legislation: the capitularies
16 Although the climate was unpropitious, the Frankish kings made important legislative efforts in the eighth and especially the ninth centuries. The restoration of the Roman empire in the West made legislation (�capitularies’) possible.
The capitularies? consist of various types of legal disposition, corresponding in today’s terms to statutes, orders, directives and regulations. Contemporaries already regarded the capitularies as an important element in legal practice, as the collections made during this period show. They contain very disparate material: little civil law, but numerous dispositions on criminal law, procedure and feudal law, as well as administrative directives, orders and regulations dealing with miliÂtary organization. The capitularies therefore reflect the attempts of sovereigns to order society, to improve administration and, under Christian influence, to protect their poorest subjects (pauperes) against their most powerful ones (potentes).Kings both protected the church and intervened in ecclesiastical affairs. This led them to promulgate numerous capitularia ecclesiastica (as opposed to capitularia mundana). Although these capitularies deal with ecclesiastical questions, they emanate from the Frankish kings and not from the ecclesiastical authorities, who held their own councils and promulgated their own decrees. After the coronation of Charlemagne, the entwining of the interests of church and state was a distinctive and a fundamental element in the organization of
r A royal constitution (capitulare, plural capitularia) was made up of several chapters (capitula) and this legislation owes its name to these �chapters’ (the title means little, since statutes, ordinances and charters were often made up of articles or �chapters’). The term capitulare appears for the first time in the reign of Charlemagne (cap.
de Herstal, in ad 779). Prior to this the terms decretum, edictum, praescriptio and others were used. medieval society. This went back in fact to the first Christian emperors, who had already intervened in the affairs of the church.Capitularia Iegibus addenda are a separate category: these were capitularies complementary to national laws which aimed, in conÂjunction with them, to establish legal unity within the empire. They are to be contrasted with capitularia per se scribenda (â€?self-justifying capitularies’), independent dispositions which were not ancillary to national laws.
Apart from their brevity (the average length is from ten to twenty articles), the capitularies differ significantly in form. Some are duly dated and begin with a solemn preamble, while others can be dated only approximately and contain neither initial protocol or eschato- col. Sometimes the text is not made up of sentences but simply of rubrics whose exact meaning can only be guessed: for instance â€?on fugitives, to whom one persists in giving hospitality’. This is the case with capitularia missorum, which are the verbal instructions of soverÂeigns to missi dominici, the royal messengers sent through the country to supervise the application of law or to introduce new rules. The essential point of their mission was explained to them orally, and what has come down to us of these capitularies is no more than an aide-memoire. The ideas of the time regarded the word of the king as the essential constitutive element which gave a document the force of law. This fits with the very ancient idea that the spoken word prevails over the written, not merely in legislation but also in contract and in evidence. The superiority now accorded to the written word is the outcome of an evolution which does not go back beyond the end of the Middle Ages.8
Capitularies, although they were promulgated by the king did not derive from his sole authority: the king did not legislate until he had obtained the support of a consensus, that is the agreement of the populus Francorum (the leading men of the kingdom), which was supposed to represent the Frankish people. The king always referred expressly to the consensus, but its true importance depended on the political situation and the balance of power.
When the sovereign was a powerful leader like Charlemagne, consensus was practically guaranteed in advance, whereas in the time of his grandson, Charles the Bald (whose political position was at times extremely insecure) the wishes of the aristocracy could not be ignored.8 This phenomenon is closely associated with cultural development; in the past people listened much more than they read, and even reading was done aloud.
Under the Merovingians, capitularies still played a modest part. The great period of capitularies coincides with the Carolingian dynasty which came to power in ad 751: it is the ninth century, and above all the reigns of Charlemagne (who after his coronation as emperor was deeply conscious of his legislative role), Louis the Pious and Charles the Bald. But already by the end of the ninth century capitularies had disappeared, first in the eastern kingdom, later in the West.9 The fact that they were proclaimed for the whole kingdom10 and applicable throughout it meant that they formed a law superior to the various tribal laws and were thus a factor in legal unification. On the European continent legislation on a kingdomÂwide scale disappeared after the capitularies; fresh attempts are to be found only in the twelfth century. In England, on the other hand, the national monarchy still promulgated important dooms in the tenth and eleventh centuries. The political unity OfEngland explains why the situation there was quite the reverse of that in Europe, where at the same time the political division of kingdoms was taking place.
The importance of capitularies was recognized very early on, and collections intended for court practice and other legal purposes were compiled. These unofficial collections, which almost all date from the ninth to eleventh centuries, merely repeat the capitularies in their original form, and provisions are left in historical rather than systematic order, even though a systematic arrangement would have had certain advantages.
Two collections became well known: that of Ansegisus, abbot of St Wandrille (ad 827), in which an article from one capitulary is sometimes transposed to a different context when the author thinks this more logical; and that of â€?Benedict the Levite’ (ad 847-52), a pseudonym under which the author brought together various legal sources (mainly ecclesiastical texts) in a collection which was intended to complement and continue the work of Ansegisus. Several of the documents in the collection of the Levite are either false capitularies or authentic sources which have been falsified; the falsifications largely relate to questions of the ecclesiastiÂ’ In the Frankish kingdom of the West (prefiguring France), the last capitularies date from ad 883 and 884; in the eastern kingdom (later, Germany) no capitulary was promulgated after the division of the empire (Verdun, ad 843); in Italy capitularies are rare after ad 875, and the last dates from AD 898.
,o Some capitularies were promulgated both for the Frankish and for the Lombard kingdoms; others were applicable only in one or the other of the two kingdoms (which were united in ad 774 by a personal union).
cal hierarchy, which was probably one of the main preoccupations of the author.