466 THE COURTS [CH. LVIII. lesson or example, a model of political liberty was introduced; and the laws of the French kingdom are derived from the purest source of equality and justice. Of such laws, the first and indispensable condition is the assent of those whose obedience they require, and for whose benefit they are designed. No sooner had Godfrey of Bouillon accepted the office of supreme magistrate, than he solicited the public and private advice of the Latin pilgrims, who were the best skilled in the statutes and customs of Europe. From these materials, with the counsel and approbation of the patriarchs and barons of the clergy and laity, Godfrey composed the ASSISE OF JERUSALEM*- —a precious monument of feudal jurisprudence. The new code, attested by the seals of the king, the patriarch, and the viscount of Jerusalem, was deposited in the holy sepulchre, enriched with the improvements of succeeding times, and respectfully consulted as often as any doubtful question arose in the tribunals of Palestine. With the kingdom and city, all was lost;† the fragments of the written law were preserved by jealous tradition 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; and the final revision was accomplished in tions to Rhodes and Malta. * The Assises de Jeru salem, in old law French, were printed with Beaumanoir's Coutumes de Beauvoisis (Bourges and Paris, 1690), in folio, and illustrated by Gaspard Thaumas de la Thaumassiere, with a comment and glossary. An Italian version had been published in 1535, at Venice, for the use of the kingdom of Cyprus. + A la terre perdue, tout fut perdu, is the vigorous expression of the Assise, (c. 281.). Yet Jerusalem capitulated with Saladin; the queen and the principal Christians departed in peace; and a code so precious and so portable could not provoke the avarice of the conquerors. I have sometimes suspected the existence of this original copy of the holy sepulchre, which might be invented to sanctify and authenticate the traditionary customs of the French in Palestine. A noble lawyer, Raoul de Tabarie, denied the prayer of king Amauri, (A.D. 1195-1205,) that he would commit his knowledge to writing; and frankly declared que de ce qu'il savoit ne feroit-il ja nul borjois son pareill, ne nul sage homme lettré. (c. 281.) The compiler of this work, Jean d'Ibelin, was count of Jaffa and Ascalon, lord of Baruth (Berytus) and Rames, and died A.D. 1266. (Sanut, 1. 3, p. 2, c. 5. 8.) The family of Ibelin, which descended from a younger brother of a count of Chartres in France, long flourished in Palestine and Cyprus. (See the Lignages de deça Mer, or d'Outremer, c. 6, at the end of the Assises de the year 1369, for the use of the Latin kingdom of Cyprus.* The justice and freedom of the constitution were maintained by two tribunals of unequal dignity, which were instituted by Godfrey of Bouillon after the conquest of Jerusalem. The king, in person, presided in the upper court, the court of the barons. Of those the four most conspicuous were, the prince of Galilee, the lord of Sidon and Cæsarea, and the counts of Jaffa and Tripoli, who, perhaps with the constable and marshal,† were in a special manner the compeers and judges of each other. But all the nobles who held their lands immediately of the crown, were entitled and bound to attend the king's court; and each baron exercised a similar jurisdiction in the subordinate assemblies of his own feudatories. The connection of lord and vassal was honourable and voluntary; reverence was due to the benefactor, protection to the dependant; but they mutually pledged their faith to each other; and the obligation on either side might be suspended by neglect, or Jerusalem, an original book, which records the pedigrees of the French adventurers.) [Taaffe (i. p. 170) says that Ibelin made a very imperfect version of the Assises of Jerusalem, and that the "heavy tome," which was afterwards compiled, and by which alone Gibbon could judge, is so corrupt as to afford food for blame and derision. Godfrey's original code, he adds, was from the "well-springs of freedom," the pure source of Gothic principle. But he adopts the common error of making Scandinavia the fountain-head of this stream.-ED.] * By sixteen commissioners chosen in the States of the island. The work was finished the 3d of November, 1369, sealed with four seals, and deposited in the cathedral of Nicosia. (See the preface to the Assises.) [The constitution framed by Godfrey, for his kingdom of Jerusalem, is one of the most interesting juridical monuments of the Middle ages, and is the subject of a lengthened inquiry in Wilken's 13th ch. (1. 207-424,) and in the Appendix (p. 17-40.) Of late years it has called forth considerable attention, and three editions came out almost simultaneously. One by Mons. Beugnot, under the auspices of the Académie des Inscriptions, folio, Paris, 1841; another by Victor Foucher, Rennes, 1839-41; and the third by Kausler, Stutgard, 1839. What might have resulted from the introduction of such institutions into Asia, had they been permanently established, is a curious matter of speculation. But they were beset from the first, as we have seen, by a fatal influence, which checked their growth and brought ou premature decay.