Various.

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

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In this oriental law there was a peculiarity in regard to granting leave
of absence to vassals. We have seen that the vassal was not allowed to
leave home, lest his services should be lost to the state in a time of
danger. But a journey back to Europe might be necessary, and in this
case the two interests were united by an arrangement called _le
commendement du fief_, by which the vassal gave up his fief to his lord,
who received its income and secured the absent owner against the
provisions of the law limiting the claims of absentees to one year.

Feudal duties were the same in the Orient as in the Occident, since
fidelity is always and everywhere the same thing; but the greater perils
which encompassed the Crusaders led to a more rigid exaction of the
performance of these duties.

In regard to the homage which the feudal tenant performs on entering
into this relation, the assizes say:

'If a man or woman pay homage to the chief feudal lord of the
kingdom, they shall, with their folded hands lying in his, say:
'Sire, I will be your vassal for this fief, and I promise to
protect and defend you for life and for death.' And the lord shall
answer: 'And I accept thee with God's faithfulness and my own;' and
he shall in faithfulness kiss him upon the mouth.'

A special duty in the Orient was to redeem a feudal lord from captivity
among the enemies of the cross, even by pawning or selling one's own
fief or that obtained through a wife. The chief duty, however, even in
this case, was that of military service, and in the Venetian manuscript
is to be found the rule by which this service was to be rendered.

A peculiar case deserves here to be mentioned. It might happen that a
man held tenures from two different lords. This was not in itself
inadmissible, and he had only, in accepting the latter fief, to make a
reservation of his fidelity to an earlier lord. He could then discharge
his duty to one by a substitute, and might even render service to one
against the other. It was only forbidden personally to fight a feudal
lord. John of Ibelin says:

'In such case the vassal shall appear before his lord, and shall
say to him, in the presence of his men: 'Sire, I am your man, but
with reservation of my duty to N. N. This N. N. now comes in arms
against you, and I regret that I cannot help you, because my lord
is on the other side, and I cannot bear arms against him, _where
his body is_; I must, therefore, report myself as _personally_
serving neither you nor him. I desire my people to serve you
against him who would rob you, and who now leads the contest
against you.''

Women to whom a fief or the guardianship of one should fall, could not
of course render military service; but in place of this, they were
obliged to marry - a punishment by most perhaps not deemed severe, except
for the fact that they could not freely choose their own husbands.

John of Ibelin says that 'if a fief fall to a girl of twelve years or
more (if younger, she is to be held under a guardian, according to law),
the feudal lord can summon her to take a husband.' This may be done by
the lord in person, or by his authorized attorney, who thus addresses
the lady: 'My lady, I offer you, in the name of my lord (name given),
three knights (names all given), and call upon you in his name, within
the time of (time specified), to take one of the three whoso names have
been given you.' This may not, after all, be a great hardship, for the
ladies of our time and land are not sure of three candidates to choose
from. These three must of course have been of the lady's own rank, and
have given their own consent to the presentation of their
names - otherwise it would be no offer.

'If the lady thus warned shall not, within the prescribed time,
either choose one of the three candidates, or assign for not doing
so a reason acceptable to the court,' - for instance, that she was
more than sixty years old would be a valid reason, since if she had
a husband living, he would not be required to serve after that
age, - 'she shall lose the fief for one year, after which time the
lord may challenge her again.'

On the other hand, if the lord shall omit to make this demand, the lady
can serve a warning upon him, that he must, within three times fourteen
days, present her three eligible candidates for her choice in marriage,
and if he shall fail to do so, she can then choose for herself. If the
lord had failed, however, because he could not find the men who were
willing to run the risks of this candidacy, it is difficult to perceive
what additional inducements the lady's efforts could furnish.

So much for the law of the chivalry of the kingdom, I now pass to that
of the burghers.

The assizes of the burghers' court offer neither in matter nor in form
so complete a system as that already noticed. On the contrary, it is but
a motley and confused jumble, more like a collection of decisions in
concrete cases than a proper law book. They are, however, exceedingly
rich in interesting matter.

The character of this burgher class, and indeed its very existence, is a
most remarkable phenomenon; for this respectable class, occupying a
position almost on a level with that of the nobility, was several
centuries later in making its appearance in the Occident. The burgher
who struck a nobleman lost his hand, while the nobleman who struck a
burgher lost his horse, and must pay one hundred sols. Later, however,
the burgher could commute his punishment with a fine of one thousand
sols, and must pay one hundred sols as an indemnity, thus making the two
cases nearly equal.

