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CAPITULATION—CAPITULATIONS

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.

Authorities.—Boretius, Die Capitularien im Longobardenreich (Halle, 1864); and Beiträge 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.  (C. Pf.) 


CAPITULATION (Lat. capitulum, a little head or division; capitulare, to treat upon terms), an agreement in time of war for the surrender to a hostile armed force of a particular body of troops, a town or a territory. It is an ordinary incident of war, and therefore no previous instructions from the captor’s government are required before finally settling the conditions of capitulation. The most usual of such conditions are freedom of religion and security of private property on the one hand, and a promise not to bear arms within a certain period on the other. Such agreements may be rashly concluded with an inferior officer, on whose authority the enemy are not in the actual position of the war entitled to place reliance. When an agreement is made by an officer who has not the proper authority or who has exceeded the limits of his authority, it is termed a sponsion, and, to be binding, must be confirmed by express or tacit ratification. Article 35 of the Hague Convention (1899) on the laws and the customs of war lays down that “capitulations agreed on between the contracting parties must be in accordance with the rules of military honour. When once settled they must be observed by both the parties.”

In another sense, capitulation is the name given to an arrangement by which foreigners are withdrawn, for most civil and criminal purposes, from the jurisdiction of the state making the capitulation. Thus in Turkey arrangements termed capitulations (q.v.), and treaties confirmatory of them, have been made between the Porte and other states by which foreigners resident in Turkey are subject to the laws of their respective countries. The term is also applied by French writers to the oath which on his election the Holy Roman emperor used to make to the college of electors; this related chiefly to such matters as regalian rights, appeals from local jurisdictions, the rights of the pope, &c.


CAPITULATIONS (from Lat. caput, or its Low-Latin diminutive capitulum, as indicating the form in which these acts were set down in “chapters”; the Gr. equivalent cephaleosis, κεφαλαίωσις, is occasionally used in works of the 17th century), treaties granted by a state and conferring the privilege of extra-territorial jurisdiction within its boundaries on the subjects of another state. Thus, in the 9th century, the caliph Harun-al-Rashid engaged to grant guarantees and commercial facilities to such