Capitulary in Europe

Charlemagne: Carolingian Capitularies (Orders by Rulers)

Ecclesiastical Sanctuary

Capitulary for Saxony 775-790: 2. If any one shall have fled to a church for refuge, let no one presume to expel him from the church by violence, but he shall be left in peace until he shall be brought to the judicial assemblage; and on account of the honor due to God and the saints, and the reverence due to the church itself, let his life and all his members be granted to him. Moreover, let him plead his cause as best he can and he shall be judged; and so let him be led to the presence of the lord king, and the latter shall send him where it shall have seemed fitting to his clemency.

Ecclesiastical Property

Capitulary for Saxony 775-790: 3. If any one shall have entered a church by violence and shall have carried off anything in it by force or theft, or shall have burned the church itself, let him be punished by death.

Fasting during Lent

Capitulary for Saxony 775-790: 4. If any one, out of contempt for Christianity, shall have despised the holy Lenten fast and shall have eaten flesh, let him be punished by death. But, nevertheless, let it be taken into consideration by a priest, lest perchance any one from necessity has been led to eat flesh.

Murder of Clergy

Capitulary for Saxony 775-790: 5. If any one shall have killed a bishop or priest or deacon, let him likewise be punished capitally.

Death to those who are not baptized

Capitulary for Saxony 775-790: 8. If any one of the race of the Saxons hereafter concealed among them shall have wished to hide himself unbaptized, and shall have scorned to come to baptism and shall have wished to remain a pagan, let him be punished by death.

Opposition to Christians and Christianity

Capitulary for Saxony 775-790: 10. If any one shall have formed a conspiracy with the pagans against the Christians, or shall have wished to join with them in opposition to the Christians, let him be punished by death; and whoever shall have consented to this same fraudulently against the king and the Christian people, let him be punished by death.

Baptism within a year

Capitulary for Saxony 775-790: 19. Likewise, it has been pleasing to insert in these decrees that all infants shall be baptized within a year; and we have decreed this, that if any one shall have despised to bring his infant to baptism within the course of a year, without the advice or permission of the priest, if he is a noble he shall pay 120 solidi to the treasury, if a freeman 60, if a litus 30.

Monastic Discipline

Capitulare Missorum c. 17 (A.D. 802): “Moreover, that the monks shall live firmly and strictly in accordance with the rule, because we know that any one whose goodwill is lukewarm is displeasing to God, as John bears witness in the Apocalypse: “I would that thou wert cold or hot. So then, because thou art lukewarm, and neither cold nor hot, I will spit thee out of my mouth.” Let them in no way usurp to themselves secular business. They shall not have leave to go outside of their monastery at all, unless compelled by a very great necessity; but nevertheless the bishops, in whose diocese they shall be, shall take care in every way that they do not get accustomed to wandering outside of the monastery.. But if it shall be necessary for anyone to go outside in obedience to a command and this shall be done with the counsel and consent of a bishop, persons of such character shall be sent out with a certificate that there may be no suspicion. Of evil in them and that no evil report may arise from them. For the property and business outside of the monastery the abbot, with the permission and counsel of the bishop, shall ordain who shall provide, not a monk, but another of the faithful. Let them entirely shun drunkenness and feasting, because it is known to all that from these men are especially polluted by lust. For a most pernicious rumor has come to our ears that many in the monasteries have already been detected in fornication and in abomination and uncleanness. It especially saddens and disturbs us that it can be said, without a great mistake, that some of the monks are understood to be sodomites, so that whereas the greatest hope of salvation to all Christians is believed to arise from the life and chastity of the monks, damage has been incurred instead…. Certainly, if any such report shall have come to our ears in the future, we shall inflict such a penalty, not only on the guilty but also on those who have consented to such deeds, that no Christian who shall have heard of it will ever dare in the future to perpetrate such acts.”

Concept of Capitulary

Capitulary (Med. Lat. capitularium), a series of legislative or administrative acts emanating from the Merovingian and Carolingian kings, so called as being divided into sections or chapters (capitula). With regard to these capitularies two questions arise: (1) as to the means by which they have been handed down to us; (2) as to their true character and scope.

(1) As soon as the capitulary was composed, it was sent to the various functionaries of the Frankish empire, archbishops, bishops, missi and counts, a copy being kept by the chancellor in the archives of the palace. At the present day we do not possess a single capitulary in its original form: but very frequently copies of these isolated capitularies were included in various scattered manuscripts, among pieces of a very different nature, ecclesiastical or secular. We find, therefore, a fair number of them in books which go back as far as the 9th or 10th centuries. In recent editions in the case of each capitulary it is carefully indicated from what manuscripts it has been collated.

These capitularies make provisions of a most varied nature; it was therefore found necessary at quite an early date to classify them into chapters according to the subject. In 827 Ansegisus, abbot of St Wandrille at Fontenelle, made such a collection. He embodied them in four books: one of the ecclesiastical capitularies of Charlemagne, one of the ecclesiastical capitularies of Louis the Pious, one of the secular capitularies of Charlemagne, and one of the secular capitularies of Louis, bringing together similar provisions and suppressing duplicates. This collection soon gained an official authority, and after 829 Louis the Pious refers to it, citing book and section.

