In the old Lombard constitution we have seen the gastald, chiefly, however, in the matter of judicial decisions, exercise a controlling influence on the arbitrary action of the duke; but as the power of the count varied from that of the duke, so that of the _scabinus_ differs from that of the gastald, only perhaps in a greater degree. At the time when the count assumes the place of his predecessor the duke, the _scabinus_ displaces the gastald, although he cannot be said to have assumed exactly the same position as the latter, nor to have filled it in precisely the same way. The _scabinus_ did not have, of course, any direct limiting control over the actions of the count; for any such power in the hands of a body of lesser officers would have been alike contrary to the spirit of feudalism which characterized the age, and impossible to its forms; but being the principal judicial functionaries of the district, into their hands fell most of the cases which formerly went to the _placita_ of the count; and while the wish of the great emperor, that even the meanest subject of the realm should receive impartial justice at their hands, might have failed in its effect, its fulfilment was made more sure by the method prescribed for the election of the officers whose duty it was to execute it.[76]
In describing the method by which the _scabini_ gained their office, I am in some doubt as to the proper terms to be employed. I have just made use of the word "election," but cannot let it stand without some qualification. It was not an election in the strict sense of the word as we now understand it, but it was as near an approach to a popular choice as was possible in the age in which it existed. The citizens of a municipality did not nominate and elect by their votes a popular magistrate, as some writers would have us believe; for such a proceeding would have been an anomaly in the eighth century under the rule of a Frankish emperor. But the people had a voice, and from the frequent mention of their intervention it would seem an important voice, in the selection of those who were to be their judges, and who were to assist in representing them in the royal assembly. The original appointments were made by some higher power, in most cases the _missi regii_, the direct representatives of the king; but these were made not arbitrarily, but always "cum totius populi consensu." This was the important point; it was so far a popular office that the 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.