Capitularies, Imperial and Ecclesiastical
CAPITULARIES, IMPERIAL AND ECCLESIASTICAL
Imperial and ecclesiastical capitularies is the name given to the body of legislation, in the form of short articles (capitula ), issued by the Carolingian kings and emperors during the second half of the 8th and 9th centuries. The term capitulare for such a royal or imperial ordinance occurs in contemporary sources.
Capitularies were sometimes concerned with one particular matter, e.g., church organization or defense, but more often they dealt with a variety of topics; some articles were in the nature of true legislation, others were of a more administrative and executive kind. The capitularies are the hallmark of the Carolingian attempt at ordered government.
Area and Period. Most capitularies were issued for people of all of the lands under Frankish rule; some, for the Franks or the Lombards only ("Frankish" and groups only, such as the Salic Franks or the Bavarians. Their validity was on a personal basis and its duration is hard to generalize. They sometimes contained specific references to duration, e.g., the capitulary of Quierzy (a.d. 877), which was to be in force only during the Italian expedition of Charles the Bald. But usually there was no explicit indication; duration depended on the nature of the capitulary and the circumstances of its promulgation. Capitularies of a real legislative character had permanent validity unless expressly changed or abolished; those inspired by temporary situations naturally had only a temporary validity. There are some extant capitularies from the time of Carloman and Pippin III, but the main body comes from the period of Charlemagne and Louis the Pious. After the division of 843 there were no more capitularies in the East Frankish kingdom, or in the realm of Lothair I, except for Italy where they continued until the late 9th century (a.d. 898). In the West Frankish kingdom capitularies continued to be issued to a considerable extent until the death of Charles the Bald (877); they stopped altogether after a.d. 884.
Promulgation and Conservation of the Text. Although sometimes sent out in the form of official circular letters, capitularies were not usually drafted in official full texts by the royal chancery, but were notes or title lists set down to recall the contents of royal commandments made orally; hence, the allusive and elliptical character of most of them. The form was often that of orders and prohibitions. Since there was no one authoritative text, manuscript tradition shows an exceptional number of variant readings.
The royal bannum, i.e., the ruler's right to command, was the basis of the authority of the capitulary. The spoken word of the prince was the ultimate legal basis for his contemporaries. Consultation with and consent given by lay and ecclesiastical magnates was a feature of annual meetings though the impact of this advice and consent differed from time to time. The real meaning of the consent has been much discussed. It may be assumed that until the reign of Louis the Pious the term meant little more than a formal recognition of the validity of the royal edicts, and a promise to stand by them and see to their execution. This is clear in texts where people are to be ordered to "consent" to certain capitularies. Certainly there is no textual evidence to warrant a theory of the necessity of popular consent for the validity of royal legislation, let alone a theory of popular sovereignty. During the latter part of Louis the Pious's reign and after it, the aristocracy gained power from the weakening of royal authority and turned their "consent" into something that could be withheld and could, therefore, be a factor of real importance in the promulgation of the capitulary.
When the prince issued a new set of capitularies they were distributed throughout the realm either by royal envoys (missi dominici ) or by the counts in their respective domains (pagi ). Copies were made and preserved not only in the royal archives but throughout the realm. From the beginning individuals made collections of capitularies for practical purposes, often combining them with other legal material in a single manuscript. Most copies of capitularies that have come down to us (from the 9th, 10th, and 11th centuries) are of that nature; no original text has been preserved. One of the most influential collections was made under Louis the Pious by Abbot Ansegisus of Saint-Wandrille. It follows a systematic order, and was frequently in official use. The so-called Benedict the Levite, well-known through the False Decretals, made a collection of capitularies as a continuation of those gathered by Ansegisus, probably in 847–852. Benedict's collection contains many spurious elements.
Contents and Types. Capitularies dealt with diverse matters: legal, ecclesiastical, military, fiscal, administrative, and commercial. Even though matters in several of these categories were often treated in the same set of capitularies, it is nevertheless possible to distinguish certain types on the basis of their form or contents. The distinction between ecclesiastica and mundana is made in the texts; the former deal with church matters, the latter with a variety of legal, military, and administrative topics. Capitula mundana are further divided into: (1) capitula legibus addenda, or capitularies adding some legislation to various existing national bodies of law, such as the Lex Salica; (2) capitula per se scribenda, or autonomous royal edicts; and (3) capitula missorum, or instructions given to royal envoys on their departure from the royal palace. This threefold division goes back to Carolingian times.
Capitularies dealt with monastic and canonical organization and discipline: such liturgical topics as stipulations concerning church chant and computation of the date of feast days; access to Holy Orders; and the veneration of (new) saints and image worship. They were valid in areas where Church and civil law might both claim some jurisdiction such as: restoration of church buildings and the benefices of their incumbents; church tithes; wandering monks and pilgrims; competence of courts, procedure, and punishment of criminous clerks; crimes committed by laymen for which church courts were competent; protection of churches and churchmen. They also treated of the role of the advocatus, i.e., the layman responsible for various temporal functions of ecclesiastical institutions; the special attention to be given in the law courts to actions brought by churches; the belief in ordeals; and numerous other religious and ecclesiastical matters.
All preserved capitularies are in Latin, although very imperfect Latin, and it is improbable that any were written in other languages. The Latin is interspersed with Germanic or Romance words and is sometimes very difficult to understand precisely. The capitularies were conceived in one of the Germanic or Romance dialects of the time and then literally translated into Latin. They present the phenomenon of vernacular thought and speech patterns using Latin words. The situation improved under Louis the Pious as a consequence of the so-called Carolingian Renaissance, and the Italian capitularies were always better written than the Frankish ones. The absence of a precise technical language was particularly felt in legal matters where there was little or no influence of Roman law.
Bibliography: f. l. ganshof, Was waren die Kapitularien? (Weimar 1961). g. seeliger, Die Kapitularien der Karolinger (Munich 1893). c. de clercq, La Législation religieuse Franque …, 2 v. (Paris-Antwerp 1936–58). r. buchner, "Die Rechtsquellen," Wattenbach-Levison (1953) Beiheft, a recent survey of editions and literature.
[r. c. van caenegem]