LVIII. CHA P. policy muft approve. The flower of the nobility of Europe afpired to wear the cross, and to profefs the vows, of these refpectable orders; their fpirit and difcipline were immortal; and the fpeedy donation of twenty-eight thoufand farms, or manors (130), enabled them to fupport a regular force of cavalry and infantry for the defence of Palestine. The aufterity of the convent foon evaporated in the exercise of arms: the world was fcandalized by the pride, avarice, and corruption of these Chriftian foldiers; their claims of immunity and jurifdiction disturbed the harmony of the church and ftate; and the public peace was endangered by their jealous emulation. But in their most diffolute period, the knights of the hospital and temple maintained their fearless and fanatic character: they neglected to live, but they were prepared to die, in the fervice of Chrift; and the spirit of chivalry, the parent and offspring of the crufades, has been tranfplanted by this inftitution from the holy fepulchre to the ifle of Malta (131). Affife of Je- Of The fpirit of freedom, which pervades the feudal institutions, was felt in its strongest energy by the volunteers 1099-1369. of the cross, who elected for their chief the moft deserving of his peers. Amidft the flaves of Afia, unconscious of the leffon or example, a model of political liberty was introduced: and the laws of the French kingdom are derived from the pureft fource of equality and justice. fuch laws, the first and indispensible condition is the affent of those, whose obedience they require, and for whose benefit they are defigned. No fooner had Godfrey of Bouillon accepted the office of fupreme magistrate, than he folicited the public and private advice of the Latin pilgrims, who were the beft fkilled in the ftatutes and customs of Europe. From these materials, with the counsel and approbation of the patriarch and barons, of the clergy and laity, Godfrey compofed the ASSISE OF JERUSA LEM (130) Matthew Paris, Hift. Major, p. 544. He affigns to the Hofpitalers 19,000, to the Templars 9,000 maneria, a word of much higher import (as Ducange has rightly obferved) in the English than in the French idiom. Manor is a lordship, mandir a dwelling. (13) In the three first books of the Hiftoire des Chevaliers de Malthe, par l'Abbé de Vertot, the reader may amufe himself with a fair, and fometimes flattering, picture of the order, while it was employed for the defence of Paleftine. The fubfequent books pursue their emigrations to Rhodes and Malta. LVIII. LEM (132), a precious monument of feudal jurisprudence. CHA P. The new code, attefted by the feals of the king, the pa triarch, and the viscount of Jerufalem, was depofited in the holy fepulchre, enriched with the improvements of fucceeding times, and refpectfully confulted as often as any doubtful question arose in the tribunals of Palestine. With the kingdom and city, all was loft (133): the fragments of the written law were preferved by jealous tradition (134) and variable practice till the middle of the thirteenth century: the code was restored by the pen of John d'Ibelin, count of Jaffa, one of the principal feudatories (135); and the final revifion was accomplished in the year thirteen hundred and fixty-nine, for the ufe of the Latin kingdom of Cyprus (136). The juftice and freedom of the constitution were main- Court of tained by two tribunals of unequal dignity, which were in- peers. ftituted by Godfrey of Bouillon after the conqueft of Jerufalem. The king, in perfon, prefided in the uppercourt, the court of the barons. Of these the four most confpicuous were the prince of Galilee, the lord of Sidon and Cæfarea, and the counts of Jaffa and Tripoli, who, perhaps (132) The Affifes de Jerufalem, in old law French, were printed with Beaumanoir's Coutumes de Beauvoifis (Bourges and Paris, 1690, in folio), and illuftrated by Gafpard Thaumas de la Thaumaffiere, with a comment and gloffary. An Italian verfion had been published in 1535, at Venice, for the use of the kingdom of Cyprus. (133) A la terre perdue, tout fut perdû, is the vigorous expreffion of the Aflife (c. 281.). Yet Jerufalem capitulated with Saladin; the queen and the principal Christians departed in peace; and a code fo precious and fo portable could not provoke the avarice of the conquerors. I have sometimes fufpected the existence of this original copy of the Holy Sepulchre, which might be invented to fanctify and authenticate the traditionary cuftoms of the French in Palestine. (134) A noble lawyer, Raoul de Tabarie, denied the prayer of king Amauri (A.D. † 195—1205), that he would commit his knowledge to writing, and frankly declared, que de ce qu'il favoit, ne feroit-il ja nul borjois fon pareill, ne nul fage homme lettré (c. 281.). (135) The compiler of this work, Jean d'Ibelin, was count of Jaffa and Afcalon, lord of Baruth (Berytus) and Rames, and died A. D. 1266 (Sanut, 1. iii. p. ii. c. 5. 