Montesquieu

The Salic law did not allow proof by sin­gle com­bat ; the law of the Ripuarians1 and almost all2 those of the bar­ba­rian peo­ples did accept it. It appears to me that the law of com­bat was a natu­ral sequel and the remedy to the law that esta­bli­shed proofs by nega­tion. When one made a demand, and saw that it was going to be unjustly elu­ded by an oath, what remai­ned for a war­rior to do who saw him­self about to be confoun­ded but to demand satis­fac­tion for the wrong done to him, and even for the per­ju­rer’s offer ?3 The Salic law, which did not allow the prac­tice of proofs by nega­tion, did not need proof by com­bat, and did not accept it ; but the law of the Ripuarians4 and of the other bar­ba­rian peo­ples,5 which accep­ted the prac­tice of proofs by nega­tion, were for­ced to esta­blish proof by com­bat.

I invite the rea­der to ins­pect the two famous pro­vi­sions of Gundebald, king of Burgundy, on this mat­ter6 : he will see that they are taken from the nature of the thing. What was nee­ded, in the lan­guage of the laws of the bar­ba­rians, was to take the oath out of the hands of a man who meant to abuse it.

Among the Lombards, the law of Rhotaris allo­wed cases where it would free the man who defen­ded him­self with an oath from being fur­ther haras­sed by a com­bat. This prac­tice was exten­ded7 ; we shall see sub­se­quently what harm resul­ted from it, and how the old prac­tice ulti­ma­tely had to be rever­ted to.

Tit. 32, tit. 57, §2, tit. 59, §4.

See note below.

This spirit appears well before the law of the Ripuarians (tit. 59, §4, and tit. 67, §5) and the capitulary of Louis the Debonaire appended to the law of the Ripuarians of the year 803 (art. 22).

See this law.

The law of the Frisians, the Lombards, the Bavarians, the Saxons, the Thuringians and Burgundians.

In The Law of the Burgundians, tit. 8, §1–2 on criminal affairs ; and tit. 45 which also bears on civil affaires. See also the law of the Thuringians, tit. 1, §31, tit. 7, §6, and tit. 8, and the law of the Germans, tit. 89, the law of the Bavarians, tit. 8, ch. ii, §6, and ch. iii, §1, and tit. 9, ch. iv, §4, the law of the Frisians, tit. 11, §3, and tit. 14, §4, the Leges Langobardoroum, book 1, tit. 32, §3, and tit. 35, §1, and book II, tit. 35, §2.

See below, ch. xviii at the end.