[Henderson Note:
The Capitulary of 802, is, in reality, nothing more nor less than the foundation charter of that longlived institution, the Holy Roman Empire. The latter, as will be remembered, began its existence on Christmas-day, 800, and ended it on August 6th, 1806. Already in Voltaire's time it had ceased to be " either holy, or Roman, or an empire," but its pretensions were kept up until all Germany fell asunder before the wars and the wiles of Napoleon.
This capitulary of Charlemagne is the programme, so to speak, of the young empire. It is the ideal-an ideal never once to be fulfilled-of what that empire should have been. At the head of all things stands the emperor, whose greatest duty it is to provide for the welfare of his subjects. Every male being in his realm who is over twelve years of age has to plight his troth to him. In his hands are justice, morality, and religion. His realm is to be a haven of rest where all discords are to cease and no one to infringe on the rights of another. In his care are all the churches of God, all widows, orphans, and strangers, "for the emperor himself, after God and His saints, has been constituted their protector and defender."
Quite new, in the present document, is the introduction of the "missi dominici"-regular envoys who were to radiate from the emperor as a centre, and bring peace and justice to all parts of the realm. They were to overlook all the different officials, and to listen to complaints against them. So excellent was the institution that one similar to it was adopted in England, where in the time of Henry II. the itinerant justices formed an important feature of the administration.
It is worth while to notice how completely, at this time, the clergy were under the rule of the emperor. The new empire was to be as much of a theocracy as the kingdom of that David whose name Charlemagne bore in the intimate circle of his learned friends. But too soon, alas, the elements of disruption were to make themselves felt. The clergy were to assert their allegiance to a King higher than any earthly monarch, whose commands, as issued and tampered with by His representative on earth, were to be at variance with all the best interests of the emperor. Nationality was to war with universalism, the accepted principles of heredity with the desire for the necessary unity; and with the death of the last Carolingian emperor the empire itself was irretrievably to be cleft and riven.]
CHAPTER I. CONCERNING THE EMBASSY SENT OUT BY THE LORD EMPEROR.
The most serene and most Christian emperor Charles, did choose from among his nobles the most prudent and the wisest men archbishops as well as other bishops, and venerable abbots, and pious laymen and did send them over his whole kingdom; and did grant through them, by means of all the following provisions, that men should live according to law and right. He did order them, moreover, that, where anything is contained in the law that is otherwise than according to right and justice, they should inquire into this most diligently, and make it known to him: and he, God granting, hopes to better it. And let no one, through his cleverness or astuteness-as many are accustomed to do-dare to oppose the written law, or the sentence passed upon him, or to prevail against the churches of God or the poor, or widows, or minors, or any Christian man. But all should live together according to the precept of God in a just manner and under just judgment, and each one should be admonished to live in unity with the others in his occupation or calling. The monastic clergy should altogether observe in their actions a canonical mode of living, far removed from turpid gains; nuns should keep diligent guard over their lives; laymen and secular clergy should make proper use of their privileges without malicious fraud; all should live together in mutual charity and perfect peace. And let the messengers diligently investigate all cases where any man claims that injustice has been done to him by any one, according as they themselves hope to retain for themselves the grace of omnipotent God, and to preserve the fidelity promised to him. And thus, altogether and everywhere and in all cases, whether the matter concerns the holy churches of God, or the poor, or wards and widows, or the whole people, let them fully administer law and justice according to the will and to the fear of God. And if there should be any matter such that they themselves, with the counts of the province, could not better it and render justice with regard to it: without any ambiguity they shall refer it, together with their reports, to the emperor's court. Nor should anyone be kept back from the right path of justice by the adulation or the reward of any man, by the obstacle of any relationship, or by the fear of powerful persons.
2. CONCERNING THE FEALTY TO BE PROMISED TO THE LORD EMPEROR.
And he ordained that every man in his whole kingdom -ecclesiastic or layman, each according to his vow and calling-who had previously promised fealty to him as king should now make this promise to him as emperor; and that those who had hitherto not made this promise should all, down to those under 12 years of age, do likewise. And he ordained that it should be publicly told to all-so that each one should understand it-what important things and how many things are comprehended in that oath: not alone, as many have hitherto believed, fidelity to the emperor as regards his life, or the not introducing an enemy into his kingdom for a hostile purpose, or the not consenting to the infidelity of another, or the not keeping silent about it. But all should know that the oath comprises in itself the following meaning:
3. Firstly, that every one of his own accord should strive, according to his intelligence and strength, wholly to keep himself in the holy service of God according to the precept of God and to his own promise-inasmuch as the emperor can not exhibit the necessary care and discipline to each man singly.
