(scavini, tam romani quam salici).^115 But scabini, advocati, testes, and
judicesmultiplied everywhere, their roles ill-distinguished.^116 And along
with this proliferation of lawyers there appeared a new type of legal
wrong (tortum, ‘tort’): the false complaint or pleading which was quite
logically presumed of those who lost their cases. A defeated plaintiff
was liable to a fine, which we know about because Charles the Bald
exempted the advocates of privileged monasteries from illud quod vulgo
dicitur tortum.^117
Charlemagne was not truly able to create a staff of impartial
assessors for his courts: the scabiniremained local freeholders, whose
private interests were inextricable from their judicial functions.^118 Yet as
scavini, échevins, or Schöffen, they continued to perform a role in Italy,
France, and Germany long after the disappearance of the empire which
they were devised to serve; and Charlemagne did manage to establish
some lasting principles for the administration of justice by judges at all
levels. Trials affecting a man’s personal freedom or landed property (his
two most treasured possessions) were to be held before superior justices:
the count and the missi dominici. But all judiceswere enjoined to resist
the influence of magnates, and judge justly according to written law, not
‘their own arbitrary opinion’. This fundamental rule, enshrined in a
capitulary of 802, brought together the written instruments of land-
holding and its adjudication, and the codes of territorial law into which
Charlemagne was at that moment turning barbarian customs, and set
them apart as the true sources of law. Other more specific rules of great
importance would be deducible from it: such as the rule of English law
that no one could be made to answer for his freehold except by royal
writ.^119
To begin with, the order of the Carolingian and Anglo-Saxon king-
doms had been essentially the regulation of the landholding of the few
great churchmen and lay magnates on whom kings relied for the rule of
their kingdoms. This was an order enshrined in simple rules of legal
procedure. Allegation or denial of disorderly behaviour was a formal
requirement to get your case heard in a royal court or to escape its
36 Frankish and Anglo-Saxon Justice
(^115) P. M. Conti, ‘ “Exceptores” e “cives” ’, Studi Medievali, 3rd ser. 23 (1982), 101–50;
S. Weinberger, ‘Cours judiciaires, justice et responsabilité sociale dans la Provence médiévale:
ixe–xiesiècle’, Revue Historique, 267:2 (1982), 273–88, at p. 277;
(^116) Estey, ‘Scabiniand the Local Courts’, 121; for scaviniacting as advocates and on
inquests, see for example I Placiti del ‘Regnum Italiae’, 320.18, 321–2, ii. 505–8.
(^117) Niermeyer, lexicon minus, sub v. tortum; Recueil des Actes de Charles II Le Chauve, i.
- 4 , ii. 336. 13.
(^118) Estey, ‘Scabini and the Local Courts’ , 124–5.
(^119) Capitularia, i. 93 (c. 9), 96 (cc. 25–6), 153 (c. 3), 154 (c. 15); Ganshof, The Carolingians
and the Frankish Monarchy, 150–1, 159; for the writing-down and correction of the laws, see
Capitularia, i. 105, and Einhard, Vita Karoli Magni, ed. O. Holder-Egger, MGH Scriptores
rerum Germanicarum 25 (Hanover, 1911), 24–5 (ch. 29); S. F. C. Milsom, The Legal Frame-
work of English Feudalism(Cambridge UP, 1976), 46.