IV. THE WERGELDS AND DIVISION OF CLASSES IN THE ‘LEX RIPUARIORUM.’
The customs of the Ripuarian Franks as to wergelds, as might be expected, do not seem to have varied much from those of the Salic Franks. They were probably neighbours in close contact with each other, and, judging from the laws, the population of the district was a mixed one.
Wergeld of freeman as under the Lex Salica, 200 gold solidi. That of the official threefold.
The wergeld of the Ripuarian ingenuus, like that of the Salic Frank or barbarian living under the Lex Salica, was 200 gold solidi, and 12 co-swearers were required to deny the homicide (Tit. VII.).
Here again official position seems, as under the Salic law, to be protected by a triple wergeld. The grafio or comes, who was a fiscal judge, had a wergeld of 600 solidi (Tit. LIII.). The payment for one in truste regis was also 600 solidi (Tit. XI.).
On the other hand, the wergeld of a ‘homo regis’ (Tit. IX.), like that of the ‘puer regis’ of the Salic law, was only 100 solidi, and that of the ‘man’ of the Church the same (Tit. X.), i.e. half that of the Ripuarian ingenuus.
Consistently with this, the triple payment for killing a woman between childbearing and 40, as also in the Salic Law, was 600 solidi, whilst the wergeld of the ‘femina regia’ or ‘ecclesiastica’ was only 300 solidi.
There are apparently hardly any indications as to how or to whom the wergelds were to be paid. There is only one reference to the parentes, and that is not connected with the wergelds. In Tit. LXXXV. it is stated that he who shall disinter a corpse and rob it shall pay 200 solidi and be ‘expelled till he shall satisfy the parentes.’
The murderer alone seems to be responsible, unless indeed the few words added to the clauses imposing the triple wergeld of 600 solidi upon the murderer of a woman may be taken to be of general application. The words are these:—
‘If the murderer shall be poor, so that he cannot pay at once, then let him pay per tres decessiones filiorum.’
Has it really come to this, that since the Edict of Childeric II. came into force the parentes are released, and the descendants of the murderer, for three generations, are to be in slavery till the wergeld is paid? It may be so, for the penalty in default of payment of the wergeld probably included his own slavery, which involved with it that of his descendants.
The fisc gradually takes the place of the kindred.
The ancient tribal tradition that within the family there could be no feud or wergeld, but exile only, was still apparently in force. In Title LXIX. there is a clause which enacts that if any one shall slay one next in kin (‘proximus sanguinis’) he shall suffer exile and all his goods shall go to the fisc. This exile of the slayer of a near kinsman and forfeiture of his goods to the fisc seems to be almost the only distinct important survival of tribal feeling, apparently neither wergeld nor the death of the slayer being admitted. But in this case the fisc was, as usual, the gainer. Parricide under any system of criminal law would be a capital crime. The pertinacity with which the custom that, being a crime within the kindred, there could be no feud and therefore no wergeld, was adhered to in the midst of manifold changes in circumstances, feeling, and law, is very remarkable.
There is not much else in the Ripuarian laws throwing light upon tribal customs as regards the solidarity of the kindred. But there is a good deal of interesting information upon the important subject of the treatment of strangers in blood.
Distinction between persons living under Salic law and those living under Roman law who were treated as strangers in blood.
We have seen that in the Lex Salica the definition of the ingenuus with a wergeld of 200 solidi was the Francus or barbarus living under Salic law. The ‘barbarus’ who lived under Salic law was no longer a stranger; he had in fact become a Frank. As we should say, he had been naturalised. Hence there was no inconsistency in the apparent occasional indiscriminate use of the words ‘Francus’ and ‘ingenuus.’ They meant the same thing. But there is nothing to show that the ordinary Gallo-Roman was included under the term ‘barbarus who lived under Salic law.’ On the other hand, we find him living under the Roman law.
In considering the method of dealing with people of so mixed a population as that of the Ripuarian district it is very important to recognise how, under tribal custom, every man continued to live under the law under which he was born, until by some legal process his nationality, so to speak, was admitted to be changed. The Cymric example has shown us how strictly the tribal blood and admission from outside into the tribe were guarded. In such a mixed population as that of the Ripuarian district, the strictness may have been somewhat relaxed, and the formalities of admission less difficult. But there is evidence enough, I think (with great deference to M. Fustel de Coulanges’ doubts on the subject), to show that to some extent at any rate social distinctions were still founded upon ‘difference of blood.’ At all events it is worth while to examine the additional evidence afforded by some clauses in the Ripuarian laws.
