f 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