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The Continental Monthly, Vol. 4, No. 5, November, 1863 online

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Edessa; 3, the principality of Syria or Jerusalem; and 4, the duchy of
Tripolis. These four formed the kingdom of Jerusalem, of which they were
feudal dependencies. The principality of Jerusalem was the home domain
of the king of Jerusalem, as Hugh Capet, for instance, was duke of
France and king in France.

The kings of Jerusalem, like those of France, surrounded themselves with
four crown officers, viz.: the seneschal, constable, marshal, and
chamberlain, whose authority and influence were the same as those of the
name in Europe.

Each of the above-named divisions was again subdivided into baronies and
greater fiefs, the holders of which were called 'men of the kingdom.'
The lower vassals were designated by the name of 'liegemen.' Among them
were, however, included the immediate servants of the king, ranking with
the class from which higher officials are taken in Europe.

The king executed justice in a court constituted of peers, and called
the high court,[3] and the laws which governed its decisions were called
'assizes of the high court.'[4]

Those barons who held courts and administered justice to their vassals
scattered over the land, of which there were twenty-two in the
principality of Syria, based their decisions also upon these assizes;
they did not, however, sit in their own right as patrimonial judges, but
by royal concession, and the king could at any time he chose preside
over these courts, associating with himself any number of his liegemen
to sit with him.

Besides these noble vassals, called also the 'chivalry of the
kingdom,'[5] there was a very considerable Latin population who held no
fiefs, but still were perfectly free men, and were designated as
citizens.[6] We find in our work no statement of their political
relations; we only know that they had their own law, and that in the
issue of the ordinances for the government of their towns or cities,
they had a right to participate, and were obliged, in case of need in
the land of Jerusalem, to furnish, as were also the clergy, a certain
quota of foot soldiers.

To this Latin population justice was administered by a court of sworn
burghers, presided over in Jerusalem itself by the viscount of the
kingdom, and elsewhere by the viscounts or bailiffs of the several
cities. Of these courts there were thirty-seven in the principality of
Jerusalem. This was called the lower court, or court of the burghers,
and the laws which formed its rule of judgment, 'the assizes of the
burghers' court.'

The jurisdiction of the two above-named courts did not, however, extend
over all subjects, since that of the clerical courts embraced matters
pertaining to the laity, which are now no longer regarded as
ecclesiastical: for instance, the case of husband and wife treating each
other with mutual blows; for it would seem that these connubial feuds
were not quite prevented, either by the gallantry of this time of
chivalry, or by the feeling which had animated the rushing crowds when
they left Europe for the Orient, that they were going to a land elevated
above the range of terrene sins and troubles - perhaps to that they had
heard called heaven.

In the seaports, the Italians and people of Marseilles enjoyed the right
of being tried by judges of their own, and in accordance with the usages
of their own countries; and as if to make this checkerwork quite
complete, the Syrian Christians were allowed trial before the rajis or
presidents of their several towns. In this latter respect a change was
introduced somewhat gradually, which was quite remarkable in view of the
prevalent ideas of the times. Feudalism had tended to concentrate the
power as much as possible in the same hands, without regard to the
difference of matter in question - that is, to divide labor by quantity,
and not by quality. But here we find for the first time a division of
jurisdiction according to the _matter_, and in the later period of the
kingdom, marine and commercial courts were established. The former,
called 'courts of the chain'[7] (from the chain by which the entrance to
the harbor was closed), gave judgment in questions of freight or payment
of sailors' wages, or in any questions which might arise between the
ship-owners and captains. The commercial court,[8] which, in addition to
its own special functions, took the place of the properly Syrian courts,
was constituted of four Syrian and two Frankish judges, under the
presidency of a Frank. This was an important measure, and indicated
great progress in international commercial intercourse, since in other
matters the various nationalities of the kingdom were so strictly
distinguished that the Syrian could not be witness against the Greek, or
the Frank against the Armenian, or the Jacobite against the Nestorian,
etc. In commerce and trade, the assizes held not so strictly in relation
to religion and national descent; for whether Syrian or Greek, Jew or
Samaritan, Nestorian or Saracen, they were still men, as well as the
Franks, and must pay or serve according to judgment rendered, just as in
the burghers' court, and hence it was determined that the court of
commerce should apply the assizes of the burghers' court.

