Front Page Titles (by Subject) CHAP. XIV.: Another Difference. - Complete Works, vol. 2 The Spirit of Laws
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CHAP. XIV.: Another Difference. - Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 2 The Spirit of Laws 
The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. Vol. 2.
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THE Salic law did not admit of the trial by combat; though it had been received by the laws of the Ripuarians‡ , and of almost all∥ the barbarous nations. 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§ , 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* and of the other barbarous nations† , 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. 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 laws of Rotharis admitted of cases, in which a man who had made his defence by oath, should not be suffered to undergo the fatigue of a duel. This custom spread itself farther:∥ we shall presently see the mischiefs that arose from it, and how they were obliged to return to the ancient practice.
[‡ ]Tit. 32. tit. 57. sect. 2. tit. 59. sect. 4.
[∥ ]See the note underneath.
[§ ]This spirit appears in the law of the Ripuarians, tit. 59. sect. 4. and tit. 67. sect. 5. and in the Capitulary of Lewis the Debonnaire, added to the law of the Ripuarians in the year 803, art. 22.
[* ]See that law.
[† ]This law of the Frisians, Lombards, Bavarians, Saxons, Thuringians, and Burgundians.
[‡ ]In the law of the Burgundians, tit. 8. sect. 1 and 2. on criminal affairs; and tit. 45. which extends also to civil affairs. See also the law of the Thuringians, tit. 1. sect. 31. tit. 7. sect. 6. and tit. 8. and the law of the Alemans, tit. 89. the law of the Bavarians, tit. 8. chap. 2. sect. 6. and chap. 2. sect 1. and tit. 9. chap. 4. sect. 4. the law of the Frisians, tit. 11. sect. 3. and tit. 14. sect. 4. the law of the Lombards, book 1. tit. 32. sect. 3. and tit. 35. sect. 1. and book 2. tit. 35. sect. 2.
[∥ ]See chap. 18. towards the end.