8.). The family of Ibelin, which defcended from a younger brother of a count of Chartres in France, long flourished in Palestine and Cyprus (fee the Lignages de deça Mer, or d'Outremer, c. 6. at the end of the Affifes de Jerufalem, an original book, which records the pedigrees of the French adventurers). (136) By fixteen commiffioners chofen in the states of the island: the work was finished the 3d of November 1369, fealed with four feals, and deposited in the cathedral of Nicofia (see the preface to the Affifes). CHAP. perhaps with the conftable and marshal (137), were in a LVIII. fpecial manner the compeers and judges of each other. But all the nobles, who held their lands immediately of the crown, were intitled and bound to attend the king's court; and each baron exercifed a fimilar jurifdiction in the fubordinate affemblies of his own feudatories. The connection of lord and vaffal was honourable and voluntary: reverence was due to the benefactor, protection to the dependent; but they mutually pledged their faith to each other; and the obligation on either fide might be fufpended by neglect or diffolved by injury. The cognizance of marriages and testaments was blended with religion, and ufurped by the clergy; but the civil and criminal caufes of the nobles, the inheritance and tenure of their fiefs, formed the proper occupation of the fupreme court. Each member was the judge and guardian both of public and private rights. It was his duty to affert with his tongue and fword the lawful claims of the lord; but if an unjust fuperior prefumed to violate the freedom or property of a vaffal, the confederate peers ftood forth to maintain his quarrel by word and deed. They boldly affirmed his innocence and his wrongs; demanded the reftitution of his liberty or his lands; fufpended, after a fruitlefs demand, their own fervice; refcued their brother from prifon; and employed every weapon in his defence, without offering direct violence to the perfon of their lord, which was ever facred in their eyes (138). In their pleadings, replies, and rejoinders, the advocates of the court were fubtle and copious; but the ufe of argument and evidence was often fuperfeded by judicial combat; and the Affife of Jerufalem admits in many cafes this barbarous inftitution, which has been flowly abolished by the laws and manners of Europe. Law of ju- The trial by battle was established in all criminal cafes, dicial com- which affected the life, or limb, or honour, of any per bats. fon; (137) The cautious John d'Ibelin argues, rather than affirms, that Tripoli is the fourth barony, and expreffes fome doubt concerning the right or pretenfion of the conftable and marshal (c. 323). (138) Entre feignor et homme ne n'a que la foi; . . . . mais tant que l'honime doit à fon feignior reverence en toutes chofes (c. 206.). Tous les hommes dudit royaume font par ladite Aflife tenus les uns as autres.... et en celle maniere que le feignor mette main ou facé mettre au cors ou au fié d'aucun d'yaus fans efgard et fans connoiffance de court, que tous les autres doivent venir devant le feignor, &c. (212.). The form of their remon ftrances is conceived with the noble fimplicity of freedom. LVIII. fon; and in all civil transactions, of or above the value of C HAP. one mark of filver. It appears, that in criminal cafes the combat was the privilege of the accufer, who, except in a charge of treafon, avenged his perfonal injury, or the death of those persons whom he had a right to reprefent; but wherever, from the nature of the charge, testimony could be obtained, it was neceffary for him to produce witneffes of the fact. In civil cafes, the combat was not allowed as the means of establishing the claim of the demandant; but he was obliged to produce witneffes who had, or affumed to have, knowledge of the fact. The combat was then the privilege of the defendant; because he charged the witness with an attempt