Capitularies

CAPITULARIES: A term which designates a certain class of royal edicts in the Carolingian period, and which is frequently employed not only for the Carolingian capitilaria but also for the edicta, præceptiones, decreta, or decretiones of the Merovingian kings and the mayors of the palace under Arnulf. They are distinguished from the other class of diplomata or mandata, not so much by the division into chapters, from which they get their name, or by the general nature of their provisions as by their form and by the absence of any attestation in the way of signatures or seal. This absence is explained by the fact that they were either put into execution by the kings in person or had to pass through the hands of officials. They attained their highest importance under Charlemagne, and were scarcely less used under Louis the Pious; after his death they ceased in the East Frankish kingdom, to be kept up for a while in the West Frankish and in Italy by his sons and grandsons, disappearing here also toward the end of the ninth century. They contain partly instructions for officials, especially the missi dominici, and partly supplements or modifications of the old tribal law; but to a still greater extent they are substantive regulations for all departments of both secular said ecclesiastical life. The former include the most diverse matters, of administration, commerce, the army, markets, coinage, tolls, protection against robbers, etc. These substantive regulations go deeply into not merely the external organization of the Church and its relation to the temporal power, but also the monastic system, education, church discipline, and even liturgical matters.

The origin of the capitularies and the basis of their authority have been much discussed. The prevalent view, derived in the first instance from Boretius, distinguishes between capitularia legibus addenda and per se scribenda, which means practically a class of laws originating (like those specifically known as leges) in the assent of the whole people, and another class originating from the king alone, at most with the advice of the nobles assembled in a diet. But there seems to be no sufficient ground for this distinction between popular and royal law; in so far as there is any contrast between leges and capitularia, it may be fully explained by the special reverence which was felt for the ancient tribal law. In the cases in which the capitularies do not contain merely instructions to officials, they were less legislative enactments than promulgations of a law already existing. This law, so far as we can trace its origin, came into being with the assent of the temporal and spiritual lords, assembled in diets or synods. But the diet must not be conceived of as a representative assembly of the whole people; its decisions were held to be binding upon the individual by virtue of his allegiance to the sovereign, and the period of the capitularies is precisely that in which the oath of allegiance was most punctiliously required from all adults within the empire. The multiplication of capitularies led before long to the need of codification; for the collection made by Ansegis of Fontanella, see Ansegis, and for the forged capitularies appended to his collection by Benedictus Levita, see Pseudo-Isidorian Decretals.

(Siegfried Rietschel.)

Bibliography: Critical editions of the Capitularia regum Francorum, ed. G. H. Pertz, are in MGH, Legum, i., ii., 1835, 1837; and, ed. A. Boretius and V. Krause, ib. Leg., sectio II. i., ii.,1883–97 (cf. A. Boretius, in GGA, 1882, pp. 65 sqq., 1884, pp. 713 sqq.). Consult: A. Boretius, Die Kapitularien im Langobardenreich, Halle, 1864; idem, Beiträge sur Kapitularienkritik, Leipsic, 1874; R. Sohm, Die fränkische Reichs- und Gerichtsverfassung, pp. 102 sqq., Weimar, 1871; Fustel de Coulanges, De la confection 409des lois au temps des Carolingiens, in Revue historique, iii. (1878) 3 sqq.; M. Thévenin, Lex et capitula, in Mélanges de l’école des hautes études, pp. 137 sqq., 1878; H. Brunner, Deutsche Rechtsgeschichte, i. 539 sqq., Leipsic, 1906; E. Glasson, Histoire du droit et des institutions politiques et administratives de la France, i. 281 sqq., Paris, 1890; G. Seeliger, Die Kapitularien der Karolinger, Munich, 1893; R. Schröder, Lehrbuch der deutschen Rechtsgeschichte, pp. 253 sqq., Leipsic, 1902.