Differences between the Salian Franks, the Ripuarian Franks, and other barbarous Nations

Negative Proof

Negative proof is a person accusing someone and being burdened to prove it beforehand.

The law of the Ripuarian Franks 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.

• The laws of almost all nations allow the accused to deny the accuser.

But the Salic law did not allow negative proofs.

• There was only one case where 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 witnesses of his side.

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. In those laws, 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 for simple people.

The legislators had to take steps to abuse this system.

Chapter 14: Another Difference

THE Salic law did not allow trial by combat even if trial by combat was allowed in the laws of the Ripuarians and of almost all the barbarous nations.

I think that trial by combat is a natural consequence of the law which established negative proofs.

When a defendant is accused and he eludes it by an oath that he did not do it, there is no other remedy for a military man to get justice.

The Salic law did not allow the custom of negative proofs and so it did not need 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.

Combat rescued the oath out from the hands of a person who was going to abuse it.

Among the Lombards, the laws of Rotharis allowed cases were a man who had made his defence by oath, should not be undergo a duel.

This custom spread itself farther.

Chapter 15: A Reflection

Trial by combat might not have been a consequence of the negative proof.

Particular circumstances might, in the course of many ages, have led to particular laws.

I speak only of the general spirit of the laws of the Germans, of their nature and origin.

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 on, 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.

When this negative proof was over, nothing more was needed.

Therefore, the practice of legal duels could not be a consequence of this particular regulation of the Salic law.