28.13. 13. Difference between the Salic law, or that of the Salian Franks,
and that of thee Ripuarian Franks and other barbarous Nations.
The Salic law did not allow of the custom of negative proofs; that is, if a person
brought a demand or charge against another, he was obliged by the Salic
law to prove it, and it was not sufficient for the second to deny it,
which is agreeable to the laws of almost all nations.
The law of the Ripuarian Franks had quite a different spirit;
[67]
it
was contented with negative proofs, and the person) against whom a
demand or accusation was brought, might clear himself, in most cases, by
swearing, in conjunction with a certain number of witnesses, that he had
not committed the crime laid to his charge. The number of witnesses who
were obliged to swear
[68]
increased in proportion to the importance of
the affair; sometimes it amounted to seventy-two.
[69]
The laws of the
Alemans, Bavarians, Thuringians, Frisians, Saxons, Lombards, and
Burgundians were formed on the same plan as those of the Ripuarian.
I observed that the Salic law did not allow of negative proofs.
There was one case, however, in which they were allowed:
[70]
but even
then they were not admitted alone, and without the concurrence of
positive proofs. The plaintiff caused witnesses to be heard,
[71]
in
order to ground his action, the defendant produced also witnesses on his
side, and the judge was to come at the truth by comparing those
testimonies.
[72]
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 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.
Footnotes
[67]
This relates to what Tacitus says. "De Moribus Germanorum," 28,
that the Germans had general and particular customs.
[68]
Law of the Ripuarians, tits. 6, 7, 8, and others.
[69]
Ibid., tits. 11, 12, 17.
[70]
It was when an accusation was brought against an Antrustio, that
is, the king's vassal, who was supposed to be possessed of a greater
degree of liberty. See "Pactus legis Salicæ", tit. 76.
[72]
According to the practice now followed in England.
