions for crime.

2. Scadentiae: Excadentia, Bona caduca. Publicum falls heir to various classes of individuals. Cf. Leg. Rhotari, No. 158 et al.

3. Lagan (Laganum). Seizure of shipwrecked goods by the state. Examples more common after year 1000 A. D.

II. Under the head of "Taxes and Privileges":

1. Onera Publica, or Angariae (Perangariae), Factiones publicae. a. Heribannum: Penalty for avoidance of military service. Cf. Charlemagne, Leges, No. 23 et al. b. Heribergum: Hospitality to Missi of emperor or king. Cf. Charlemagne, Leges, No. 128 et al. c. Mansionaticum (Mansiones, Evectio): Lodging for king and his ministers. Conjectum was a pro rata tax on a district so as to meet the expense. Cf. Lud. Pius, Leg. Nos. 54, 24, et al. loc. Tractoria gave specification of what should be provided in each case. For Formula, v. Marcolfo, Lib. I. d. Veredi (Paraveredi): Horses and beasts of burden for king and ministers. Cf. in Capitular. Reg. Franc. saepe. Capit. Lud. II., Ad Missos, etc. Census vehicularius, fiscalis or publicus was post to carry, free of expense, king's letters, etc. e. Foderum (Fodrum): Support of a king and his army in passing through a district. Cf. many privileges and exemptions to different churches and monasteries. Articles of the Peace of Constance. Some privileges to private persons.

2. Teloneum. a. Pedagium: General word for tolls on streets, roads, bridges, etc. [Greek: alpha]. Pontaticum, for bridges. [Greek: beta]. Portaticum, for gates. [Greek: gamma]. Platiaticum, for license to sell in market. [Greek: delta]. Casaticum, for houses. Cf. Otho II., Diploma to Monast. Volturno a. 983, et al. loc. b. Ripaticum: General word for tolls and taxes for transport by water. Cf. Diploma of Berenger II. v. Ughelli, Italia Sacra, Tom. V. Also a Privilegium of Charlemagne, anno 787. v. Ughelli, Italia Sacra, Tom. V., a. 787. This privilegium confirms the laws of Liutprand, and shows how much the inhabitants of Como had to pay in various places in moving salt down the rivers of Lombardy. [Greek: alpha]. Paliscitura, [Greek: beta]. Trasitura, [Greek: gamma]. Navium ligatura. Wharfage dues. [Greek: delta]. Portonaticum, harbor dues. [Greek: epsilon]. Curatura, probably a tax on certain merchandise. [Greek: zeta]. Passagio, probably same as preceding, but possibly a tax in favor of those going to the Holy Land.

8. Auxilia (Occasiones) (dues from vassals): a. Praestitiones. b. Dona. c. Gratuita. d. Mutua. More common after the year 1000 A.D.; but, for an example in the year 878, see a Diploma of Lewis II., published by Puricelli in his Monumenti della Basilica Arnbrosiana.

III. Under head of "lands owned by Crown or Publicum":

1. Terra Censualis. Holder of t.c. owed these duties: a. Glaudaticum, b. Escaticum, c. Herbaticum, d. Datio, e. Alpaticum, f. Agrarium. Payments for right to pasture cattle and swine on public lands. Cf. Chron. da Volturno, a. 972. Chron. Farfensis. Privileg. Lud. Pii, et al. loc. g. Terraticum, amount of produce given for right to cultivate. h. Pascuarium, payment for sheep pastured on the public land. i. Boazia, tax levied on every pair of oxen; probably not developed before XII. century.

The taxes and so forth mentioned in this list are by no means all that were levied, but are a fair representation of them. After the year 1000 their feudal character is even more strongly marked.

[42:] This statement, while true of all integral parts of the Lombard kingdom, must, however, be modified in regard to the great duchies of Spoleto and Beneventum, which were under a different system of internal government from the kingdom of Lombardy proper—were, in fact, small tributary kingdoms under great dukes enjoying practically royal powers. The Duchy of Beneventum seems to have been divided into gastaldata, divisions of territory similar to the civitates of Lombardy, but presided over by a gastald instead of by a dux or comes. In the charter of division made between the dukes of Beneventum and of Salerno in the year 851—v. Muratori, Ant. Ital. Diss. X.—are mentioned "integra gastaldata, seu ministeria Tarentum, Latinianum, Cusentia, etc." And, at an earlier date, Paulus Diaconus—De Gest. Long., Lib. V., cap. 29—tells of a certain "Alzeconis Dux de Bulgaris," to whom Grimoald, Duke of Beneventum, gives "ad habitandum … Lepianum, Bovianum et Inferniam, et aliis cum suis territoriis civitates; ipsumque Alzeconem mutato dignitatis nomine, de duce gastaldium vocari praecepit."