Strangers of allied tribes have wergelds according to the law of their birth, but if they cannot find compurgators must go to the ordeal.
In Tit. XXXI. it is stated that Franks, Burgundians, Alamanni, and others, of whatever nation, living in the Ripuarian country, are to be judged and dealt with, if guilty, according to the law of the place of their birth, and not by the Ripuarian law, and it is significantly added that (living away from their kinsmen as they often must be) if they cannot find compurgators they must clear themselves by the ordeal of ‘fire or lot.’[122]
Here we come upon one of the strongest tests of tribal custom in its insistence upon the necessity of a man being surrounded by a kindred before he can be a fully recognised tribesman. Unless he be surrounded by kinsmen who can swear for him, under tribal custom, he must have recourse to the ordeal in case of any criminal charge.
There is a clause, not inconsistent, I think, with Tit. XXXI., which seems to draw a clear distinction in favour of tribes more or less nearly allied in blood with Franks, viz. the Burgundians, Alamanni, Bavarians, Saxons, and Frisians, resident in the Ripuarian district, as contrasted with the Romanus, who surely must be the Gallo-Roman.
In Title XXXVI. the following wergelds are stated, the slayer being a Ripuarian in all cases:—
| A stranger Frank | 200 solidi | |
| ” ” Burgundian | 160 ” | |
| ” ” Romanus | 100 ” | |
| ” ” Alamann | } | 160 ” |
| ” ” Frisian | ||
| ” ” Bavarian | ||
| ” ” Saxon |
Wergeld of the Romanus 100 solidi instead of 200 or 160 solidi.
Thus the Roman stranger is placed in the lowest grade. His wergeld is only 100 solidi—half that of the Ripuarian or Salic Frank—whilst those tribes nearer in blood to the Frank are classed together with a wergeld of 160 solidi, not much less than that of the Frank. Indeed, there is reason to believe that these were the wergelds of the several tribes in force in their own country according to their own laws.[123]
In this connection the view of M. Fustel de Coulanges, that the term ‘Romanus’ is confined to the libertus freed under Roman law, hardly seems natural. The evidence seems to show that the man freed under the formalities of Frankish law thenceforth lived under Salic law and became a Frankish freeman with a freeman’s wergeld of 200 solidi, whilst the man who became a freedman under process of Roman law thenceforth lived under Roman law, and became a Roman freeman—a Romanus—with a wergeld of only 100 solidi. The inference that the difference in status was the result of difference in blood is not altered by the fact that the social status awarded to the Gallo-Roman was the same as that of the libertus in some other laws.
The fact relied upon by M. Fustel de Coulanges, that under the laws of the Burgundians and the Wisigoths the Gallo-Roman was placed in a position of equality with the Teutonic conquerors, need not, I think, affect the view to be taken of his position under the Salic and Ripuarian laws. Tribal custom had to meet in Burgundy and the Wisigothic district with Roman law and Roman institutions still comparatively in their full strength. Marriages with the Gallo-Roman population were encouraged, and the system of wergelds almost entirely superseded. The Frankish conquest was of another kind, and the Frank was hardly likely to care to meet the Gallo-Roman on equal terms.
Position of the freedman or denarialis under Frankish law. His wergeld 200 solidi.
Passing now from the position of the stranger who was recognised as a freeman, let us try to get a clear idea of the position of the freedman under the Ripuarian law, taking the cases of the Frankish freedman and the Roman libertus separately.
In Tit. VIII. the payment for slaying a servus is 36 solidi. In Tit. LXII., if any one makes his servus into a tributarius or a litus and he is killed, the penalty is the same—36 solidi, but if he chooses to make him into a denarialis (i.e. a freedman under Frankish law) then his value shall be 200 solidi.
The tributarius or litus has gained but one step up the ladder of Frankish freedom. But the denarialis, with nearly six times his wergeld, has as regards his wergeld reached the highest rung at a single leap.
But till he has a free kindred, if he has no children the fisc is his heir.
