party accused to clear himself by swearing he was not guilty, and by
making his relatives 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.
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 law of Rotharis admits of cases in which a man
who had made his defence by oath should not be suffered to undergo the
hardship of a duel. This custom spread itself further: we shall
presently see the mischiefs that arose from it, and how they were
obliged to return to the ancient practice.
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
customs of those people that were either hinted at or established by
those laws; and this is the only matter in question.
16. Of the Ordeal or Trial by boiling Water, established by the Salic
Law. The Salic law allowed of the ordeal, or trial by boiling water;
and as this trial was excessively cruel, the law found an expedient to
soften 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 a thing 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 middle course, that before sentence passed, both