The term burgher has generally been understood to designate the
inhabitant of a city, whose quiet and orderly life was passed in
occupations of trade and industry; but _such_ burghers were surely not
to be found in the kingdom of Jerusalem; for the burghers sprang from
the common people, of which the accounts of the Crusades made the chief
portion of the army of the Crusaders to have consisted; and when we
remember how little respect these showed for the princes in the
army - that they once chose Godfrey Burel out of their own number as
their leader - we shall not be astonished that there arose from this
class of warriors a population who were not to be subjected to a
humiliating position in relation to the chivalry.

A free and vigorous life shows itself in the whole system of law which
governed these burghers. Here we meet, for the first time in the middle
ages, the principles of marine and commercial law, rising above the then
rather limited views of the Roman law on those subjects, which in the
German law books are not mentioned at all. We find among other things
strict personal arrest of delinquent debtors - a very ingenious provision
against fraud - and a settlement of those cases of intervention which
have so troubled our jurists, by an application of the rule, 'The hand
must defend the hand,' as follows:

'Be it known that if any one lend his horse to another, and the
latter say to him: 'To-morrow I shall bring your horse back,' and
being allowed to take the horse away, he is apprehended by another
person for debt, this creditor may take the borrowed horse for his
debt.'

The two following laws give us something of an insight into the
condition of the kingdom of the Crusaders, the one in relation to
servants, the other in relation to physicians:

'When it shall happen that a man or woman hire a man servant or a
chambermaid, reason requires that the man or woman who hires them
shall have power to dismiss them at will, because they are bound
for their wages only so long as they serve. But the servant or maid
cannot separate themselves from their master or mistress without
their consent until the termination of the engagement. But when the
servant or maid thus hired shall wish to go back over the sea,
reason requires that the man or woman grant them leave, because
they wish to cross the sea, and they shall pay them according to
the time of service. * * * When, however, servant or maid shall
depart _without_ such leave, they break faith and forfeit their
wages for the whole time of service. And if such servant be found
with any other person in the kingdom, his or her hand with which
they made promise to serve and afterward denied God and broke
faith, shall be pierced through with a red-hot iron.'

Again:

'When it shall happen that any one hire a servant or chambermaid,
become angry with him or her, and box their ears, and the latter
enter complaint to the court, reason requires that the man or woman
be _not_ subject to judicial proceeding for a simple boxing of the
servant's ears. But if the man or woman shall excessively beat the
servant or maid, or cause the same to be done, or shall inflict
upon them an open wound, and they shall enter complaint of the same
to the court, law and reason require that the servant or maid
receive justice the same as against strangers.'

In regard to physicians, the assizes provide as follows:

'If by any mishap I wound one of my slaves, or the same be wounded
by any other person, and I call a physician, who agrees with me to
heal him for a stipulated price, and then says to me on the third
day, after having well observed the wound, that he can heal it
without fail, and it come to pass, because he uses the lancet
unskilfully, or when he should not have used it at all, or because
when he should have cut the wound or swelling in the top or
lengthwise he cut it obliquely, and the patient die in consequence;
or when the slave's wound is in such place as to require warm
applications, for instance upon the brain or nerves, and the
physician always makes cold ones; or if my slave have a swelling
upon a part where emollients should be applied to mollify the sore
and cause suppuration and discharge, and the physician make always
warm and dry applications by which the sore is internally inflamed,
and he die of it; or if the physician do not attend him every day,
and he die in consequence, reason requires that he pay what the
slave was justly worth before he fell sick, or what the owner had
paid for him; for this is right and reasonable, according to the
assizes of Jerusalem. And the court shall expel that physician from
the city where he performed such malpractice. But if the physician
can show before the court that the patient drank wine or ate meat
which he had forbidden, or did anything else which he should not
have done at all, or at least not so soon as he did, reason
requires that, even though the physician could or should have
treated him differently, he should not be made to pay for him; for
it is more reasonable to suppose that death followed from the
patient's doing what was forbidden than in consequence of the
medical treatment. But if the physician make no prohibition in
regard to eating or drinking, he must still pay for him, for the
physician is justly bound, as soon as he sees a patient, to direct
what he shall eat and what he shall not eat, and if he do not do
this, and mischance occur, it should come upon him.'

'And if a physician be guilty of such malpractice in case of a
Frankish man or woman, reason requires that he should be hanged.'

We can see from this assize that a law sometimes effects the opposite of
that which was intended, and unreasonable provisions oppress the patient
instead of the physician. Amalrick I fell sick, and felt that he needed
an aperient, but the Syrian physicians refused to prescribe such. He
sent for the European physicians, and they also declined to take the
hazard of prescribing. To obtain the prescription there was no
alternative but to issue a royal rescript absolving the physicians
beforehand from the provisions of this assize. In the mean time,
however, the favorable period passed by and the king died.

In regard to marriage - the most important of social institutions - the
provisions of the canon law are mainly reproduced, with the genuine
German practice of joint possession of the property, as expressed in the
passage: _Sachés que nul home n'est si dreit heir au mort come est sa
feme._ ('No one so properly as the wife inherits the property of a
deceased husband.')