4. Secondly, that no one, either through perjury or through any other wile or fraud, or on account of the flattery or gift of any one, shall refuse to give back, or dare to abstract or conceal a slave of the emperor, or a district or territory or anything that belongs to his proprietary right; and that no one shall presume to conceal or abstract, through perjury or any other wile, fugitive fiscaline slaves who unjustly and fraudulently call themselves free.
5. That no one shall presume through fraud to plunder or do any injury to the holy churches of God, or to widows, orphans or strangers; for the emperor himself, after God and his saints, has been constituted their protector and defender.
6. That no one shall dare to devastate a fief of the emperor or to take possession of it.
7. That no one shall presume to neglect a summons to arms of the emperor; and that no count be so presumptuous as to dare to release out of regard for any relationship, or on account of flattery or of any one's gift-any one of those who owe military service.
8. That no one at all shall dare in any way to impede a bann or precept of the emperor, or delay or oppose or damage any undertaking of his, or in any way act contrary to his will and precepts. And that no one shall dare to interfere with his taxes and with what is due to him.
9. That no man shall make a practice of unjustly carrying on the defence of another in court, whether from any cupidity, being not a very great pleader; or in order, by the cleverness of his defence, to impede a just judgment or, his case being a weak one, by a desire of oppressing. but each man, with regard to his own case, or tax, or debt, must carry on his own defence; unless he be infirm or ignorant of pleading-for which sort of persons the "missi," or those who preside in that court, or a judge who knows the case for the defendant, shall plead before the court. Or, if necessary, such a person may be granted for the defence as shall be approved by all, and well versed in that case. This, however, shall be done altogether according to the pleasure of those who preside, or of the "missi" who are present. And all this shall be done in every way according to law, so that justice shall be in no way impeded by any gift, payment, or by any wile of evil adulation, or out of regard for any relationship. And that no man shall make any unjust agreement with another, but that all shall be prepared, with all zeal and good will to carry out justice.
For all these things here mentioned should be observed as being comprised in the oath to the emperor.
10. That bishops and priests should live according to the canons and should teach others to do likewise.
11. That bishops, abbots and abbesses, who are placed in power over others, should strive to surpass in veneration and diligence those subject to them; that they should not oppress them with severe and tyrannous rule, but should carefully guard the flock committed to them, with simple love, with mercy and charity, and by the example of good works.
12. That abbots should live where the monks are, and wholly with the monks, according to the rule; and that they should diligently teach and observe the canons; and that abbesses shall do the same.
13. That bishops, abbots and abbesses, shall have bailiffs and sheriffs and judges skilled in the law, lovers of justice, peaceful and merciful: so that, through them, more profit and gain may accrue to the holy church of God. For on no account do we wish to have harmful or greedy provosts or bailiffs in a monastery; for, from them, the greatest blasphemies or evils may arise for us. But let them be such as the decree of the canons or of the rule bids them to be,-submissive to the will of God, and always ready to do justice in every way, wholly observing the law without malice or fraud, always exercising a just judgment in all things: such provosts, in short, as the holy rule recommends. And they shall altogether observe this, that they shall on no account(1) .... depart from the model of the canons or the rule, but shall practice humility in all things. If they presume to act otherwise they shall feel the discipline prescribed in the rule; and, if they be unwilling to amend their ways, they shall be removed from their prevostship, and others who are worthy shall be chosen in their stead.
14. That bishops, abbots and abbesses, and counts shall be mutually in accord, agreeing, with all charity and unity of peace, in wielding the law and in finding a right judgment; and that they shall faithfully live according to the will of God, so that everywhere and always, through them and among them, just judgments may be carried out. The poor, widows, orphans and pilgrims shall have consolation and protection from them; so that we, through their good will, may merit, rather than punishment, the rewards of eternal life.
15. We will, moreover, and decree, that abbots and all monks shall be subject in all obedience to their bishops, as the canonical institutions require. And all churches and chapels shall remain in the protection and power of the church. And no one shall presume to divide or cast lots for the property of the church. And what is once offered (for sale ?) shall go no further, but shall be sanctified and reclaimed. And if ally one presume to act counter to this, he shall pay and make good our royal fine. And the monks of that province shall be admonished by the bishop; and, if they do not amend their ways, then the archbishop shall call them before the synod; and, if they do not thus better themselves, then they, together with the bishop, shall come to our presence.
