free consent of the people was always necessary to make valid the
appointment of any incumbent. According to the ideas and customs of
the eighth century, such a method of procedure would represent a
fairly popular election; for we know well that in the times of the
greatest freedom, the Teutonic idea of a popular vote never went
beyond the mere expression of assent or dissent by the assembled
freemen. The initiative was always left to the king or chief who
conducted the meeting, just as much as it was in the ancient assembly
held on the classic plains of Troy. In a capitulary[77] of Charlemagne
of the year 809 it is decreed: "ut Scabini boni et veraces cum Comite
et populo elegantur et constituantur": and more specific directions
are given by Lothar I. in the year 873, in case of a _scabinus_ found
to be an unjust judge. He says:[78] "ut Missi Nostri ubicumque malos
scabinos invenerint ejiciant, et totius populi consensu in loco eorum
bonos eligant." From this latter example we see that the _missi_ had
the power of dismissal "for cause," as well as of nomination. In fact,
the king and his ministers, in the interests of impartial justice,
kept constant watch on the acts and judgments of the _scabini_, and a
law of Lothar I. tells us that "quicumque de Scabinis deprehensus
fuerit propter munera, aut propter amicitam injuste judicare" should
be sent up to the king to render an account of the manner in which he
had fulfilled the duties of his office.

Such then were the duties, the privileges and the restrictions of the
first magistrate to whom we could venture to ascribe any of the
attributes of a popular judge: a representative of the people at the
assembly of their ruler; a judge of their suits and of their misdoings
at home, and a check on the arbitrary power of their lord and feudal
superior,--we can readily appreciate that the existence of such an
officer within the city must have exercised some influence in giving