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Pepin's Law of Succession of 768 and the elevation of Carloman and Charles to the throne took place at small gatherings of nobles, and so did Charles' proclamation as successor of his brother in 771 and the important settlement of the Empire in 806. Even important acts of legislation were not taken in hand at the great annual gatherings, but at assemblies of nobles, for instance the decrees of the Capitulare Heristallense of 779, and the incisive rules of the Saxon Law of 797, and perhaps also the comprehensive legislative measures of 802. It was therefore no innovation when under Louis the Pious important laws in the year 816, and the extensive legislation of the year 819, were debated, not at general assemblies of the Empire, but at small meetings of nobles. Without doubt, there was no longer any true participation by the people. Even if it was customary under Charles also to hold a general assembly every year and there to discuss all important affairs of the Empire, especially questions of legislation, yet the monarch was perfectly free to deal with even the most important questions at only a small meeting of nobles.

If we keep these facts in view, we must ask to what purpose was the clumsy institution of the Mayfield? Now that the requirement of the constitution that the people should meet annually to co-operate with the central government was enfeebled, and was now regarded as satisfied if the monarch consulted a considerable number of nobles and took their advice, the sole justification for the perpetuation of the Mayfield lay in military matters; to assemble the army and prepare for a campaign. For this reason, too, Charles chose different dates for holding the Mayfield, holding it amongst other times in the autumn, just as military needs required. The advantage of holding an annual review of the available forces could not outbalance the heavy sacrifice imposed upon the small man. Even the one very important purpose of affording all classes of the population the opportunity of a personal connexion with the centre of government, was no longer of great weight. Owing to the great extension of the Empire it was no longer possible, and it was besides satisfied by the institution of the king's envoys (missi dominici). Thus in the ninth century in times of peace the important reasons for the assembling of the people in arms were lacking. In other words, the Mayfield lost its justification from the moment that war was no longer a regular expression of the life of the State. The Mayfield necessarily disappeared when the great regular military expeditions ceased. This was already the case in the latter years of the reign of Charles the Great and under Louis the Pious. There still occurs for a time the contrast of placita generalia and placita in the old sense, that is in the sense that by the one was meant the assembly of the people equipped for war, and by the other the meetings of the nobles. But even in the latter part of

1 Cf. the proof in Seeliger, Volksrecht und Königsrecht, pp. 336 ff.

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the reign of Charles the former no longer took place annually, and instead of the people, only the nobles were summoned.

The transition from the old assembly of the army to the meetings of the nobles was easily and smoothly accomplished in the following manner. The spiritual and temporal nobles who acted at the Mayfields. as the representatives of the people were responsible for the carrying out of the royal summons to the great annual gatherings. To them the command was issued to appear fully equipped - hostiliter. That implied the mobilisation of the forces as well as the call to the great annual assembly. Inasmuch as the command to the nobles now was to appear in the royal presence not hostiliter but simpliciter, i.e. not with the people under arms but with a simple escort, the change required by circumstances was brought about. The great annual gatherings which in earlier times had been gatherings of the nation under arms (Marchfield, Mayfield), became general meetings of nobles. There still existed a difference between the general and the little assembly, but it meant by this time a distinction between general and special meetings of nobles. And Hincmar, who lived two generations later than Charles, knew, as may easily be understood, only national gatherings of an aristocratic character. He understood the difference between the great and the little assembly in the sense of his own time, namely as between two kinds of meetings of nobles. If he then attributes only preliminary deliberations to the smaller gatherings, the composition of which was, as a matter of fact, dependent on the will of the monarch, and ascribes real decisions only to the general meetings of nobles, this arises from his aristocratic conception of the constitution and from his desire to assign to the aristocracy the position of a second independent power beside the monarch. But the age of Charles the Great knew nothing of this.

Thus the genuinely Germanic participation of the people in the government of the State appears strongly repressed under Charles the Great. In the Merovingian period it already seemed occasionally quite subdued, while with the rise of the Germanic dynasty of the Carlovingians it made a vigorous struggle to the front again, but it was really checked by the great personality of Charles and at the same time by the advance of the theocratic element in the monarchical authority. Charles the Great did not bind himself to ask the assent of a national assembly of definite organisation, but transacted the most important state business only at small gatherings of nobles, and thus made any visible limitation of his monarchical power by people or aristocracy illusory, and reduced the participation of the people as a matter of fact to a consultation of those classes of the people whose co-operation seemed to him desirable according to the occasion. At one time he laid the matter before the great annual gathering, at another before a small meeting of nobles, at another before the representatives

of the tribe concerned in the new laws. But in spite of this, there remains the peculiar fact that reference is always made to participation by the subjects and that it was clearly regarded as necessary. Thus wo can say that the idea of participation by the people was not fully overcome even by the violent effort of the monarchy under Charles the Great. It was greatly hindered, but it lived on to attain new force in favourable circumstances.

Is a similar relation of king and people to be observed in connexion with the formation of Law and with legislation?

