Now, German writers are not agreed upon the point whether these artificial divisions found in these earliest of the laws ought to be regarded as belonging to ancient German custom or whether they may not rather be traced to Roman influences.[328]
The earliest laws most influenced by Roman traditions.
We have already seen how necessary it is in connection with these early laws to discriminate between ancient custom and the new influences which were working in them in the direction of individualism and the disintegration of the kindred. The earliest laws are, as we have seen, just those in which tribal custom had fared the worst.
Non-tribal division of classes.
In the Alamannic Pactus of the sixth century (Fragment ii. 36) the grades for wergelds were as under:—
(1) ‘baro de minoflidis,’
(2) ‘medianus Alamannus,’
(3) ‘primus’ or ‘meliorissimus Alamannus.’
And these were subdivisions of the ingenuus class, for there were below them the lidus and the servus. In another clause (iii. s. 25) a similar division is applied to animals. The penalties are given for killing ordinary, ‘mediana,’ and ‘meliorissima jumenta.’
In the Burgundian law the division of society into three grades—optimates, mediocres, and inferiores—is found in the Lex Romana and is applied to Romans and Burgundians alike. These divisions seem to supplant those of kindred, and to have no tribal principle at their root.[329]