alike of that power and of their old rulers. Such a position would not
be reached except by means of great struggles and by passing through a
period of great disintegration and of fierce internal strife between
opposing factions, such as in the history of the Italian communes is
represented by the dark period between the fall of the last of the
Carlovingians and the election of the first German emperor as king of
Italy; but once attained, the character of the people who accomplished
it would ensure its permanence, as long as they retained those
principles of independence which had made them victorious in the
struggle. After this short discussion, in which we have traced the
ultimate effects of the action of Charlemagne in changing the dukes
into counts, let us look at another feature in the field of city
government introduced by him, the new office of the _scabinus_ or city
judge.

According to the theory of judicial procedure among the Teutonic
nations, judgment in criminal cases was given in the open court or
_placitum_, where, besides the regular judges, all or any of the
freemen within its jurisdiction were supposed to concur in the
judgment and sentence. How far this method of arriving at judicial
decisions was carried out in practice depended largely on custom and
other local influences, and consequently varied greatly in different
countries and with different nations. I do not propose to enter into
the discussion[58] of the existence of these "judicators"[59] in
Lombardy in the eighth century, but will only say that it is certain
that before the Frankish conquest there did not exist a class of men
whose business it was to assist the judge in disposing of cases. If
through ignorance of the law or for other reasons he was unable to
come to a decision, "si vero talis causa fuit, quod ipse ...
deliberare minime possit,"[60] he could call some of the freemen to