The above is given as the basis upon which the legislation of the
kingdom rested, and now we may best hear the assizes themselves in
regard to the beginnings of this legislation. In the first chapter of
the assizes of the high court, as given us by John of Ibelin, we have
the following:

'When the holy city of Jerusalem was won from the enemies of the
cross, and restored to the true men of the Saviour, * * * when the
princes and barons who conquered it had chosen, as king and lord of
the kingdom of Jerusalem, Godfrey of Boulogne, * * * who was a man
of understanding, and anxious to place the said kingdom in a good
condition, and to have his people and all others who should come
and go and dwell in the kingdom, guided, kept, ruled, sustained,
held together, and judged according to justice and reason, he
chose, upon the advice of the patriarch of the holy city and church
of Jerusalem, and that of the princes, barons, and wisest men he
could find, prudent men, whose business it should be to inquire and
know from the people of various lands there present, what were the
customs of their respective countries. All that these men could
ascertain they wrote, or caused to be written, and laid before Duke
Godfrey, who assembled the patriarch and the other people
mentioned above, showed them the result, and caused the papers to
be read to them. With their counsel and acquiescence he took from
the report what seemed to him good, and made out from the same
assizes and customs, which should be held, applied, and observed in
the kingdom of Jerusalem.'

Our author further tells us that both Godfrey himself and the later
kings, in their diets of the kingdom, extended and improved these laws.
The diets were generally held at Acre, at the season of the arrival of
the pilgrims from Europe, as this gave opportunity to ascertain what was
the law of their several homes in relation to the matter in question;
and it is even said that messengers were sent over the sea expressly for
this purpose. William of Tyre, the celebrated chronicler of the time,
has preserved to us an interesting case of this special legislation. He
says that after the conquest of the holy city, and return home of most
of the pilgrims, the danger from the Saracens having become imminent,
many of the newly invested feudal tenants began to desert their fiefs,
upon which Godfrey issued the following assize:

'Whoever shall hold such deserted fief in possession for one year,
shall be considered as having gained it by prescriptive right, and
shall be defended in its possession against the previous owner who
has deserted it.'

The same William of Tyre tells us of a diet held at Neapolis in Samaria,
in the year 1120, 'at which, in order to banish from the land the
immoralities and crying abuses which had crept into it, there were
issued comprehensive regulations, embraced in twenty-five chapters; and
it seems from the form of the oath of the later kings that Amalrick I
and his son Baldwin IV had undertaken a formal revision of the
legislation.' It is therefore probable that we retain very little of the
system established _immediately_ upon the conquest. If we had no
evidence of revisions and changes, the sad and unquiet times through
which Godfrey had to pass would fully justify this conjecture.

But let us hear what tradition says in regard to the external condition
of these laws:

'These assizes (vide chap. iv) were written each by itself in large
Gothic letters. The first letter at the beginning was illuminated
with gold, and all the rubrics and titles were written separately
in red, as well all the other assizes as those of the higher and
those of the burghers' court. Each sheet had the signature and seal
of the king, the patriarch, and the viscount of Jerusalem, and
these sheets were called 'Letters of the Sepulchre,'[9] because
they were kept in a great chest in the Holy Sepulchre. Whenever a
question arose in court in regard to an assize, making it necessary
to consult these writings, the chest was opened in the presence of
nine persons. The king must either be there personally or be
represented by a crown official, and then two vassals of the king,
the patriarch of Jerusalem, or in his place the prior of the Holy
Sepulchre, two canons, the viscount of Jerusalem, and two sworn
citizens. So the assizes were made - so they were kept.'