[43:] v. Muratori: Script. Rer. Ital., Tom. III., Pars II., p. 162D.

[44:] Liutprandi: Leg. Lib. VI., Leg. 29. v. Muratori: Script. Rer. Ital., Tom. I., Pars II.

[45:] Muratori: Ant. Ital. Diss. X., Vol. I., P. I., p. 121.

[46:] Muratori: Script. Rer. Ital., Tom. III., p. 155A.

[47:] Ed. Rhotari: Leg. 23 and 24. v. Muratori: op. cit., Tom. I., Pars II.

[48:] Liutprandi: Leg. Lib. IV., 7.

[49:] Liutprandi, Leg. Lib. IV., 8, says: "Si homines de sub uno Judice, de duobus tamen Sculdahis causam habuerint, etc."

[50:] Paulus Diaconus: De Gest. Lang., Lib. VI., 24.

[51:] Muratori: Ant. Ital. Diss. X., Vol. I., Parte II., p. 116.

[52:] Ughelli: Italia Sacra, Tom. V.

[53:] Caroli Magni, Leg. Lomb. 36: "Ut nullus homo in Placito Centenarii neque ad mortem, neque ad libertatem suam amittendam, aut res reddendas vel mancipia judicetur. Sed ea omnium in praesentia Comitum, vel Missorum nostrorum, judicentur."

[54:] Liutprandi: Leg. Lib. V., 15.

[55:] Chronicon Fontanellense, Cap. I. v. Muratori: Ant. Ital. Diss. X., Vol. I., Parte I., p. 117.

[56:] Rachis, a decree of—existing in the Monast. of Bobbio. v. Muratori: Aut. tal. Diss., Vol. I., Part I., p. 118 (Diss. X.).

[57:] Liutprandi Ticinensis: Historia, Lib. I., cap. 10. v. Muratori: Script. Rer. Ital. II., p. 431. Pertz, Monum.; Script., Tom. III.

[58:] The opposite sides of the question are ably presented by Savigny: Geschichte des Röm. Rechts, etc., Vol. I., p. 230 et seq. (trans.), and Hegel; Städteverfassung v. Italien, etc., I., page 470, note.

[59:] It is difficult to find an English word which intelligently renders the various names for these freemen in their judicial capacity, used by the different nations, such as arimanni, rachinburgi, boni homines, etc. Most English writers make use of the German word schöppen. I have taken the rendering "judicators" from Edward Cathcart, the translator of the first volume of Savigny's Geschichte des Römischen Rechts im Mittelalter.

[60:] Liutprandi: Leg. 25, Lib. IV., 7.

[61:] Rachis: Leg. No. 11.

[62:] Savigny: Geschichte, etc., Vol. I., p. 233, trans.

[63:] Preserved in the Archives of Farfa. Published by: Mabillon: Annales Ord. S. Benedicti, Tom. II., p. 154. Muratori: Script. Rer. Ital., Tom. II., Pars II., p. 341.

[64:] We have confirmation of this from a document of the early part of the ninth century, which says: "De Vicariis et Centenariis qui magis propter cupiditatem quam propter justitiam faciendam saepissime placita tenent, et exinde populum minus affligunt, ita teneatur … ut videlicet in anno tria solummodo generalia placita observent et nullos eos amplius placita observare compellat." From Worms Capitulary of Lewis the Debonnair, a. 829, c. 5. Also compare: Capit. V., anni 819, Art. 14. Capit., Lib. IV., c. 57. (Baluzii, 616 infr., 788 supr.) Caroli Magni, Leg. Long. 69. (Canciani I., 157.)

[65:] Brunetti: Cod. Diplom. Toscan. Doc. No. 18.

[66:] Bouquet: Rerum Ghillicarum et Francicarum Scriptores.

[67:] Baluzii: Capit. Reg. Franc. a. 789, Tom. V., p. 746.

[68:] Capit. I., Art. 13, anni 813. v. Baluzii: Capit. Reg. Franc., Tom. I., p. 509.

[69:] Muratori: Ant. Ital. Diss. X., Vol. I., Pars I., p. 115.

[70:] Caroli Magni: Leg. Long. No. 92.

[71:] Sismondi: Rep. Ital. du Moyen Age, Vol. I., p. 268.

[72:] Capit. II., anni 819, Art. 2. v. Baluzii: Capit. Reg. Franc., Tom. I., p. 605.

