§ 90. The Capitularies of Charlemagne.

Steph. Baluzius (Baluze, Prof. of Canon law in Paris, d. 1718): Regum Francorum Capitularia, 1677; new ed. Paris, 1780, 2 vols. Pertz: Monumenta Germaniae historica, Tom. III (improved ed. of the Capitularia). K. Fr. Eichhorn: Deutsche Staats-und Rechtsgeschichte, Göttingen, 1808, 4 Parts; 5th ed. 1844. J. Grimm: Deutsche Rechtsalterthümer, Göttingen 1828. Giesebrecht (I. 800) calls this an “unusually rich collection with profound glances into the legal life of the German people.” W. Dönniges: Das deutsche Staatsrecht und die deutsche Reichsverfassung, Berlin 1842. F. Walther: Deutsche Rechtsgeschichte, second ed. Bonn 1857. J. Hillebrand: Lehrbuch der deutschen Staats-und Rechtsgeschichte, Leipzig 1856. O. Stobbe: Geschichte der deutschen Rechtsquellen, Braunschweig, 1860 (first Part). W. Giesebrecht: Geschichte der deutschen Kaiserzeit, third ed. Braunschweig 1863 sqq. Bd I. 106–144.

The first and greatest legislator of the Germanic nations is Charlemagne, the founder of the Holy Roman Empire (800–814). What Constantine the Great, Theodosius the Great, and Justinian did for the old Roman empire on the basis of heathen Rome and the ancient Graeco-Latin church, Charlemagne did for the new Roman Empire in the West on the basis of Germanic customs and the Latin church centred in the Roman papacy. He was greater, more beneficial and enduring in his influence as a legislator than as a soldier and conqueror.⁴¹²⁴¹²    The same may be said of Napoleon I., whose code has outlived his military conquests. He proposed to himself the herculean task to organize, civilize and Christianize the crude barbarian customs of his vast empire, and he carried it out with astonishing wisdom. His laws are embodied in the Capitularia, i.e. laws divided into chapters. They are the first great law-book of the French and Germans.⁴¹³⁴¹³    Giesebrecht (I. 128): ”Ein Riesenschritt in der Entwicklung des deutschen Geistes geschah durch Karls Gesetzgebung … Mit Ehrfurcht und heiliger Scheu schlägt man die, Capitularien des grossen Kaisers auf, das erste grosse Gesetzbuch der Germanen, ein Werk, dem mehrere Jahrhunderte vorher und nachher kein Volk ein gleiches an die Seite gesetzt hat. Das Bild des Karolingischen Staates tritt uns in voller Gegenwärtigkeit hier vor die Seele; wir sehen, wie Grosses erreicht, wie das Höchste erstrebt wurde.“ They contain his edicts and ordinances relating to ecclesiastical, political, and civil legislation, judicial decisions and moral precepts. The influence of the church and the Christian religion is here more direct and extensive than in the Roman Code, and imparts to it a theocratic element which approaches to the Mosaic legislation. The Roman Catholic church with her creed, her moral laws, her polity, was the strongest bond of union which held the Western barbarians together and controlled the views and aims of the emperor. He appears, indeed, as the supreme ruler clothed with sovereign authority. But he was surrounded by the clergy which was the most intelligent and influential factor in legislation both in the synod and in the imperial diet. The emperor and his nobles were under the power of the bishops, and the bishops were secular lords and politicians as well as ecclesiastics. The ecclesiastical affairs were controlled by the Apocrisiarius⁴¹⁴⁴¹⁴    Also called Archicapellnus, Archicancellarius (a sort of minister of worship); the secular affairs, by the Comes palatii;⁴¹⁵⁴¹⁵    Pfalzgraf. both were aided in each province by a delegated bishop and count who were to work in harmony. On important questions the pope was consulted.⁴¹⁶⁴¹⁶    Hence many Capitularies are issued ”apostolicae sedis hortatu, monente Pontom, ex praecepto Pontificis.“ At the Synod of Francfort in 794 two delegates of Pope Hadrian were present, but Charlemagne presided. See Mansi XVIII. 884; Pertz, Monum. I. 181. The legislation proceeded from the imperial will, from ecclesiastical councils, and from the diet or imperial assembly. The last consisted of the dignitaries of church and state, the court officials, bishops, abbots, dukes, counts, etc., and convened every spring. The emperor was surrounded at his court by the most eminent statesmen, clergymen and scholars, from whom he was anxious to learn without sacrificing his right to rule. His court was a school of discipline and of that gentlemanly courtesy and refinement which became a distinguishing feature of chivalry, and Charlemagne shone in poetry as the first model cavalier.

The legislation of the Carolingian Capitularies is favorable to the clergy, to monasteries, to the cause of good morals and religion. The marriage tie is protected, even among slaves; the license of divorce restrained; divorced persons are forbidden to marry again during the life-time of the other party. The observance of Sunday is enjoined for the special benefit of the laboring classes. Ecclesiastical discipline is enforced by penal laws in cases of gross sins such as incest. Superstitious customs, as consulting soothsayers and the Scriptures for oracles, are discouraged, but the ordeal is enjoined. Wholesome moral lessons are introduced, sometimes in the language of the Scriptures: the people are warned against perjury, against feud, against shedding Christian blood, against the oppression of the poor (whose cause should be heard by the judges before the cause of the rich). They are exhorted to learn the Apostles’ Creed and to pray, to love one another and to live in peace, “because they have one Father in heaven.” Cupidity is called “a root of all evil.” Respect for the dead is encouraged. Hospitality is recommended for the reason that he who receives a little child in the name of Christ, receives him.

This legislation was much neglected under the weak successors of Charlemagne, but remains a noble monument of his intentions.