16. In the matter of choosing candidates for ordination, the emperor has confirmed this now to the bishops and abbots just as he formerly conceded it to them under the Frankish law. With this restriction, however, that a bishop or abbot shall not prefer the more worthless men in a monastery to the better ones; nor endeavour, on account of relationship, or through any flattery, to advance them over the better ones; nor bring such a one before us to be ordained, when he has a better man whom he conceals and oppresses. We absolutely will not allow this for it seems to be done out of derision and deceitfulness towards us. But let there be prepared for ordination in the monasteries men of such kind that, through them, gain and profit will accrue to us and to those who recommend them.
17. That the monks, moreover, shall live firmly and strictly according to the rule; since we know that whoever is lukewarm in carrying out His will, is displeasing to God. As John, in the Apocalypse, bears witness: "I would that thou wert cold or hot. So then, because thou art lukewarm, I will spue thee out of my mouth." They shall on no account take upon themselves secular occupations. They shall not be permitted to go outside of the monastery unless great necessity compels them; and the bishop in whose diocese they are shall take great care that they do not gain the habit of wandering round outside of the monastery. But if it be necessary for any one, as an act of obedience, to go outside, this shall be done by the advice and with the consent of the bishop; and such persons shall be sent out, provided with a certificate of character, who are not evil-minded, and about whom no evil opinion is held. As to the outlying estates or property of the monastery, the abbot by the advice and with the permission of the bishop, shall decree who shall look after them; not a monk, unless subject to another monastery. They shall in every way avoid earthly pursuit of gain, or a desire for worldly things. For avarice and concupiscence are to be avoided by all Christians in this world, but chiefly by those who have renounced the world and its desires. Let no one presume to start a quarrel or dissension either within or without the monastery. Whoever shall have presumed to do so, shall be punished by the most severe discipline of the rule, so that others shall have fear of doing likewise. Let them altogether avoid drunkenness and feasting; for it is known to all that chiefly through them one comes to be polluted by lust. For the very pernicious rumour has come to our ears that many, in the monasteries, have been taken in fornication in abomination and uncleanness. And most of all it saddens and disturbs us that it can be said without error that from those things whence the greatest hope of salvation for all Christians is believed to arise-namely, the manner of living and the chastity of the monks-the evil has arisen that some of the monks are found to be sodomites.
18. Monasteries for women shall be firmly ruled, and the nuns shall by no means be permitted to wander about, but shall be kept with all diligence. For shall they be permitted to quarrel or contend among themselves, or in any way to be disobedient and refractory towards their masters and abbesses. Where they live under the rule, they shall observe all things altogether according to the rule. They shall not be given to fornication, drunkenness, or cupidity; but in all ways they shall live justly and soberly. And let no man enter into their cloister or monastery, unless a priest, with testimonials, enter it for the sake of visiting the sick, or for the mass alone; and straightway thereafter he shall go out again. And let no one enroll his daughter among the congregation of the nuns without the knowledge and consideration of the bishop to whose diocese that place pertains; and let the latter himself diligently ascertain that she is desirous of remaining in the holy service of God, and there confirm the stability of her vow. Moreover, the handmaids of other men, and such women as are not willing to live according to the manner of life in the holy congregation, shall all be altogether ejected from the congregation.
19. That no bishops, abbots, priests, deacons-no one in short, belonging to the clergy-shall presume to have hunting dogs or hawks, falcons or sparrow-hawks; but each one shall keep himself wholly in his proper sphere, according to the canons, or according to the rule. Any one who presumes to do this (have hunting dogs, etc.) shall know that he loses his standing. Furthermore he shall suffer such punishment for this, that others shall fear to wrongfully do likewise.
20. That abbesses and their nuns shall, with one mind and diligently, keep themselves within their cloister-walls' and by no means presume to go outside of their cloisterwalls. But the abbesses, when they propose to send out any of the nuns, shall by no means do this without the permission and advice of their bishop. Likewise when any ordinations are to take place in the monasteries, or any persons to be received into the monasteries, this also they shall first fully talk over with their bishops. And the bishops shall announce to the archbishop what they consider the best and most advantageous course of proceeding; and with his advice they shall carry out what is to be done.
21. That priests and the other lesser clergy, whom they have to help them in their ministry, shall altogether show themselves subject to their bishops, as the canons demand. As they desire our favour and their own advancement, let them consent fully to be taught in sacred subjects by these their bishops.
