28.14. 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
[73]
and of almost all the barbarous nations.
[74]
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,
[75]
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
[76]
and of the other
barbarous nations
[77]
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.
[78]
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:
[79]
we shall
presently see the mischiefs that arose from it, and how they were
obliged to return to the ancient practice.
Footnotes
[73]
Tit. 32; tit. 57, section 2; tit. 59, section 4.
[74]
See the following note.
[75]
This spirit appears in the "Law of Ripuarians," tit. 59, 4,
and tit. 67, section 5, and in the "Capitulary of Louis the Debonnaire,"
added to the "Law of the Ripuarians" in the year 803, art. 22.
[77]
The law of the Frisians, Lombards, Bavarians, Saxons,
Thuringians, and Burgundians.
[78]
In the "Law of the Burgundians," tit. 8, sectons 1 and 2, on
criminal affairs; and tit. 45, which extends also to civil affairs. See
also the "Law of the Thuringians," tit. 1, section 31; tit. 7, section 6; and
tit. 8; and the "Law of the Alemans," tit. 89; the "Law of the Bavarians,"
tit. 8, cap. ii, section 6, and cap. iii, section 1, and tit. 9, cap. iv, section 4; the "Law of the Frisians," tit. 2, section 3, and tit. 14, section 4; the "Law
of the Lombards," book i, tit. 32, section 3, and tit. 35, section 1, and book ii, tit.
35, section 2.
[79]
See chap. xiv, toward the end.