[73:] Loc. cit. sup.

[74:] Caroli Magni: Leg. Long. No. 116.

[75:] Caroli Magni: Cap. Minora, anni 803, c. 20.

[76:] "Adjutores Comitum, qui meliores, et veraciores inveniri possunt." Lothar I.: Leg. No. 49. v. Muratori: Ant. Ital. Diss. X., Vol. I., Parte I., p. 112.

[77:] Caroli Magni: Capit. I., anni 809, Art. 22. v. Baluzii: Capit. Reg. Franc. I., 466 infr.

[78:] Lothar I.: Capit. anni 873, Art. 9. v. Baluzii: Capit. Reg. Franc. Tom. II., p. 232. Leg. No. 48. v. Muratori: Diss. X., Vol. I., P. I., p. 112.

[79:] Muratori: Ant. Ital. Diss. LXXVII., Tom. III., Parte II., p. 189.

[80:] Vid. Tommasio: Historia sanese, Lib. IV.; Ughelli: Italia Sacra, Tom. III., for this privilege.

[81:] Brunetti: Cod. Diplom. Toscan. No. 8, a. 715. A priest named Gunthram says: "Nec cumquam ab episcopum Senensem coridicionem habuimus, nisi, si de seculares causas nobis oppressio fiebat, veniebamus ad judicem Senensem, eo quod in ejus territorio sedebamus."

[82:] Brunetti: Cod. Diplom. Toscan. No, 8, a. 715. Germanus, a deacon, says: "Quoniam prelectus a plebe, cum epistola Warnefried [the Gastald of Siena] rogaturus ambulavi ad Luperceanum Aretine Ecclesie Episcopum et per eum consecratus sum."

[83:] For example see a judgment of the year 771, in the Archivio of Lucca. For which vid. Muratori: Ant. Ital. Diss. LXX., Tom. III., P. II., p. 184.

[84:] Good illustrations of all these statements are to be found in two documents in the Archivio Archivescovile of Lucca, of about the year 813. Vid. Muratori: Ant. Ital. Diss. LXX., Tom. III., Parte II., p. 184.

[85:] Codex Carolinus—Adriani I., Epist. Nos. LV., LXXIX., LXXII., L.

[86:] Ermoldi Nigelli: Poema. V. Muratori: Script. Rer. Ital., Tom. II., Pars II.

[87:] Muratori: Ant. Ital. Diss, LXX., Vol. III., Parte II., p. 188.

[88:] Pertz: Monum. German., Tom. IV., p. 176.

[89:] It is true that Muratori (Script. Rer. Ital., Tom. I., Pars II., p. 192) publishes a diploma to the monastery of Novantulanum, near Modena, purporting to be by Aistulf and of the year 753; and (in Ant. Ital. Diss. LXXI., Vol. III., P. II., p. 256) another by Desiderius to the monastery of Santa Giulia di Brescia, which seems to grant exemption and protection if not privilege. But in the first the formula employed is so exactly similar to that of the later Frankish documents issued for the same purpose, as immediately to excite suspicion; and in the second, Muratori himself finds something radically wrong with the chronology.

[90:] An even better example can be found among Charlemagne's diplomas, by referring to one granted by him to the church of Reggio, and published by Ughelli: Italia Sacra, Tom. V., Appendice.

[91:] See a charter given by Lothaire to Pietro, bishop of Arezzo in 843, the year of the Treaty of Verdun, v. Muratori: Ant. Ital. Diss. LXX., Vol. III., Parte II., p. 196.

[92:] See a law of Lewis II. of 855, made in the Diet of Pavia. v. Muratori: Script. Rer. Ital., Tom I., P. II. (added to Leg. Lomb.).

[93:] Certain "dona," however, supposed to be voluntary, were always excepted. See a diploma of Louis of the year 854 to the monastery of St. Gall in Germany, where it describes the usual "dona" for all monasteries as "Caballi duo cum scuteis et lanceis." v. Muratori: Ant. Ital. Diss. LXX., Vol. II., Part II., p. 204.

[94:] See a privilegium given by him in the year 877 to the nuns of the Posterla, Sta. Teodata at Pavia. v. Ughelli: Italia Sacra, Tom. V.

[95:] Muratori: Ant. Ital. Diss. LXX., Vol. III., Parte II., pp. 196, 197.

[96:] Probably the earliest of such privileges was one granted to the bishop of Modena by Guido in the year 892, and published by Ughelli: Italia Sacra, Tom. II., p. 98.