22. The secular clergy, moreover, ought to lead a completely canonical life, and be educated in the episcopal palace, or also in a monastery, with all diligence according to the discipline of the canons. They shall by no means be permitted to wander at large, but shall live altogether apart, not given to disgraceful gain, not fornicators, not thieves, not homicides, not ropers, not quarrelsome, not wrathful, not proud, not drunken; but chaste in heart and body, humble, modest, sober, merciful, peaceful; that, as. sons of God they may be worthy to be promoted to sacred orders: not, like those who are called sarabaites, living in towns and villages near or adjoining the church, without master and without discipline, revelling and fornicating, and also doing other wicked deeds the consenting to which is unheard of.
23. Priests shall carefully pay heed to the clergy Shone they have with them, that they live according to the canons; that they be not given to vain sports or worldly feastings, or songs or luxuries, but that they live chastely and healthfully.
24. Moreover, any priest or deacon who after this shall presume to have women in his house without permission of the canons, shall be deprived at once of his position and of his inheritance until he shall be brought into our presence.
25. That counts and centenars shall see to it that justice is done in full; and they shall have younger men in their service in whom they can securely trust, who will faithfully observe law and justice, and by no means oppress the poor; who will not, under any pretext, induced by reward or flattery, dare to conceal thieves, robbers, or murderers, adulterers, magicians and wizards or witches, or any godless men,-but will rather give them up that they may be bettered and chastised by the law: so that, God permitting, all these evils may be removed from the Christian people.
26. That judges shall judge justly, according to the written law and not according to their own judgment.
27. We decree that throughout our whole realm no one shall dare to deny hospitality to the rich, or to the poor, or to pilgrims: that is, no one shall refuse shelter and fire and water to pilgrims going through the land in God's service, or to any one travelling for the love of God and the safety of his soul. If any one shall wish to do further kindness to them, he shall know that his best reward will be from God, who said Himself: " And who so shall receive one such little child in my name, receiveth me." And again: " I was a stranger and ye took me in."
28. Concerning embassies coming from the lord emperor.-That the counts and centenars, as they desire to obtain the emperor's favour, shall provide with all care for the envoys sent, so that they may go through their districts without delay. And he altogether recommends to all to arrange all that shall be required, in such manner that there shall nowhere be delay; but they shall speed them on their way with all haste, and shall provide for them as they, our envoys, may arrange.
29. That our judges, counts, or envoys shall not have a right to extort payment of the remitted fine, on their own behalf, from those destitute persons to whom the emperor has, in his mercy, forgiven what they ought to pay by reason of his balm.
30. As to those whom the emperor wishes by Christ's favour to have peace and defence in his kingdom-that is those who, whether Christians or pagans, hasten to his. presence desiring to announce something, or those who seek alms on account of indigence or hunger-let no none dare to constrain them to do him service, or take possession of them, or alienate or sell them: but where they remain of their own will, there they, under the protection of the emperor, shall have alms from his bounty. If any one shall presume to transgress this, he shall know that he shall atone for it with his life, for having so presumptuously despised the commands of the emperor.
31. And let no one presume to contrive injuries or in. suits against those who announce a judgment of the emperor, or to show hostility to them in any way. Whoever shall have presumed to do this shall pay the king's bann; or, if he deserve a greater punishment, it is ordered that he be brought into the king's presence.
32. With every kind of protestation we command that men leave off and shun murders, through which many of the Christian people perish. If God forbids hatred and enmity to his followers, much more does he forbid murders. For how can any one hope to be pleasing to God who has slain His son who is nearest to Him? Or how can any one believe that Christ will be gracious to him who has slain his brother. It is a great and inevitable risk to arouse the hatred of men besides incurring that of God the Father and of Christ the ruler of Heaven. By hiding, one can escape them for a time; but, nevertheless, one falls by some chance into the hands of his enemies. And where can one flee God to whom all secrets are manifest ? by what rashness can any one hope to evade His wrath? Therefore we have taken care to avoid, by every possible regulation, that the people committed to us to be ruled over perish by this evil. For he who has not feared that God will be angry with him, will by no means find us gentle and gracious; we wish rather to punish with the greatest severity him who dares to commit the crime of murder. Lest, then, crime increase, and in order that very great discord may not arise among men,-wherever under the devil's suasion, a murder has occurred, the guilty one shall straightway hasten to make his amends, and shall, with all celerity, compound worthily with the relatives of the dead man for the evil done. And this we firmly decree under fur bane, that the relatives of the dead man shall by no means dare to carry further their enmity on account or the evil inflicted, or refuse to make peace with him who seeks it; but, pledging their faith, they shall make a lasting peace, and the guilty man shall make no delay in paying the wergeld. When, moreover, through the influence of sin, this shall have happened, that any one shall have slain his brothers or his relative, he shall straightway submit himself to the penance imposed, according as his bishop decides, and without any circumvention. But by the help of God he shall strive to work out his atonement; and he shall pay the fine for the slain man according to the law, and shall fully be reconciled to his relatives. And, having pledged their faith, let no one thenceforth dare to start hostilities. And whoever shall scorn to make proper amends shall be deprived of his inheritance until we shall have rendered our judgment.
