CAPITULARIES are certain laws enacted under the auspices of kings of the Frankish race. They are called Capitularia by a word of no classical authority, but derived from capitulum, the diminutive of caput; and they are so described from the circumstance of their being enacted or digested capitulatim, by heads or chapters. The term is very frequently used in a general sense, but in other instances capitulares are distinguished from laws.

The laws of the Franks were enacted "consensu populi, 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 codes of the barbarians." In the opinion of the same able jurist, the foundation and principles of the Anglo-Saxon constitution are to be found in the institutions and manners of the ancient Germans; and he has accordingly endeavoured to trace the most essential principles of that constitution to the forests of Germany. But the national assemblies of those who were capable and worthy of bearing arms, appear to have been gradually superseded by a select council, composed of the two orders of the clergy and nobility; and if the great body of the people attended their deliberations, it seems to have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. 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 this task was doubtless performed 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, whose name ought to be familiar to all those who study the history or jurisprudence of the middle ages, has supplied us with the following statement: "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 Carolingian dynasty, that when their character is not specially fixed, they may be understood as belonging to that class. In Lombardic Italy, on the contrary, where the Lombards and Romans were the only distinct people, most of the ordinances of Charles and his successors must be understood as constituting exclusively Lombardic 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, Lombardic, 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 ecclesiastic... The earliest editor of the Capitularies was Vitus Amerbachius, who published at Ingolstadt, in the year 1545, "Principium Constitutiones Caroli Magni de Rebus ecclesiasticis et civilibus." The history of the various editions we cannot here detail, but must refer our more inquisitive readers to the copious and elaborate 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 Marcelli monachi et aliorum Formulæ veteres, et notæ doctissimorum virorum: Stephanus Baluzius Tuteleensis in unum collegit, ad vetustissimos codices manuscriptos emendavit, magnam partem nummorum edidit, notis illustravit." Paris, 1677, 2 tom. fol. This valuable work was long afterwards reprinted in Italy. Venetii, 1771, 2 tom. fol. Another edition, for which Baluze had himself made preparations, remains to be mentioned: "Nova editio, auctior ac emendatior ad fidem autographi Baluzii, qui de novo textum purgavit, notasque castigavit et adjecit: accessere Vita Baluzii, partim ab ipso scripta, Catalogus Operum hujus viri clarissimi, cum animadversionibus historicis, et Index variariorum Operum ab illo illustratorum, quorum plurimorum novas meditabatur Editiones: curante Petro de Chiniac, Regi a Consiliis, Prosenescallo Generali Civilis Userrhae, e Regia Humaniorum Litterarum Academia Montis-Albani." 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 may likewise be found in two more recent publications; in Georgisch's Corpus Juris Germanici antiqui, Halae Magd. 1738, 4to, and in Canciani's Leges Barbarorum antiquae, Venetii, 1781-91, 5 tom. fol. (x.)