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.