Still, however, oriental views left their traces upon this institution.
This appears in the facility with which a man could obtain a divorce
from his wife, and in the jealous strictness in regard to conjugal
infidelity. Vitry says:

'The pullans' - a name analogous to that of creole in the West
Indies, given to the descendants of the Crusaders in the
Orient - 'have gone so far in their oriental zeal, that they no
longer allow their wives to go to church, to processions, or to any
religious exercises.'

When the council of Neapolis had provided cruel and barbarous
mutilations for persons unfaithful to the marriage vow, King Amalrick
issued the assize that 'the man who should detect his wife in the
commission of such offence, might without guilt kill both parties;' but
he added the very nice distinction, that 'if he killed _one_ party and
spared the _other_, he should, as a murderer, be hanged without grace.'
Perhaps this law may have been a device to save both parties; for a man
would naturally hesitate to undertake a work, failure to _complete_
which would cost him his life.

The last means everywhere for establishing truth was the judicial
combat. There are found, by way of exception, in the assizes of the
burghers' court, cases of the judgment of God by the fire test, in which
the defendant is acquitted of the charges against him, by holding in
his hand, without injury, for a given length of time, a red-hot iron.
Torture was sometimes prescribed, and the so called abrevement (water
test) used. The assize says:

'If the accused confess the crime charged, he shall be hanged; if
he do not confess, he shall be drawn to the torture, and kept in
the water until he shall confess, and shall then be immediately
hanged. But if he continue three days without confessing or dying
under torture' - a thing not easily imagined - 'he shall be
imprisoned one year, and then set free.'

The complainant must prove a charge of murder, high treason, or
manslaughter, by single combat with the accused. Women, old men, and
non-combatants might be represented by a so-called champion.

John of Ibelin describes the combat as follows:

'The knights who engage in the combat for murder or manslaughter
must fight on foot and without helmet, with heads shorn around,
being dressed in red military coats, or shirts of red silk falling
down to the knees, the arms cut off above the elbow, red breeches
of cloth or silk, and shields higher by half a foot than their
heads, with two holes of the ordinary size, so that the antagonist
can be seen through them. Each shall have a lance and two swords,
one of the latter girded about him, the sheath drawn up to his
hips, the other fastened to the shield, so that he can have it when
needed.'

Only three days may intervene between the interchange of pledges and the
combat.

'When the combatants who shall have mutually pledged themselves to
the combat present themselves, they must appear on the appointed
day on foot, between six and nine o'clock in the morning, before
the palace of the lord, and call him, being clothed and equipped as
above, having also several shields and swords borne before them, in
order that, on entering the place of combat, they may select what
they need.

'And then the lord shall cause all the weapons to be examined by
his court, so as to know whether they are in order; and if one
lance is longer than the other, he shall shorten it, and he shall
have the two combatants well watched as they go to the place of
combat, that neither may run away; also that they receive no bodily
injury or annoyance, and be not insulted or derided; for the lord
must protect them against all this, since they are in his keeping.
When they shall have entered the place of combat, the feudal lord
shall station some of his people to watch the place, and one of
these shall say, in the presence of the others, to each of the
combatants: 'Select your weapons which ye desire in order to finish
the combat.' This they shall do, and the weapons selected shall be
kept in the place, and the rest carried away. Then shall each
combatant be made to swear that he carries about his person neither
talisman, nor charm, nor witchcraft, that he has had no such
provided for this combat, and that no other person has done this
with his knowledge, that he has neither given nor promised anything
to any one to procure the making of talisman, charm, or witchcraft,
in order to aid himself or damage his antagonist in this contest,
and that he bears about him no other weapons than those seen by the
court.

