Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/55

 ^. JENKS: TEUTONIC LAW 41 on of I selves called upon to live up to the elaborate civilization the Roman Empire. They broke down under the strain their breakdown is the first great tragedy in modern history, the parent of many tragedies to follow. Those who doubt the possibility of such an explanation, may be referred to the " Parliaments " and " Cabinets " of Samoa, and to the " Polynesian Empire." Now one of the most splendid prerogatives of the Roman Emperor was his power of legislation. Quite naturally, his imitators, the Prankish kings and emperors, strove to exer- cise it. Hence the Capitula, or royal and imperial edicts, which, at any rate for some time, no doubt played a great part in the history of Teutonic law. The difficult questions connected with them have been acutely discussed by competent critics, who are not by any means unanimous.^ But one or two results seem clear. The Capitula are distinguishable from the Leges. They emanate directly from royal authority, they deal with less important matters, they have, probably, a less permanent effect. In the pure type of Capitulary, the Capitula per se scribenda, there is no pretence of collecting the law from the mouth of the people. Many of them are mere directions to royal officials. The great Capitulate de Villis, the equally important Capitulate de Justitiis Faciendis, of Charles the Great, are of this character. It is very doubtful if the Cap- itula of one king bound his successors; for we frequently find almost verbatim repetitions by successive monarchs. On the other hand, some of the Capitula are legibus addita — incorporated by general consent with, and treated thence- forward as part of, a Lex, or custumal. Many of these are now so embedded in the texts of the Leges, that it requires a trained eye to detect them. Others, like the great Capitu- late Saxonicum of the year 797, declare openly their origin, and testify to the premature appearance of an idea which is, ultimately, to revolutionize law, the idea that the king ^ Cf. Boretius, Beitrdge zur Capitularienkritik. F. de Coulanges, De la confection des lois au temps des Carolingiens (Nouvelles Recherches). M. Th^venin, Lex et Capitula (Biblioth^que de I'Ecole des Hautes Etudes, 1878, fasc. 35, p. 137, «gg.).
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