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ssed upon him according to the custom of the place。
In the reign of King Pepin； the customs then established had not the same force as the laws； but it was not long before the laws gave way to the customs。 And as new regulations are generally remedies that imply a present evil； it may well be imagined that as early as Pepin's time； they began to prefer the customs to the established laws。
What has been said sufficiently explains the manner in which the Roman law began so very early to become territorial； as may be seen in the edict of Pistes； and how the Gothic law continued still in force； as appears by the synod of Troyes above…mentioned。＇66＇ The Roman had become the general personal law； and the Gothic the particular personal law； consequently the Roman law was territorial。 But how came it； some will ask； that the personal laws of the Barbarians fell everywhere into disuse； while the Roman law was continued as a territorial institution in the Visigoth and Burgundian provinces？ I answer that even the Roman law had very nearly the same fate as the other personal institutions； otherwise we would still have the Theodosian code in those provinces where the Roman law was territorial； whereas we have the institutes of Justinian。 Those provinces retained scarcely anything more than the name of the country under the Roman； or written law； than the natural affection which people have for their own institutions； especially when they consider them as privileges； and a few regulations of the Roman law which were not yet forgotten。 This was； however； sufficient to produce such an effect that； when Justinian's compilation appeared； it was received in the provinces of the Gothic and Burgundian demesne as a written law； whereas it was admitted only as written reason in the ancient demesne of the Franks。
13。 Difference between the Salic law； or that of the Salian Franks； and that of the Ripuarian Franks and other barbarous Nations。 The Salic law did not allow of the custom of negative proofs； that is； if a person brought a demand or charge against another； he was obliged by the Salic law to prove it； and it was not sufficient for the second to deny it； which is agreeable to the laws of almost all nations。
The law of the Ripuarian Franks had quite a different spirit；＇67＇ it was contented with negative proofs； and the person） against whom a demand or accusation was brought； might clear himself； in most cases； by swearing； in conjunction with a certain number of witnesses； that he had not committed the crime laid to his charge。 The number of witnesses who were obliged to swear＇68＇ increased in proportion to the importance of the affair； sometimes it amounted to seventy…two。＇69＇ The laws of the Alemans； Bavarians； Thuringians； Frisians； Saxons； Lombards； and Burgundians were formed on the same plan as those of the Ripuarian。
I observed that the Salic law did not allow of negative proofs。 There was one case； however； in which they were allowed：＇70＇ but even then they were not admitted alone； and without the concurrence of positive proofs。 The plaintiff caused witnesses to be heard；＇71＇ in order to ground his action； the defendant produced also witnesses on his side； and the judge was to come at the truth by comparing those testimonies。＇72＇ This practice was vastly different from that of the Ripuarian； and other barbarous laws； where it was customary for the party accused to clear himself by swearing he was not guilty； and by making his relatives also swear that he had told the truth。 These laws could be suitable only to a people remarkable for their natural simplicity and candour； we shall see presently that the legislators were obliged to take proper methods to prevent their being abused。
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。
15。 A Reflection。 I do not pretend to deny that in the changes made in the code of the Barbarian laws； in the regulations added to that code； and in the body of the Capitularies； it is possible to find some passages where the trial by combat is not a consequence of the negative proof。 Particular circumstances might； in the course of many ages； give rise to particular laws。 I speak only of the general spirit of the laws of the Germans； of their nature and origin； I speak of the ancient customs of those people that were either hinted at or established by those laws； and this is the only matter in question。
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。
17。 Particular Notions of our Ancestors。 It is astonishing that our ancestors should thus rest the honour； fortune and life of the subject； on things that depended less on reason than on hazard； and that they should incessantly make use of proofs incapable of convicting； and that had no manner of connection either with innocence or guilt。
The Germans； who had never been subdued；＇83＇ enjoyed an excessive independence。 Different families waged war with each other＇84＇ to obtain satisfaction for murders； robberies or affronts。 This custom was moderated by subjecting these hostilities to rules； it was ordained that they should be no longer committed but by the direction and under the eye of the magistrate。＇85＇ This was far preferable to a general licence of annoying each other。
As the Turks in their civil wars look upon the first victory as a decision of heaven in favour of the victor； so the inhabitants of Germany in their private quarrels considered the event of a combat as a decree of Providence； ever attentive to punish the criminal or the usurper。
Tacitus informs us that when one German nation intended to declare war against another； they looked out for a prisoner who was to fight with one of their people； and by the event they judged of the success of the war。 A nation who believed that public quarrels could be determined by a single combat might very well think that it was proper also for deciding the disputes of individuals。
Gundebald； King of Burgundy； gave the greatest sanction to the custom of legal duels。＇86＇ The reason he assigns for this law is mentioned in his edict； 〃It is；〃 says he； 〃in order to prevent our subjects from attesting by oath what is uncertain； and perjuring themselves about what is certain。〃 Thus； while the clergy declared that an impious law which permitted combats；＇87＇ the Burgundian Kings looked upon that as a sacrilegious law which authorized the taking of an oath。
The trial by combat had