Heineccius, (Element. Jur. Germ.
l. iii. No. 1-72.) I cannot find any proof that, under the Merovingian
race, the scabini, or assessors, were chosen by the people. * Note: The
question of the scabini is treated at considerable length by Savigny. He
questions the existence of the scabini anterior to Charlemagne. Before
this time the decision was by an open court of the freemen, the boni
Romische Recht, vol. i. p. 195. et seq.--M.]

[Footnote 78: Gregor. Turon. l. viii. c. 9, in tom. ii. p. 316.
Montesquieu observes, (Esprit des Loix. l. xxviii. c. 13,) that the
Salic law did not admit these negative proofs so universally established
in the Barbaric codes. Yet this obscure concubine (Fredegundis,) who
became the wife of the grandson of Clovis, must have followed the Salic
law.]

[Footnote 79: Muratori, in the Antiquities of Italy, has given two
Dissertations (xxxvii. xxxix.) on the judgments of God. It was expected
that fire would not burn the innocent; and that the pure element of
water would not allow the guilty to sink into its bosom.]

But the trials by single combat gradually obtained superior credit and
authority, among a warlike people, who could not believe that a brave
man deserved to suffer, or that a coward deserved to live. [80] Both
in civil and criminal proceedings, the plaintiff, or accuser, the
defendant, or even the witness, were exposed to mortal challenge from
the antagonist who was destitute of legal proofs; and it was incumbent
on them either to desert their cause, or publicly to maintain their
honor, in the lists of battle. They fought either on foot, or on
horseback, according to the custom of their nation; [81] and the
decision of the sword, or lance, was ratified by the sanction of Heaven,
of the judge, and of the people. This sanguinary law was introduced
into Gaul by the Burgundians; and their legislator Gundobald [82]
condescended to answer the complaints and objections of his subject
Avitus. "Is it not true," said the king of Burgundy to the bishop, "that
the event of national wars, and private combats, is directed by the
judgment of God; and that his providence awards the victory to the
juster cause?" By such prevailing arguments, the absurd and cruel
practice of judicial duels, which had been peculiar to some tribes of
Germany, was propagated and established in all the monarchies of Europe,
from Sicily to the Baltic. At the end of ten centuries, the reign
of legal violence was not totally