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The Salic, Burgundian, and Visigoth laws were, therefore, extremely neglected at the end of the second race; and at the beginning of the third, they were scarcely ever mentioned.

Under the first and second race, the nation was often assembled; that is, the lords and bishops; the commons were not yet thought of. In these assemblies, attempts were made to regulate the clergy, a body which formed itself, if I may so speak, under the conquerors, and established its privileges. The laws made in these assemblies are what we call the Capitularies. Hence four things ensued: the feudal laws were established and a great part of the church revenues was administered by those laws; the clergy effected a wider separation, and neglected those decrees of reformation where they themselves were not the only reformers;[56] a collection was made of the canons of councils and of the decretals of popes;[57] and these the clergy received, as coming from a purer source. Ever since the erection of the grand fiefs, our kings, as we have already observed, had no longer any deputies in the provinces to enforce the observance of their laws; and hence it is that, under the third race, we find no more mention made of Capitularies.

10. The same Subject continued. Several capitularies were added to the law of the Lombards, as well as to the Salic and Bavarian laws. The reason of this has been a matter of inquiry; but it must be sought for in the thing itself. There were several sorts of capitularies. Some had relation to political government, others to economical, most of them to ecclesiastical polity, and some few to civil government. Those of the last species were added to the civil law, that is, to the personal laws of each nation; for which reason it is said in the Capitularies that there is nothing stipulated therein contrary to the Roman law.[58] In effect, those capitularies regarding economical, ecclesiastical, or political government had no relation to that law; and those concerning civil government had reference only to the laws of the barbarous people, which were explained, amended, enlarged, or abridged. But the adding of these capitularies to the personal laws occasioned, I imagine, the neglect of the very body of the Capitularies themselves; in times of ignorance, the abridgment of a work often causes the loss of the work itself.

11. Other Causes of the Disuse of the Codes of Barbarian Laws, as well as of the Roman Law, and of the Capitularies. When the German nations subdued the Roman empire, they learned the use of writing; and, in imitation of the Romans, they wrote down their own usages, and digested them into codes.[59] The unhappy reigns which followed that of Charlemagne, the invasions of the Normans and the civil wars, plunged the conquering nations again into the darkness out of which they had emerged, so that reading and writing were quite neglected. Hence it is, that in France and Germany the written laws of the Barbarians, as well as the Roman law and the Capitularies fell into oblivion. The use of writing was better preserved in Italy, where reigned the Popes and the Greek Emperors, and where there were flourishing cities, which enjoyed almost the only commerce in those days. To this neighbourhood of Italy it was owing that the Roman law was preserved in the provinces of Gaul, formerly subject to the Goths and Burgundians; and so much the more, as this law was there a territorial institution, and a kind of privilege. It is probable that the disuse of the Visigoth laws in Spain proceeded from the want of writing, and by the loss of so many laws, customs were everywhere established.

Personal laws fell to the ground. Compositions, and what they call Freda,[60] were regulated more by custom than by the text of these laws. Thus, as in the establishment of the monarchy, they had passed from German customs to written laws; some ages after, they came back from written laws to unwritten customs.

12. Of local Customs. Revolution of the Laws of barbarous Nations, as well as of the Roman Law. By several memorials it appears, that there were local customs, as early as the first and second race. We find mention made of the "custom of the place,"[61] of the "ancient usage,"[62] of "custom,"[63] of "laws,"[64] and of "customs." It has been the opinion of some authors that what went by the name of customs were the laws of the barbarous nations, and what had the appellation of law were the Roman institutes. This cannot possibly be. King Pepin ordained[65] that wherever there should happen to be no law, custom should be complied with; but that it should never be preferred to the law. Now, to pretend that the Roman law was preferred to the codes of the laws of the Barbarians is subverting all memorials of antiquity, and especially those codes of Barbarian laws, which constantly affirm the contrary.

So far were the laws of the barbarous nations from being those customs, that it was these very laws, as personal institutions, which introduced them. The Salic law, for instance, was a personal law; but generally, or almost generally, in places inhabited by the Salian Franks, this Salic law, how personal soever, became, in respect to those Salian Franks, a territorial institution, and was personal only in regard to those Franks who lived elsewhere. Now if several Burgundians, Alemans, or even Romans should happen to have frequent disputes, in a place where the Salic law was territorial, they must have been determined by the laws of those people; and a great number of decisions agreeable to some of those laws must have introduced new customs into the country. This explains the constitution of Pepin. It was natural that those customs should affect even the Franks who lived on the spot, in cases not decided by the Salic law; but it was not natural that they should prevail over the Salic law itself.

Thus there were in each place an established law and received customs which served as a supplement to that law when they did not contradict it.

They might even happen to supply a law that was in no way territorial; and to continue the same example, if a Burgundian was judged by the law of his own nation, in a place where the Salic law was territorial, and the case happened not to be explicitly mentioned in the very text of this law, there is no manner of doubt but that judgment would have been passed 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.