These statements have proceeded upon the supposition that this law book
was for the whole kingdom; but history has preserved facts which look to
the conclusion that this was law only for the principality of Syria. But
when we consider that these assizes actually procured for themselves a
recognition beyond the bounds of the kingdom, and that no special law
for the other three grand divisions has ever been found, we shall be
constrained to regard this system of law as that of all the provinces.

The bloom of the Oriental kingdom of Jerusalem was but brief. On the 9th
of October, 1187, Saladin captured the holy city, and the treasures of
the Holy Sepulchre fell into infidel hands. The fate of the _Lettres du
Sepulcre_ in this catastrophe is in dispute. Most think that they were
destroyed by the enemy; some, however, and among them Stephen of
Lusignan, whose work, entitled, 'Chorography and brief General History
of the Island of Cyprus,' which was printed at Bologna in 1573, maintain
that they were saved and carried to Cyprus. It is certain that we no
longer possess the originals; but the authority of these assizes was not
extinguished by that catastrophe, but on the contrary, their sway became
wider with the extension of the Frankish rule.

In this respect the isle of Cyprus is most important. As in the year
1193 this 'sweet land and sweet island' (as the poets of the time called
it) was placed by Richard the Lion-hearted under the government of Guido
of Lusignan, the assizes of Jerusalem went into force immediately as the
law of the new kingdom. This effect was increased by the union of the
two kingdoms which took place soon after, but was unfortunately of brief
duration. Thus was preserved to this law book a flourishing period of
life long after the Christian kingdom in Asia was lost.

Then, when in the year 1204 the Latin empire was established at
Constantinople, the assizes of Jerusalem went into effect there. The
following is an account of this event:

'As there were many peoples about Constantinople which had not been
governed by the Roman law, and the situation of the conqueror
himself required new ordinances, and because indeed the empire
could not be governed otherwise than by the 'usages and assizes' as
they are in the Orient, the emperor Baldwin determined to send a
messenger to the king and patriarch of Jerusalem, praying them to
send to him a copy of their 'usages and assizes.' When these
arrived, they were read in the presence of all the barons, and it
was thereupon resolved to administer minister justice in accordance
with these, and especially those chapters adapted to times of
peace.'

Hence there are translations of the assizes to be found in modern Greek,
and the dukes of Athens, princes of Thebes, and other lords of that
region, who appear in Shakspeare's comedies, applied this system of law,
and perhaps many an obscure custom referred to in those plays might be
explained by this fact.

It was especially the customs preserved in the principality of Achaia
which the Venetian government of Negropont subjected to an examination
by twelve citizens, and which, with a few exceptions, particularly in
the parts relating to judicial combats, were sanctioned by the doge
Francesco Foscari.

But the most romantic chapter in the history of the extension of this
law, is the account of its introduction into the Frankish principality
of the Morea. This principality was wrested from the Byzantine empire,
in the year 1213, by William of Champlitte, at the head of a band of
adventurers, and passed by intrigue into the hands of the family Ville
Hardouin. An old chronicler of the times tells us that when the second
prince of this family, Godfrey II, reigned in the Morea, an imperial
squadron landed at Pontikos, carrying the beautiful Agnes, with her
suite of ladies and knights, to James, king of Aragon, to whom her
father had promised her in marriage on receiving from that king the
promise of an auxiliary corps for his army. Godfrey was a man who well
understood human life. He appeared at the port, testified his high
veneration for the princess, and invited her to rest herself from the
voyage in his land. The princess seems not to have regarded this journey
to her unknown bridegroom as very pressing; she accepted the invitation,
and on the second day Godfrey's friends suggested to him that he ought
not to let slip so fine a chance to secure a beautiful wife. His
decision was at once made. He presented himself as suitor to the
princess, and succeeded in convincing her that it would be much better
for her to marry him, whom she had seen and knew, than a man of whom she
knew nothing, who might be crooked, or lame, or otherwise unworthy of
her. She consented to be married at once. Her train of attendants
returned pleased to Constantinople, bearing the tidings to the emperor,
her father, whose rage on receiving this intelligence may be imagined.
There was, however, but one thing to be done - he must bear it with the
best grace he could. The parties met afterward at Larissa. Godfrey
resigned his crown to his father-in-law, received it back again as a
fief from him, and was required to accept the assizes of Jerusalem as
the law by which he should govern it.

