Montesquieu
 

XXVIII.13 The difference between the Salic law or law of the Salian Franks, and the law of the Ripuarian Franks and other barbarian peoples

The Salic law did not allow the prac­tice of proofs by nega­tion ; that is, by the Salic law, the per­son who made a demand or an accu­sa­tion had to prove it, and it was not enough for the accu­sed to deny it : which is consis­tent with the laws of almost all nations on earth.

The spi­rit of the law of the Ripuarian Franks was enti­rely dif­fe­rent1 : it was satis­fied with proofs by nega­tion, and the per­son against whom a demand or accu­sa­tion was made could in most cases jus­tify him­self by swea­ring with a cer­tain num­ber of wit­nes­ses that he had not done what was being impu­ted to him. The num­ber of wit­nes­ses who had to swear increa­sed with the impor­tance of the busi­ness at hand2 : it went some­ti­mes as high as seventy-two.3 The laws of the Germans, Bavarians, Thuringii, those of the Frisians, Saxons, Lombards and Burgundians were made on the same model as those of the Ripuarians.

I have said that the Salic law did not allow proofs by nega­tion. There was, howe­ver, one case where it allo­wed them, but in this case it did not allow them alone and without the sup­port of posi­tive evi­dence.4 The plain­tiff had his wit­nes­ses heard to esta­blish his demand5 ; the defen­dant had his heard to jus­tify him, and the judge sought the truth in the tes­ti­mo­nies on one side and the other.6 This prac­tice was very dif­fe­rent from that of the Ripuarian laws and other bar­ba­rian laws, where an accu­sed jus­ti­fied him­self by swea­ring that he was not guilty and having his family swear that he had spo­ken the truth. These laws could suit only a peo­ple that had some sim­pli­city and a cer­tain natu­ral can­dor ; legis­la­tors even had to pre­vent its abuse, as we shall shortly see.

This relates to what Tacitus says : that the German peoples had common practices and local practices.

Law of the Ripuarians, tit. 6, 7, 8, and others.

Ibid., tit. 11, 12, and 17.

It is the case of a certain Antrustion, in other words a vassal of the king in whom one expected greater candor was accused ; see tit. 76 of Pactus legis Salicæ.

See tit. 76. of Pactus legis Salicæ.

As is still practiced in England.