by perjury to take away his right. He came therefore to be in the fame fituation as the appellant in criminal cafes. It was not then as a mode of proof that the combat was received, nor as making negative evidence (according to the fuppofition of Montefquieu) (139); but in every cafe the right to offer battle was founded on the right to purfue by arms the redrefs of an injury; and the judicial combat was fought on the fame principle, and with the fame fpirit, as a private duel. Champions were only allowed to women, and to men maimed or past the age of fixty. The confequence of a defeat was death to the perfon accused, or to the champion or witnefs, as well as to the accuser himself; but in civil cafes, the demandant was punished with infamy and the lofs of his fuit, while his witnefs and champion fuffered an ignominious death. In many cases it was in the option of the judge to award or to refuse the combat; but two are specified, in which it was the inevitable. refult of the challenge; if a faithful vaffal gave the lie to his compeer, who unjustly claimed any portion of their lord's demefnes; or if an unfuccefsful fuitor prefumed to impeach the judgment and veracity of the court. might impeach them, but the terms were fevere and perilous in the fame day he fucceffively fought all the members of the tribunal, even those who had been absent: a fingle defeat was followed by death and infamy; and where none could hope for victory, it is highly probable VOL. VI. : F He that (139) See l'Efprit des Loix, 1. xxviii. In the forty years fince its publi cation, no work has been more read and criticifed; and the spirit of enquiry which it has excited, is not the least of our obligations to the author. LVIII. CHAP. that none would adventure the trial. In the Affife of Je rufalem, the legal fubtlety of the count of Jaffa is more laudably employed to elude, than to facilitate, the judicial combat, which he derives from a principle of honour rather than of fuperftition (140). Court of Among the caufes which enfranchised the plebeians from burgeffes. the yoke of feudal tyranny, the inftitution of cities and corporations is one of the most powerful; and if those of Palestine are coeval with the first crufade, they may be ranked with the most ancient of the Latin world. Many of the pilgrims had efcaped from their lords under the banner of the crofs; and it was the policy of the French princes to tempt their flay by the affurance of the rights and privileges of freemen. It is exprefsly declared in the Aflife of Jerufalem, that after inftituting, for his knights. and barons, the court of peers, in which he prefided himself, Godfrey of Bouillon established a fecond tribunal, in which his perfon was reprefented by his viscount. The jurifdiction of this inferior court extended over the burgeffes of the kingdom; and it was composed of a select number of the most difcreet and worthy citizens, who were fworn to judge, according to the laws, of the actions and fortunes of their equals (141). In the conqueft and fettlement of new cities, the example of Jerufalem was imitated by the kings and their great vaffals; and above thirty fimilar corporations were founded before the lofs of the Holy Land. Another clafs of fubjects, the Syrians (142), or Oriental Chriftians, were oppreffed by the zeal of the clergy, and protected by the toleration of the ftate. Godfrey liftened to their reasonable prayer, that they might be judged by their own national laws. A third court was inftituted Syrians. 4 (140) For the intelligence of this cbfcure and obfolete jurifprudence (c. 80-111.), I am deeply indebted to the friendship of a learned lord, who, with an accurate and difcerning eye, has furveyed the philofophic history of law. By his ftudies, pofterity might be enriched: the merit of the orator and the judge can be felt only by his contemporaries. (141) Louis le GROS, who is confidered as the father of this inftitution in France, did not begin his reign till nine years (A. D. 1108) after Godfrey of Bouillon (Affifes, c. 324.). For its origin and effects, fee the judicious remarks of Dr Robertfon (Hiftory of Charles V. vol. i. p. 30-36. 251265. quarto edition). (142) Every reader converfant with the hiflorians of the crufades, will understand by the peuble des Suriens, the Oriental Chriftians, Melchites, Jacobites, or Neftorians, who had all adopted the ufe of the Arabic lan guage (vol, iv. p. 593.). |