We know that Matilda, after the fashion of her predecessors, administered justice in the name of the Empire, presiding in state over the tribunals. Indeed, this was one of her chief functions. Some sentences given by her have survived, and serve to show us how her tribunal was composed. Certain high feudatories had seats flanking her throne; next came the judges, assessors, pleaders (causidici), and witnesses, and lastly, the notary. Prof. Lami has observed that the judges, and more particularly the assessors, were changed as the countess moved from city to city, which would prove that not a few of them were inhabitants of the towns wherein they administered justice.90 In fact, what names do we find among them in Florence? Those of the Gherardi, Caponsacchi, Uberti, Donati, Ughi, and a few others.91 These were already the first and most influential citizens, the boni homines, the sapientes, the men we afterwards find officiating as Consuls. Thus there were certain families who first formed part of the margravial tribunal, and were afterwards at the head of the Commune.
Political changes were facilitated and prepared by a juridical change, followed by the increased action of the revived Roman law. What was the nature of this change? The exact definition of the functions respectively assigned by the Germanic code to the president of the tribunal who gave sentence, or to the judges who led up to the same by administering the law, had been gradually lost sight of. Sometimes the countess pronounced sentence without the aid of judges; but more often they conducted the trial, applied the law, and formulated the verdict, to which the countess merely gave assent. Thus, as Ficker states, her office was reduced to that of a passive president.92 This is confirmed on seeing that tribunals sometimes sat in her absence, when the trials were entirely managed by the judges. A method of this kind once adopted, Matilda's grave and numerous affairs of State, together with the continual warfare in which she was involved, must have augmented the number of the cases settled by local judges. This must have been a matter of weighty importance at a time when the administration of justice was one of the principal attributes of political sovereignty. Hence these citizen tribunals are a precursory sign of civic independence before the Commune had asserted its real autonomy and individual position. The strange dearth of documents certifying that any tribunal in Florence was presided over by Matilda during the last fifteen years of her life, serves to confirm our remarks. A similar fact is also verified in the Tuscan cities remaining faithful to the Empire; for these too had tribunals in which justice was administered, not by feudal potentates, but by citizens invested by the emperor with judicial authority.93 These, too, served as a preliminary to communal independence, although hardly forming, as some thought, its actual beginning.
DESCENT TO A ROMAN WELL.
Discovered beneath the Campidoglio, Florence
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It is certain that in this and other ways, during the contest between Henry IV. and Matilda, many Tuscan cities, siding either with the Empire or the Church, and therefore highly favoured by the one or the other, were able to achieve a commencement of freedom. After Henry IV. had defeated Matilda near Mantua in 1081 he granted large privileges to Pisa and Lucca, in return for their proofs of goodwill to his cause. In a letter patent issued at Rome June 23, 1081, he not only guaranteed to Lucca the integrity of its walls, but also authorised it to forbid the construction of any castles in the city or territory within a circuit of six miles, and promised to exempt it from building an Imperial palace. He likewise declared that no Imperial envoy should be sent to give judgment in Lucca, but made a reservation in case of the personal presence there of the emperor, or his son, or his chancellor. In conclusion, he annulled the "evil customs" (perverse consuetudini) imposed by Bonifazio III.94 to the hurt of Lucca, and granted it full permission to trade in the markets of San Donnino and Capannori, from which he expressly excluded the Florentines. This final clause not only proves the hostility of the Empire to Florence, but the importance the latter's trade must have assumed by that time. In the same year Pisa received a patent guaranteeing the maintenance of its ancient rights, and Henry declared that no Imperial envoy belonging to another territory should be sent to plead suits within the walls, or within the boundaries of its contado. And, what was still more to the point, he also declared that no marquis should be sent into Tuscany without the consent of twelve buoni uomini chosen by the popular assembly, summoned in Pisa by sound of bell.95 Here, if no Consuls yet appear on the scene, we already find their precursors in these worthies, or sapientes, elected of the people, and we have already a popular assembly. Even though the Commune be still unborn, its birth is now, as it were, in sight. Further (provided nothing was interpolated in the document), it is most remarkable to find the appointment of an Imperial margrave subject to the sanction of the people. There is also a hinted desire—unattainable during Matilda's life—to assume the government of the margraviate in person; after her death an attempt to this effect was actually made, but, as we shall see, with very brief and partial success.
III.
Nevertheless the condition of Florence was considerably different from that of Pisa or Lucca. These two cities, as we have seen, had long enjoyed greater prosperity. They had often fought against each other; Pisa, haughty and daring by sea, had begun, even in the middle of the tenth century, a long and arduous war against the Mussulmans96 of Sicily, Spain, and Africa. Florence, on the other hand, in siding with Matilda, became necessarily the foe of all the great feudal nobles of the contado, surrounding the city on all sides, and who, disgusted by their treatment at the hands of the marquises of Tuscany, since the time of Bonifazio III., now, for the most part, adhered to the Empire. Their antagonism towards the Florentines was not only heightened by the fact of these nobles being of Germanic origin, even as feudal institutions were Germanic, whereas the population of Florence, consisting chiefly of artisans, was of Roman origin and full of Roman traditions; but it was likewise increased by the geographical position of the city. Had Florence been situated in a plain like Pisa and Lucca, or like Sienna and Arezzo on a height, the feudal nobility could have promoted their interests better by settling within its walls. But it lay in a valley in the midst of a girdle of hills bristling with feudal turrets, whence the nobles threatened it on all sides, raiding its lands and closing all outlets for its commerce.
These geographical conditions had no slight effect on the future destiny of Florence; and, in fact, largely contributed to form the special character of its history. As a primary result, conflict between the feudal nobles and the city was more inevitable and more sanguinary than elsewhere, while the city being, from the first, of far more democratic temper than the rest, was therefore longer prevented from asserting its independence, since this result could only be achieved when Florence had gained sufficient strength to cope with the numerous enemies girding it about. Until that moment arrived its interests were best forwarded by remaining friendly and submissive to Countess Matilda, the only power able to hold the barons in check, and the loss of whose aid would have left Florence a prey to its foes. This explains not only the city's delay in asserting its independence, but also the total lack of documents