'Then shall they bring the combatants together upon the place of
combat, where there shall be a copy of the gospels. The accused
shall first swear upon his knees with his right hand upon the
gospels, and shall say: 'As I have not murdered the deceased, so
help me God and the holy gospel.' The complainant shall say that he
lies, and that he takes him up as a perjured person, and shall then
take him by the thumb, and shall swear: 'So let God and his holy
gospel help me, as the accused murdered the deceased.' And then
shall the guards station the combatants, one at each end of the
place, and the proclamation shall be made at all the four corners
of the field, that no one of whatever rank shall do or say anything
by which either party can be helped or hindered, and in case any
one shall do so, his person and goods shall fall to his feudal
lord. And if the corpse of the murdered person is present, it shall
be so placed as to be seen over the entire place of combat, and the
complainant, whether man or woman, in case of being represented by
a combatant, shall be there bound so as neither to benefit nor
injure either of the parties by word, or deed, or bearing, and
shall only pray to God, but not so as to be heard by either
combatant. * * * And the guard shall so arrange that the sun cannot
shine more in the face of one than of the other; and one of the
guards shall then say: 'Shall the command now be given? We have
made all ready.' And the lord shall answer: 'Let them come
together.' And they shall let them come together, and shall
withdraw themselves; and if one fasten upon the other, and they
wrestle and fall, the guards shall go to the place and as near to
them as they can, in order to be able to hear in case one shall cry
for grace; and if one cry and they hear, they shall say to the
other, 'Cease; it is enough.' And then shall the lord cause the
conquered party to be taken to the gallows and hanged by the neck'
(a grace scarcely worth crying for), 'or his corpse, in case he had
been killed without crying for grace. The weapons of the vanquished
man and those which the victor threw away belong to the lord.
Should it appear in the course of the contest that one of the
parties had other weapons than those which had been seen by the
court, the guards shall seize him, and the lord shall pronounce
sentence upon him as a murderer.

'And if any one, who is no knight, is accused of murder, it shall
be done as above, only that the combatants shall be armed otherwise
than as knights.'

If the vanquished man did not fight for himself, but as a substitute,
his lot was subject to some variation; if he fought for a woman, then
not _he_, but the _woman_, was to be hanged; if he fought for a witness
who had been accused of perjury in a civil suit, then the champion was
to be hanged and the perjured man merely lost his right of testifying on
oath; in case of representing any of the principal parties in a criminal
process, a vanquished champion and the person whom he represented were
both to be hanged; and in case of representing a witness in a criminal
case, the _vanquished champion the witness, and the complainant were all
hanged_.

It is easily perceived that in such single combat the judgment of God
was not upon the main question, but upon the question which of the two
had committed perjury. So in case of the application of the single
combat in civil suits, which, however, could take place only when the
amount claimed was at least one mark.

Whoever prosecuted a claim must establish it by at least two witnesses;
and if he brought these, the defendant could not establish the contrary
by better witnesses or documents, but must either submit, or convict the
witnesses of perjury. This was done as follows: When the first witness,
kneeling, had taken the oath, the defendant stepped forward, took hold
of the witness' thumb, and raised him up, declaring him a false and
perjured witness, and that he was ready to maintain this with his life.
Then followed the judicial combat as above.

The procedure was similar when any one would contest a judgment already
rendered. The court itself must be solemnly accused of falsehood; the
complainant must fight with _all_ the associate judges of the court, or
have his tongue cut off as a calumniator. Whoever in such case did not
vanquish _all_ the judges of the court, and that, too, _on the same
day_, must be hanged.

The obvious remark in relation to all the processes above described is,
that unless hanging was much more honorable then than now, however
numerous the capital crimes committed, probably few complaints were
entered, very few witnesses accused of perjury, very few combatants
cried for grace, even in the most desperate struggle, very few judicial
decisions were contested, and very few injured husbands used their right
of punishing the unfaithful wife and her accomplice, since _all parties,
innocent and guilty, stood about equal chances of being hanged at the
end_.

The Crusades furnish the subject of frequent popular disquisitions and,
sketches, but the laws by which the Crusaders lived in their promised
land have rarely, if ever, been popularly sketched in this country. This
brief notice may do something toward supplying this desideratum, and at
the same time toward reconciling the most poetic reader - the greatest
admirer of the institutions of chivalry - to having been born in this
prosaic age, nearly a thousand years later. It may make such persons
feel that even 'the glorious uncertainty of the law' has some advantages
over the judicial processes of the kingdom of Jerusalem.

But I must not close my article, as some in similar cases have done,
without informing the reader to whom he is indebted mainly for it. I
have myself often entered that hall in the Royal Library at Munich, and
looked with interest upon that manuscript of the Assizes of Jerusalem,
but I have never studied it. In the winter of 1858, however, I heard a
course of popular lectures on various subjects, by a number of
distinguished men, before an audience of invited ladies and gentlemen,
at the lecture room of Baron von Liebig's chemical laboratory. One of
these was delivered by Baron de Voelderndorff on the Assizes of
Jerusalem. On opening my box of books, after my return from Europe a few
weeks since, I came across a volume containing the course of lectures to
which I have referred. As my eye rested upon this one, I remembered the
interest with which I had listened to its original delivery, and
resolved that the public should have a chance to feel something of the
same. This article is the fruit of that resolution, and though not
strictly a translation, may still be regarded as little more or less
than such, and the credit given wherever the reader shall deem it due.

FOOTNOTES:

[1] Jurors, larceny, theft, murder.

[2] Francis de Pitaval, born at Lyons, in 1673, gave this word to the
judicial literature of Europe, by a work entitled 'Causes célébres et
intêressantes.'

[3] La haute cour.


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