28.16. 16. Of the Ordeal or Trial by boiling Water, established by the
Salic Law.
The Salic law
[80]
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.
[81]
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,
[82]
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 completed, 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.
Footnotes
[80]
As also some other laws of the Barbarians.
