LVIII.

filver. It appears, that in criminal cafes the CHA P. 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, teftimony 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 Montesquieu ''); but in every cafe the right to offer battle was founded on the right to purfue by arms the redress 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 accufed, or to the champion or witnefs, as well as to the accufer himself; but in civil cafes, the demandant

139 See l'Efprit des Loix, 1. xxviii. In the forty years fince its publication, no work has been more read and criticised; and the fpirit of enquiry which it has excited, is not the leaft of our obligations to the author.

VOL. XI.

H

was

LVII.

CHAP. was punished with infamy and the lofs of his fuit, while his witnefs and champion fuffered an ignominious death. In many cafes it was in the option of the judge to award or to refuse the combat but two are fpecified, 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. He 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 abfent: a fingle defeat was followed by death and infamy; and where none could hope for victory, it is highly probable that none would adventure the trial. In the Aflife of Jerufalem, 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 superstition 14o.

Court of

Among the causes which enfranchised the pleburgetes. beians from the yoke of feudal tyranny, the institution of cities and corporations is one of the moft powerful; and if those of Palestine are coeval with the firft crufade, they may be ranked with the most ancient of the Latin world. Many of the pilgrims had escaped from their lords un

140 For the intelligence of this obfcure and obfolete jurispru dence (c. 80-111.), I am deeply indebted to the friendship of a learned lord, who, with an accurate and discerning eye, has furveyed the philosophic 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.

der

1

LVIII.

der the banner of the crofs; and it was the CHAP.
policy of the French princes to tempt their ftay
by the affurance of the rights and privileges of
freemen. It is exprefsly declared in the Affife
of Jerufalem, that after inftituting, for his knights
and barons, the court of peers, in which he pre-
fided himself, Godfrey of Bouillon established a
fecond tribunal, in which his perfon was repre-
sented by his viscount. The jurisdiction of this
inferior court extended over the burgeffes of the
kingdom; and it was compofed of a select num-
ber of the most discreet and worthy citizens, who
were fworn to judge, according to the laws, of
the actions and fortunes of their cquals 14. 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.

rians 142

Another clafs of fubjects, the Sy- Syrians. or Oriental Chriftians, were oppreffed by the zeal of the clergy, and protected by the toleration of the state. Godfrey listened to their reasonable prayer, that they might be judged by their own national laws. A third court was inftituted for their ufe, of limited and domeftic

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, 1:08) after Godfrey of Bouillon (Affifes, c. 2. 324.). For its origin and effects, fee the judicious remarks of Dr. Robertfon (Hiftory of Charles V. vol. i. p. 30-36. 251-265. quarto edition).

142 Every reader converfant with the hiftorians of the crufades, will understand by the peuble des Suriens, the Oriental Chrif tians, Melchites, Jacobites, or Neftorians, who had all adopted the ufe of the Arabic language (vol. iv. p. 593.).

"

LVIII.

Villains

CHAP. jurifdiction: the fworn members were Syrians, in blood, language, and religion; but the office of the prefident (in Arabic, of the rais) was fometimes exercised by the viscount of the city. At and flaves. an immeafurable distance below the nobles, the burgeffes, and the ftrangers, the Affife of Jerufalem condefcends to mention the villains and flaves, the peasants of the land and the captives of war, who were almoft equally confidered as the objects of property. The relief or protection of these unhappy men was not esteemed worthy of the care of the legiflator; but he diligently provides for the recovery, though not indeed for the pu nifhment, of the fugitives. Like hounds, or hawks, who had strayed from the lawful owner, they might be loft and claimed: the flave and falcon were of the fame value; but three flaves, or twelve oxen, were accumulated to equal the price of the war-horfe; and a fum of three hundred pieces of gold was fixed, in the age of chivalry, as the equivalent of the more noble animal 43

143 See the Affifes de Jerufalem (310, 311, 312.). These laws were enacted as late as the year 1350, in the kingdom of Cyprus. In the fame century, in the reign of Edward I. I understand, from a late publication (of his Book of Account) that the price of a war-horfe was not less exorbitant in England.

CHAP. LIX.

Prefervation of the Greek Empire.-Numbers, Paf fage, and Event, of the Second and Third Crufades.-St. Bernard.—Reign of Saladin in Egypt and Syria.-His Conquest of Jerufalem.-Naval Crufades.-Richard the First of England.Pope Innocent the Third; and the Fourth and Fifth Crufades.-The Emperor Frederic the Second.-Louis the Ninth of France; and the two laft Crufades.-Expulfion of the Latins or Franks by the Mamalukes.

IN

the

LIX.

Succefs of

A. D.

10971118.

Na ftyle less grave than that of hiftory, I CHA P. fhould perhaps compare emperor Alexius' to the jackall, who is faid to follow the fteps, Alexius, and to devour the leavings, of the lion. Whatever had been his fears and toils in the paffage of the first crufade, they were amply recompenfed by the subsequent benefits which he derived from the exploits of the Franks. His dexterity and vigilance fecured their first conqueft of Nice; and from this threatening station the Turks were compelled to evacuate the neighbourhood of Conftantinople. While the crufaders, with blind valour, advanced into the midland countries of

1 Anna Comnena relates her father's conquefts in Afia Minor, Alexiad, 1. xi. p. 321–325. 1. xiv. p. 419.; his Cilician war against Tancred and Bohemond, p. 328-342.; the war of Epirus, with tedious prolixity, l. xii, xiii. p. 345-406.; the death of Bohemond, 1. xiv. p. 419.

H 3

Afia,