This system of law differs from others in this important respect, that
the highest nobility and bravest heroes of the Christian Orient were the
most zealous and successful jurists. We cannot give them a special
notice. The most distinguished was John of Ibelin, count of Jaffa,
Ascalon, and Rama, born about the year 1200. His attempts to restore the
lost _Lettres du Sepulcre_ has succeeded so well that his work has,
until recently, been regarded as identical with those lost books, and
even _now_, when the laws of the kingdom of Jerusalem are spoken of, the
work of John of Ibelin is generally understood to be meant. It was this
very book which the barons of the kingdom of Cyprus, in 1368, when Peter
I, by his arbitrary rule, had subverted justice, set up in a solemn
assembly as the code of the kingdom. In order to make it as like as
possible to the _Lettres du Sepulcre_, it was sealed in the same manner,
placed in a closed chest, and kept in the cathedral of Nicosia, and this
chest was not allowed to be opened except in the presence of the king
and four vassals.

When in the year 1489 the republic of Venice obtained, through Catharine
Cornaro, possession of the isle of Cyprus, the republic bound itself by
a solemn act to observe these assizes. The copy which had been preserved
at Nicosia was subsequently lost by some unknown event, and when in the
mean time the French language had ceased to be the prevailing one, there
was a commission appointed in the year 1531 to make out a new text from
the best manuscripts which could be found. This revision of the assizes
of Jerusalem was translated into Italian, and was still in use in 1571,
making the period during which it was in force almost five centuries.

Having thus traced the external history of this system, we now turn to
its material contents.

No one any longer regards the forming of a system of law as an
independent, arbitrary, or accidental thing. Every such must be a
product and copy of the entire intellectual life of the age, and this
piece of legislation is indeed a true mirror of the Christian world in
Europe at the time; and the outline only rises more sharply, boldly, and
clearly to view, because there is presented to us at the same time so
rare a phenomenon in the march of civilization as the building up of a
state organization, for which there is no foundation in the land where
it is to be established.

The manner in which the spiritual elements fermented and boiled at that
time in the Occident - how the most shocking rudeness and barbarism
throve side by side with the most exalted religious enthusiasm - the
lowest forms of materialism by the side of spiritual
fanaticism - superstition, ignorance, and vile falsehood, side by side
with energy, valor, and generosity - all this is drawn with sharpest
features in the assizes.

The history shows us these men in their frantic cruelty, butchering the
inhabitants of conquered Jerusalem, men, women, and children without
distinction, delighting in their torment, and then, smeared with their
blood, moving in procession to the holy places, singing their Christian
songs of praise, all dissolved in tears of deepest emotion. They had
left Europe in swarms, many so ignorant as not to know whether the holy
land which they sought lay on this earth or in those regions which they
had heard called heaven - so frenzied in their fanaticism as to forget
that they might still have bodily wants, and hence throwing away their
effects, and yet so low in their ideas as only to enjoy physical things.
Such are very much the men for which these laws seem to have been made.
Upon one leaf we read: 'That man is without sentiments of honor, though
he be of highest rank, who, being called to stand as counsel by the
lowest vassal, before a tribunal of justice, declines to do so; for they
are all alike the true followers of Christ;' and by the side of this
that most unchristian of all legal institutions, slavery, assumes a form
so barbarous that the legislator does not blush to place slaves, though
among them were Christians, on the same level with domestic animals.

This same irreconcilable opposition which appears in moral principles,
shows itself again in the political foundation of the assizes.
Originating in the clash of arms, grown up in the contests and
necessities of war, on a soil where nothing but constant war could save
it from annihilation, the system is purely martial - made for conflict
and strife. And still it is but one side which shows this character;
for, in the midst of this precarious existence of the new kingdom, is
seen an elevation of commerce till then unknown - a pursuit of trade for
which feudal ideas had provided no place. As Schiller declared that the
Crusaders laid the foundation of civil liberty in Europe, so we may say
that in the assizes of Jerusalem the narrow views in regard to civil
life, which controlled the west of Europe in the middle ages, were
exploded. Here the idea of the modern state dawned, though of course and
singularly enough, side by side with its absolute antithesis, the feudal
state in its purest form.

