Differences between the Salian Franks, the Ripuarian Franks, and other barbarous Nations.March 25, 2020
The Salic law did not allow negative proofs. The laws of almost all nations allow the accused to deny the accuser. But the Salic law did not.
The law of the Ripuarian Franks was quite different as it allowed negative proofs. The accused could clear himself by swearing among witnesses that he had not committed the crime. The number of witnesses increased in proportion to the importance of the affair. Sometimes it amounted to 72.
The laws of the Alemans, Bavarians, Thuringians, Frisians, Saxons, Lombards, and Burgundians, were formed on the same plan as those of the Ripuarians.
There was one case, however, in which they were allowed; But even then they were not admitted alone, and without the concurrence of positive proofs. The plaintiff caused witnesses to be heard, in order to ground his action; The defendant produced also witnesses of his side; and the judge was to come at the truth, by comparing those testimonies. This practice was vastly different from that of the Ripuarian, and other barbarous laws, where it was customary for the party accused to clear himself, by swearing he was not guilty, and by making his relations also swear that he had told the truth. These laws could be suitable only to a people remarkable for their natural simplicity and candour; We shall see presently that the legislators were obliged to take proper methods to prevent their being abused.
Chapter 14= Another Difference"
THE Salic law did not admit of the trial by combat; though it had been received by the laws of the Ripuarians, and of almost all the barbarous nations.
To me it seems, that the law of combat was a natural consequence, and a remedy of the law which established negative proofs.When an action was brought, and it appeared that the defendant was going to elude it by an oath, what other remedy was left to a military man, who saw himself upon the point of being confounded, than to demand satisfaction for the injury done to him; and even for the attempt of perjury? The Salic law, which did not allow the custom of negative proofs, neither admitted nor had any need of the trial by combat= but the laws of the Ripuarians and of the other barbarous nations, who had adopted the practice of negative proofs, were obliged to establish the trial by combat.
Whoever will please to examine the two famous regulations of Gundebald king of Burgundy concerning this subject, will find they are derived from the very nature of the thing.
It was necessary, according to the language of the Barbarian laws, to rescue the oath out of the hands of a person who was going to abuse it.
Among the Lombards, the laws of Rotharis admitted of cases, in which a man who had made his defence by oath, should not be suffered to undergo the fatigue of a duel. This custom spread itself farther= we shall presently see the mischiefs that arose from it, and how they were obliged to return to the ancient practice.
Chapter 15= A Reflection
I DO not pretend to deny, but that in the changes made in the code of the Barbarian laws, in the regulations added to that code, and in the body of the capitularies, it is possible to find some passages where the trial by combat is not a consequence of the negative proof.
Particular circumstances might, in the course of many ages, give rise to particular laws. I speak only of the general spirit of the laws of the Germans, of their nature and origin; I speak of the ancient oustoms of those people, that were either hinted at or established by those laws; This is the only matter in question.
Chapter 16= The Trial by boiling Water established by the Salic Law
THE Salic law allowed trial by boiling water.
This was excessively cruel and so the law softened its rigour. It permitted the person who had been summoned to make the trial with boiling water, to ransom his hand, with the consent of the adverse party. The accuser, for a particular sum determined by the law, might be satisfied with the oath of a few witnesses, declaring that the accused had not committed the crime.
This was a particular case, in which the Salic law admitted of the negative proof.
This trial was privately agreed upon, which the law permitted only, but did not ordain. The law gave a particular indemnity to the accuser, who would allow the accused to make his defence by a negative proof= the plaintiff was at liberty to be satisfied with the oath of the defendant, as he was at liberty to forgive him the injury.
The law contrived a medium, that before sentence passed, both parties, the one through fear of a terrible trial, the other for the sake of a small indemnity, should terminate their disputes, and put an end to their animosities. It is plain, that when once this negative proof was over, nothing more was requisite; and, therefore, that the practice of legal duels could not be a consequence of this particular regulation of the Salic law.