Though, however, as regards wergeld he has done so, in another sense he has by no means done so. Under tribal custom he would not attain to full tribal rights till a kindred had grown up around him. So under Tit. LVII. the ‘homo denarialis,’ notwithstanding his wergeld of 200 solidi, is recognised as having no kindred.
(s. 4) If a ‘homo denariatus’ shall die without children he leaves no other heir than our fisc.
And in full accord with this statement is the following clause in the ‘Capitulare legi Ripuariæ additum’ of A.D. 803.
Homo denarialis non ante hæreditare in suam agnationem poterit quam usque ad terciam generationem perveniat.
So that more of tribal custom still prevails in his case than at first appears. Only in the third generation are full rights of inheritance secured to his successors.
Wergeld of the libertus under Roman law 100 solidi.
If now we turn to the libertus under Roman law, Tit. LXI. states that if any one shall make his servus into a libertus and Roman citizen, if he shall commit a crime he shall be judged by Roman law, and if he be killed the payment shall be 100 solidi: but ‘if he shall die without children he shall have no heir but our fisc.’
Thus, as regards inheritance, the Frankish denarialis and the Roman libertus seem to be treated alike, notwithstanding the difference of wergeld.
Turning to another matter, the Ripuarian laws, being of later date than the Lex Salica, made provision for the wergelds of the clergy.
Wergelds of the clergy, and of their ‘men.’
Tit. XXXVI. provided that the clergy should be compounded for according to their birth, whether of the class of servi, or men of the king or of the Church, or liti, or ingenui. If ingenui, they were to be compounded for with 200 solidi. Then the wergelds of the higher clergy are stated as follows:—
| Subdeacon | 400 solidi |
| Deacon | 500 ” |
| Priest | 600 ” |
| Bishop | 900 ” |
And there is a long clause De Tabulariis (Tit. LVIII.) providing that servi may be made under process of Roman law tabularii of the Church, so that they and their descendants shall be and remain servants of the Church, and render the proper services of tabularii to the Church, without any one having power further to enfranchise them. In case of their death without children the Church is to be their heir. These appear to be the ‘men of the Church’ whose wergeld was 100 solidi.
The clause ‘De alodibus.’
The Tit. LVI. De alodibus is as follows:—
Si quis absque liberis defunctus fuerit, si pater materque superstites fuerint in hereditatem succedant.
If any one shall have died without children, if father and mother survive they shall succeed to the hereditas.
Si pater materque non fuerint, frater et soror succedant.
If there are not father and mother, brother and sister shall succeed.
Si autem nec eos habuerit, tunc soror matris patrisque succedant. Et deinceps usque ad quintam genuculum, qui proximus fuerit, hereditatem succedat.
But if he has not these either, then the sister of the mother and the sister of the father shall succeed. And further, up to the fifth knee, whoever is nearest shall succeed to the inheritance.
Sed cum virilis sexus extiterit, femina in hereditatem aviaticam non succedat.
But as long as the male sex survive, a woman shall not succeed to the hereditas aviatica.
All that need be remarked regarding this title is, first its close resemblance to the clause ‘de alodis’ in the Lex Salica and the confirmation given by the phrase ‘hereditas aviatica’ to the family character of the ‘alod,’ and secondly that it seems to belong to the time when female succession was favoured.
Whether the ‘hereditas aviatica’ included the whole alod or only the land of the alod, on failure of male heirs, females were now to succeed.
The traditional value of animals in payment of wergelds. The wergeld of 200 solidi = 100 oxen.
There remains only to be noticed the interesting addition to Tit. XXXVI. which enacts that if any one ought to pay wergeld he should reckon, inter alia:—
| The ox, horned, seeing, and sound, for | 2 solidi |
| The cow, horned, seeing, and sound, for [3 or] | 1 solidus |
| The horse, seeing and sound, for | 6 solidi |
| The mare, seeing and sound, for | 3 ” |
And this is followed by a final clause which is found only in some of the manuscripts and which is probably an addition made under Charlemagne:—
If payment shall be made in silver, let 12 denarii be paid for the solidus, sicut antiquitus est constitutum.
Thus our consideration of these laws ends with the fact that, before the disturbance in the currency made by Charlemagne, the wergeld of the Frankish freeman of 200 gold solidi or heavy gold mina was still, in the Ripuarian district at all events, a normal wergeld of 100 oxen.