After 827 new capitularies were naturally promulgated, and before 858 there appeared a second collection in three books, by an author calling himself Benedictus Levita. His aim was, he said, to complete the work of Ansegisus, and bring it up to date by continuing it from 827 to his own day; but the author has not only borrowed prescriptions from the capitularies; he has introduced other documents into his collection, fragments of Roman laws, canons of the councils and especially spurious provisions very similar in character to those of the same date found in the False Decretals. His contemporaries did not notice these spurious documents, but accepted the whole collection as 283 authentic, and incorporated the four books of Ansegisus and the three of Benedictus Levita into a single collection in seven books. The serious historian of to-day, however, is careful not to use books v., vi. and vii. for purposes of reference.

Early editors chose to republish this collection of Ansegisus and Benedictus as they found it. It was a distinguished French scholar, Étienne Baluze, who led the way to a fresh classification. In 1677 he brought out the Capitularia regum francorum, in two folio volumes, in which he published first the capitularies of the Merovingian kings, then those of Pippin, of Charles and of Louis the Pious, which he had found complete in various manuscripts. After the date of 840, he published as supplements the unreliable collection of Ansegisus and Benedictus Levita, with the warning that the latter was quite untrustworthy. He then gave the capitularies of Charles the Bald, and of other Carolingian kings, either contemporaries or successors of Charles, which he had discovered in various places. A second edition of Baluze was published in 1780 in 2 volumes folio by Pierre de Chiniac.

The edition of the Capitularies made in 1835 by George Pertz, in the Monumenta Germaniae (folio edition, vol. i., of the Leges) was not much advance on that of Baluze. A fresh revision was required, and the editors of the Monumenta decided to reissue it in their quarto series, entrusting the work to Dr Alfred Boretius. In 1883 Boretius published his first volume, containing all the detached capitularies up to 827, together with various appendices bearing on them, and the collection of Ansegisus. Boretius, whose health had been ruined by overwork, was unable to finish his work; it was continued by Victor Krause, who collected in vol. ii. the scattered capitularies of a date posterior to 828. Karl Zeumer and Albrecht Werminghoff drew up a detailed index of both volumes, in which all the essential words are noted. A third volume, prepared by Emil Seckel, was to include the collection of Benedictus Levita.

(2) Among the capitularies are to be found documents of a very varied kind.

Boretius has divided them into several classes:

(a) The Capitula legibus addenda.—These are additions made by the king of the Franks to the barbarian laws promulgated under the Merovingians, the Salic law, the Ripuarian or the Bavarian. These capitularies have the same weight as the law which they complete; they are particular in their application, applying, that is to say, only to the men subject to that law. Like the laws, they consist chiefly of scales of compensation, rules of procedure and points of civil law. They were solemnly promulgated in the local assemblies where the consent of the people was asked. Charlemagne and Louis the Pious seem to have made efforts to bring the other laws into harmony with the Salic law. It is also to be noted that by certain of the capitularies of this class, the king adds provisions affecting, not only a single law, but all the laws in use throughout the kingdom.

(b) The Capitula ecclesiastica.—These capitularies were elaborated in the councils of the bishops; the kings of the Franks sanctioned the canon of the councils, and made them obligatory on all the Christians in the kingdom.

(c) The Capitula per se scribenda.—These embodied political decrees which all subjects of the kingdom were bound to observe. They often bore the name of edictum or of constitutio, and the provisions made in them were permanent. These capitularies were generally elaborated by the king of the Franks in the autumn assemblies or in the committees of the spring assemblies. Frequently we have only the proposition made by the king to the committee, capitula tractanda cum comitibus, episcopis, et abbatibus, and not the final form which was adopted.

(d) The Capitula missorum, which are the instructions given by Charlemagne and his successors to the missi sent into the various parts of the empire. They are sometimes drawn up in common for all the missi of a certain year—capitula missorum generalia; sometimes for the missi sent only on a given circuit—capitula missorum specialia. These instructions sometimes hold good only for the circuit of the missus; they have no general application and are merely temporary.

(e) With the capitularies have been incorporated various documents; for instance, the rules to be observed in administering the king’s private domain (the celebrated capitulary de villis, which is doubtless a collection of the instructions sent at various times to the agents of these domains); the partitions of the kingdom among the king’s sons, as, the Divisio regnorum of 806, or the Ordinatio imperii of 817; the oaths of peace and brotherhood which were taken on various occasions by the sons of Louis the Pious, &c.

The merit of clearly establishing these distinctions belongs to Boretius. He has doubtless exaggerated the difference between the Capitula missorum and the Capitula per se scribenda; among the first are to be found provisions of a general and permanent nature, and among the second temporary measures are often included. But the idea of Boretius is none the less fruitful. In the capitularies there are usually permanent provisions and temporary provisions intermingled; and the observation of this fact has made it possible more clearly to understand certain institutions of Charlemagne, e.g. military service.

After the reign of Louis the Pious the capitularies became long and diffuse. Soon, from the 10th century onwards, no provision of general application emanates from the kings. Henceforth the kings only regulated private interests by charters; it was not until the reign of Philip Augustus that general provisions again appeared; but when they did so, they bore the name of ordinances (ordonnances).

There were also capitularies of the Lombards. These capitularies formed a continuation of the Lombard laws, and are printed as an appendix to these laws by Boretius in the folio edition of the Monumenta Germaniae, Leges, vol. iv.

Source: Encyclopedia Britannica (1911)


See Also

Further Reading

Authorities.—-Boretius, Die Capitularien im Longobardenreich (Halle, 1864); and Beitrage zur Capitularienkritik (Leipzig, 1874); G. Seeliger, Die Kapitularien der Karolinger (Munich, 1893). See also the histories of institutions or of law by Waitz, Brunner, Fustel de Coulanges, Viollet, Esmein.

Leave a Comment