The laws of the Franks were enacted “consensu populi et constitutione regis.” Liberty was the chief inheritance of the ancient people of Germany; nor were they governed by laws which they had no share in enacting. It has been remarked by Dr Stuart, that “the short but comprehensive and sentimental work of Tacitus, on the manners of Germany, is the key to the institutions, the Capitularies, and the code of the barbarians.” But the national assemblies of those who were capable and worthy of bearing arms appear to have been gradually superseded by a select council, composed of the two orders of the clergy and nobility; and if the great body of the people attended their deliberations, it seems to have been more in the capacity of spectators than of actual legislators. The initiative in promulgating any resolution was always takeu by the king or emperor, and the final adoption seems also to have been very much in his hands, the assembled magnates merely giving their advice on the circumstances of the case. This was the form of the constitution in the time of Charlemagne, in whose name a great proportion of the Capitularies are promulgated, though some of them belong to a more recent, and others to a much more early period, the collection commencing with an enactment of King Childebert, dated in the year 554. The Capitularies are written in the Latin language, and were doubtless drawn up by the ecclesiastics. The Latin copies were deposited among the national archives, but the laws were divulged to the people in their mother tongue.

Savigny gives the following summary of what is now known with regard to the Capitularies :—“The imperial ordinances of the Franks (Capitularia), which, after the extension of their empire,were distinguished from the national laws (Leges), arose from the enlargement of the same principle. All royal enactments, particularly in later times, were called Capitularia, or Capitula. The king had a double character,—the one, as chief of each individual tribe, and the other as head of the whole nation. Hence the Capitularies also are of two classes,— those defining the law of a particular race, e.g., * Capitula addita ad Legem Salicam, ’ and those of general application over the whole Frank territory. In the kingdom of the Franks, with which so many different nations were incorporated, the Capitularies are so frequently general under the Carlovingian dynasty, that when their character is not specially fixed they may be understood as belonging to that class. In Lombardie Italy, on the contrary, where the Lombards and Romans were the only distinct peoples, most of the ordinances of Charles aad his successors must be understood as constituting exclusively Lombardie law. For this reason probably they have been inserted in all the early collections of that law, and were consequently never obligatory on the Romans. It is, however, of great importance to determine accurately the limits of the general Capitularies. The laws of the race of Charlemagne have been erroneously supposed to apply to all the subjects of their extensive empire. These princes reigned over three distinct kingdoms, the Frankish, the Lombardie, and that which under the name of Rome and the Exarchate had recently constituted part of the Greek empire. No Capitulary, however general, could overstep the boundaries of that state in which it had originated. The only exceptions to this rule were some clerical laws; and their universal validity arose from the unity of the church, and from the common old ecclesiastical authorities, on which they were founded. No examplè of a similarly general application is found in any of the temporal ordinances.”

The first collection of the Capitularies was made in the 9th century by Angesise, abbot of Fontenelle, one of the councillors of Charlemagne. He collected the Capitula of Charlemagne and Louis le Débonnaire into four books. In 842 Benedict, deacon of Mainz, added three books, bringing up the number of Capitula to 1697. Supplements were afterwards added, which increased the number to 2100. The history of the later editions will be found in the preface of Baluze, who has himself surpassed all preceding and all subsequent editors. His great collection appeared under the following title: Capitularia Regum Francorum ; additae sunt Marculfi monachi et aliorum formulae veteres, et notas doctissimorum virorum : Stephanus Baluzius Tutelensis in unum collegit, ad vetustissimos codices manu· scriptos emendavit, magnam partem nunc primum edidit, notis illustravit, Paris, 16(7, 2 tom. fol. This valuable λvork was long afterwards reprinted in Italy (Venetiis, 1771, 2 tom. fol.) Another edition, for which Baluze had himself made preparations, is that of De Chiniac, which appeared at Paris, 1780, 2 tom. fol. This edition is splendidly printed, but is somewhat disfigured by a French translation of the preface, exhibited column for column. The Capitularies are also to be found in Georgisch’s Corpus Juris Germanici antiqui, Halae Magd. 1738, 4 to; in Canciani’s Leges Barbarorum antiques, Venetiis, 1781-91, 5 tom. fol.; in Walter, Corpus Juris German, antiq., 1823-4; and in Pertz, Monumenta Germanica. An admirable analysis of the contents of the Capitularies will be found in Guizot, His. de la Civilization, Leç. xxi. and xxv. See also Michelet, Origines du Droit Français.