33. We altogether prohibit the crime of incest. If any one be contaminated by sinful adultery, he shall not be released without grave severity, but shall so be punished for this that others may have fear of doing the same: so that uncleanness may be altogether removed from the Christian people, and that the guilty man may fully atone by such penance as shall be imposed on him by his bishop. And that woman shall be placed in the hands of her relatives until we pass sentence. But if the man be unwilling to submit to the sentence of the bishop concerning what amends he shall make, then let him be brought before our presence, mindful of the example which was made in the case of the incest committed by Fricco in the temple.
34. That all shall be fully and well prepared whenever our order or announcement shall come. If any one then say that he be not prepared, and avoid our mandate, let him be brought to the palace; and not only he, but likewise all who presume to transgress our bann or command.
36. That all men shall at all times, in the service and will of God, venerate with all honour their bishops and priests. Inlet them not dare to pollute themselves and others by incestuous nuptials; let them not presume to be wedded until the bishops and priests, together with the elders of the people, shall diligently inquire into the degree of blood-relationship between those being joined together. And then, with a benediction, let them be wedded. Let them avoid drunkenness, shun greed, commit no theft. Let strife and contentions and blasphemy whether at feasts or assemblies, be altogether avoided but let them live in charity and concord
36. Also that, in carrying out every sentence, all shall be altogether of one mind with our envoys. And they shall not at all permit the practice of perjury, which most evil crime must be removed from Christian people. If any one henceforth shall be proved a perjurer. he shall know that he shall lose his right hand; and he shall, in addition be deprived of his inheritance until we have judged his case.
37. As to patricides or fratricides, or those who have slain their mother's or their father's brother, or any relation,-if they have been unwilling to obey and agree to the sentence of the bishops and other priests: for the safety of their souls and that they may pay a just penalty-. let our envoys and counts keep them in such custody until they are brought into our presence, that they may be safe and may not infect other people. And they shall, in the meantime, be deprived of their property.
38. And let the like be done to those who have been reprimanded and corrected for unlawful and incestuous unions, and who art not willing to obey their bishops and priests, and who presume to despise our bann.
39. Let no one in our forests dare to rob our game which we have already many times forbidden to be done And now again we firmly decree that no one shall do this any more. Each one shall keep guard on himself as he hopes to keep the fealty sworn to us. But if any count or centenar or lower official of ours, or any one of our serving-men, shall have stolen our game, he shall without fail be brought to our presence and called to account. Any other common man who may have stolen our game, shall compound for it to the full extent of the law; and by no means shall any allowance be made for such persons in this matter. If any one knows that this evil deed has been perpetrated by another, let him not, by the fealty which he has promised and must now promise to us, dare to conceal it.
40. Lastly, then, we wish our decrees to be known, through the envoys whom we now send, by everyone in our whole realm-by ecclesiastics, viz.: bishops, abbots, priests, deacons, canons, all monks and nuns;-so that they, each one in his office or calling, may keep our bean and decree either in cases where it shall be necessary to thank those subject to them for their good will, or to lend them aid, or in cases where there may be need of applying a remedy. Likewise we wish our decrees to be known by laymen and in all places-whether they concern the protection of churches or widows, or orphans or the weak; or the plundering of them, or the fixing of the assembling of the army, or any other matters: in order that they may be obedient to our command to our will, and that each one may strive in all things to keep himself in the sacred service of God. And thus may all these things be good and to the praise of omnipotent God, and may we give thanks where they are due; but when we think that any thing needs vengeance, may we strive with all our will and all our zeal to better it,-so that, with God's aid, we may succeed in bettering it, to the eternal gain of ourselves and all our followers. Likewise we wish that all the above decrees be made known to our counts and centenars and officials.
(1) The MS. is here defective. Back
