[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.
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