epended 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
assist him: "advocis [advocet] alios ... qui sciunt judicare,"[61]
etc., but this seems, in later times at any rate, to have been a
privilege to be used at discretion, and the persons summoned were not
regularly appointed officers of the court. The Lombard codes are
silent with regard to these indicators; but Savigny,[62] in his
argument to prove their existence, claims that mention is made of them
in two decisions of Liutprand of the years 715 and 716, and brings as
additional evidence a _placitum_ of 751[63] in which Lupo, duke of
Spoleto, gives judgment "una cum judicibus nostris ... vel aliis
pluribus astantibus," etc. It is of more importance for us, however,
to determine the reasons for the introduction into Italy by
Charlemagne of the new office of the _scabinus_, than to lose
ourselves in a complicated discussion of the theoretical predecessors
of these officers.

The introduction of this new feature into city government seems to
have been the result of an attempt to correct certain abuses in the
exercise of power by the duke or head of the courts of the _civitas_.
The duke had the right, as we know, to summon all the freemen in his
jurisdiction to his _placita_, and to fine them according to the law
if they failed to answer his summons. The fines collected in this
manner formed a substantial part of the revenues of the _judex_
imposing them, and consequently arose the abuse, which seems to have
been a great cause of complaint in the eighth century, that the
freemen were summoned to attend _placita_ at frequent intervals during
the year, when there was no business of any importance to transact,
and when the sole object of the summons was to furnish an excuse for
imposing the fine. An attempt to remedy this injustice was made when
the number of _placita_ which any one _judex_ could hold du