Law is formed by custom and legislation. For a long time the formation of Law through custom preponderated among the Germanic peoples. Though many a precept had been given in old times, and many a sage had acted as lawgiver, the systematic development of Law through legislation belongs to a later stage of civilisation, to the time when the Germanic races had come under the influence of the superior Roman civilisation. From the fifth century the Germanic peoples in the mass, the West Goths, the Franks, the Burgundians, the Alemanni, the Bavarians, the Frisians, the Saxons, attained step by step to a written form of their Laws as they came into immediate contact with Roman civilisation. These great systematic codices, called the "Folkrights,” were intended for the most part only to formulate the Right already existing among the people, but naturally they frequently advanced consciously or unconsciously to new statutes. And then in the Frankish kingdoms, from the sixth century onwards, appended to the Folkright, came special laws, royal regulations which supplemented or modified the outlines of the Folkright, or dealt with new spheres of law. From the eighth decade of the ninth century these special edicts of the kings, on account of their divisions into smaller sections (capitula), were called Capitularies, an expression which has been generally adopted by modern historians. Folkright and Capitularies are the two great sources of the Frankish period which afford information regarding the laws of corporate life on all sides. They are the result of those new demands of a more definite corporate life with common aims, demands which were already arising in the older Merovingian period and reached the summit of their development and their fullest satisfaction through Charles the Great.

In the year 802—so relate the Annales Laureshamenses-the Emperor Charles summoned the dukes, counts, and the rest of the people with the legislators, recited and amended the different Folkrights and caused them when so amended to be written down, and issued the rule that the judges should judge only according to the written Law. This account, freed from its exaggerations, agrees with the report of the historian Einhard, “When Charles the Great, after accepting the imperial dignity, observed that there were many defects in the laws of the people and that the Franks have two Laws differing from each other in many points,

he intended supplying what was lacking, harmonising what was contradictory, improving what was bad and useless. But of all this he only carried through the addition to the laws of some chapters, and even these incomplete. The still unwritten Laws of all the peoples who were subject to his rule, he caused to be written down." The transmission of the laws entirely confirms the accuracy of these accounts. Numerous manuscripts of the Salic and Ripuarian Folkrights testify that in the Carlovingian period, and apparently at Charles the Great's instigation, steps were taken towards re-writing the old laws, but only verbal improvements were intended, not the removal of clauses that had long ceased to be effective. We know further that Charles caused hitherto unwritten Laws to be written down-perhaps portions of the Frisian Folkright, certainly those of the Saxons, Thuringians, and the Chamavi. The Assembly of Aachen of 802 must be regarded as the scene of these legislative efforts. Hither were summoned those familiar with the Laws of the different tribes in order to procure the material.

But the great Emperor's comprehensive scheme of reform remained unaccomplished, and it was necessary to issue numerous regulations on particular points to correct and to supplement the old copies in order to satisfy the need for a development of the Law. It was through the Capitularies that this was accomplished. They had long been known in the kingdom of the Franks, but under Charles the Great they attained the vast extent to which the remains that have come down to us testify.

Year by year prescripts of every possible kind were issued, decrees which claimed validity either in the whole kingdom or in single districts, rules of a general or special character, explanations of existing regulations of these Laws, supplements to correct conspicuous deficiencies in previous laws, and in addition directions for the state officials in their government.

Are we to separate these laws and ordinances into two groups, according to the difference of the authorities, summoned conformably to the constitution and concerned in their origin, and according to the difference in their contents and the period of their validity? Are we to oppose Folkright to the King's Law?

In the period before the founding of the Frankish Empire the different German tribes had developed their Law mainly according to custom and popularity. To do so was a matter for the people. But when the rule of the Merovingian kings had extended over the different Germanic tribes, this purely popular method began to be disused and another to be followed as well. Although their own. hereditary right was to remain to the members of the different tribes and what is called the Principle of Personality was recognised, yet a great change in the tribal Law was unavoidable, due to the Empire

C. MED. H. VOL. II. CH. XXI.

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Folkright and King's Law

and to the royal power representing the Empire. For the Empire laid claim to the supreme power of making laws quite generally and unconditionally. It of course regulated the Right of the people chiefly in reference to the authority of the Empire, but it by no means renounced influence on the laws of the members of the tribe amongst themselves, on penal, legal, and private Law. And so on the one hand stands the Right of the tribe which still continued to be developed in the local courts the Folkright, while on the other hand are the laws issued by the imperial authority which in a special way supplement the Folkright and develop or often contradict it. These are the King's Law, issuing directly from the king, the creator and upholder of the Empire. In fact two powers take part in the formation of the law — king and people. For the historical understanding of social institutions, it is of interest to seek their different origins, and in the case of many laws it is of importance to determine whether they issued from the judicial consciousness of the people themselves whom they concerned or whether they were dictated by the royal authority. In a certain sense the working of two different forces in the formation of the Law is rightly recognised in the assertion of a legal dualism, in the contrast of Folkright and King's Law.1

But only in a certain sense. Any deeper systematic distinction is erroneous. Erroneous is the assumption that according to the constitution the king could exercise no influence on the Right of the tribes united in the Empire, and that only in virtue of his Banright, that is, his power of command, essentially contrary to law, did he decree new laws, which as King's Right entered into rivalry and competition with the Folkright. It is erroneous to assume that Folkright is to be understood merely as Customary Right and the King's Right as Right of legislation. Erroneous are all further theories about the constitution founded on this idea. Not by virtue of a power of coercion, but by virtue of the power of making laws inherent in the monarchy did the king influence the development of Law; not only through laws but also through his officials, on occasion of delivery of judgment, did he bring into use new aims of the King's Law. The opinion must be rejected that in the Frankish period, afterwards as before, the people continued to develop their Right by themselves and for themselves according to custom, while the king on the contrary issued ordinances resembling laws and so created a second system of Law in opposition to the Folkright.2

But another attempt also to systematise the dualism of Folkright and King's Law3 must be looked upon as unsuccessful, the attempt namely to discover the characteristic difference between Folkright and the King's Law of the Frankish monarchy even in the existing laws

1This dualism was first, with great clearness, emphasised by Sohm.

2 This is Sohm's view.

So Boretius, Brunner, Schroeder, and several others.