In the ancient view, it was natural that any man should rule who had the
power, and incomprehensible that any one should allow himself to be
ruled who could avoid it. Any other than a forced relation to a lord was
nonsense to antiquity, and the moral duty of obedience was unknown.

The idea of voluntary obedience, however, having dawned and become
penetrated with the light of Christianity, formed the first element of
the feudal system. No prescribed series of duties within the cold
enclosure of legal forms bound mutually to each other the lord and his
vassal. They were bound by the all-embracing feeling of fidelity. Hence
the Lombard law of feuds compares the relation to that of husband and
wife.

While on the one hand, in the youth of this institution, the virtues
which spring from reciprocal fidelity and love developed themselves from
this relation - a relation inwardly and mutually binding lord and vassal,
and resulting in holding together all the members of the state - so on
the other hand, where there is no restraint to insolence and arbitrary
despotism, except that found in the mere sense of moral obligation, they
transcend all bounds, and find their natural reaction in the resistance
of the subject, destroying the very idea of a state. In the feudal
system, however, it is not the state which guarantees, secures, and
defends the rights of the individual. Whoever claims protection and
justice is referred to his immediate feudal superior, to whom alone, and
not to the state, as a whole, he owes duty. The state, as a moral
person - as a society - is entirely in the background.

It is one of the rarest phenomena which present themselves in the
Christian laws of the Orient, that in connection with this state-life
based upon pure private right, the modern notion of society should have
had its rise. One of the first appearances of change was in the criminal
law of the assizes. Not that this rose above the spirit of the times,
for it was barbarous in the extreme, impregnated throughout with the
idea of literal retaliation - for instance, whoever secretly buried a
dead body, must be buried alive - and again, it recognized scarcely any
punishment but death and the most horrid mutilations, such as cutting
off of nose, ears, tongue, hands, etc., and cannot, with all the
palliations arising from the necessities of the Crusaders, be regarded
as an improvement upon the preceding.

But among the genuine products of the middle ages, suddenly arose a
principle which has become the basis of modern criminal law, though it
won its first recognition, and that with difficulty, centuries later.

Punishment inflicted upon the guilty was at that time universally
regarded as an atonement due to the injured person, but the assizes
declare: 'Punishment is decreed, not in the interests of the injured,
but in those of the entire state.'

In carrying out this principle, the sufferer from theft, when he might
have taken the thief and voluntarily let him go, was punished by
forfeiture of body and estate to the feudal lord, and the assizes
declare that 'when no one in case of murder appears to make complaint,
the king, or the ruler of the land, or the lady of the city where the
dead was found, shall do so, for the blood of the slain cries to
heaven.'

As before intimated, there are two grand divisions of the assizes. Those
of the high court contain a complete system of feudal law, of which
indeed a fuller view could scarcely be found than the one above named by
John of Ibelin. The feudal law of the Orient was like that of France of
that day, though peculiarities are everywhere to be met with as the
result of the constant state of siege in which Jerusalem was involved;
and hence the fact that the feudal system, which had its birth in war,
and led ever thither again, appears nowhere more clearly and fully than
in these assizes.

Reference has been made to the shortness of the period allowed by the
statute limiting titles and claims. Of the same class is the rule that
when a fief falls to one, he cannot claim it unless he be present in the
land and seek the investiture in his own person. Hence is explained the
oft-repeated maxim of the feudal lawyers of Jerusalem: _A mort ne peut
aucune chose escheir_; which means that in matters of inheritance,
substitution is not valid, and each must derive his claim from the last
holder of the fief - thus restricting the succession of minors, who would
need protection.


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Online LibraryVariousThe Continental Monthly, Vol. 4, No. 5, November, 1863 → online text (page 4 of 20)