-ED.] The cautious John d'Ibelin argues, rather than affirms, that Tripoli is the fourth barony, and expresses some doubt concerning the right or pretension of the constable and marshal. (c. 323.) 468 LAW OF JUDICIAL COMBATS. [CH. LVIII. dissolved by injury. The cognizance of marriages and testaments was blended with religion, and usurped by the clergy; but the civil and criminal causes of the nobles, the inheritance and tenure of their fiefs, formed the proper occupation of the supreme court. Each member was the judge and guardian both of public and private rights. It was his duty to assert with his tongue and sword the lawful claims of the lord; but if an unjust superior presumed to violate the freedom or property of a vassal, the confederate peers stood forth to maintain his quarrel by word and deed. They boldly affirmed his innocence and his wrongs; demanded the restitution of his liberty or his lands; suspended, after a fruitless demand, their own service; rescued their brother from prison; and employed every weapon in his defence, without offering direct violence to the person of their lord, which was ever sacred in their eyes.* In their pleadings, replies, and rejoinders, the advocates of the court were subtle and copious; but the use of argument and evidence was often superseded by judicial combat; and the Assise of Jerusalem admits in many cases this barbarous institution, which has been slowly abolished by the laws and manners of Europe. The trial by battle was established in all criminal cases which affected the life, or limb, or honour, of any person; and in all civil transactions, of or above the value of one mark of silver. It appears, that in criminal cases the combat was the privilege of the accuser, who, except in a charge of treason, avenged his personal injury, or the death of those persons whom he had a right to represent; but, wherever, from the nature of the charge, testimony could be obtained, it was necessary for him to produce witnesses of the fact. In civil cases, the combat was not allowed as the means of establishing the claim of the demandant; but he was obliged to produce witnesses who had, or assumed to have, knowledge of the fact. The combat was then the privilege of the defendant; because he charged the witness with an * Entre seignor et homme ne n'a que la foi; . . . mais tant que l'homme doit à son seignor reverence en toutes choses (c. 206.), tous les hommes du dit royaume sont par la dite Assise tenus les uns as et en celle maniere que le seignor mette main ou fasse mettre au corps ou fié d'aucun d'yaus sans esgard et sans connoissance de court, que tous les autres doivent venir devant le seignor, &c. (212.). autres cases. attempt by perjury to take away his right. He came therefore to be in the same situation as the appellant in criminal It was not then as a mode of proof that the combat was received, nor as making negative evidence (according to the supposition of Montesquieu*); but in every case the right to offer battle was founded on the right to pursue by arms the redress of an injury; and the judicial combat was fought on the same principle, and with the same spirit, as a private duel. Champions were only allowed to women, and to men maimed or past the age of sixty. The consequence of a defeat was death to the person accused, or to the champion or witness, as well as to the accuser himself; but in civil cases, the demandant was punished with infamy and the loss of his suit, while his witness and champion suffered 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 result of the challenge; if a faithful vassal gave the lie to his compeer, who unjustly claimed any portion of their lord's demenses; or if an unsuccessful suitor presumed to impeach the judgment and veracity of the court. He might impeach them, but the terms were severe and perilous; in the same day he successively fought all the members of the tribunal, even those who had been absent; a single 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 Assise of Jerusalem, the legal subtlety 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.† Among the causes which enfranchised the plebeians from The form of their remonstrances is conceived with the noble simplicity of freedom. * See l'Esprit des Loix, 1. 28. In the forty years since its publication, no work has been more read and criticised; and the spirit of inquiry which it has excited is not the least of our obligations to the author. For the intelligence of this obscure and obsolete jurisprudence, (c. 80-111.) I am deeply indebted to the friendship of a learned lord, who, with an accurate and discerning eye, has surveyed the philosophic history of law. By his studies, posterity might be enriched: the merit of the orator and the judge can be felt only by his contemporaries. [This compliment was, no doubt, intended for Lord Loughborough. See Gibbon's Memoirs, p. 285.-ED.] 470 VILLAINS AND SLAVES. [CH. LVIII. the yoke of feudal tyranny, the institution of cities and corporations is one of the most powerful; and if those of Palestine are coeval with the first crusade, they may be ranked with the most ancient of the Latin world. Many of the pilgrims had escaped from their lords under the banner of the cross; and it was the policy of the French princes to tempt their stay by the assurance of the rights and privileges of freemen. It is expressly declared in the Assise of Jerusalem, that after instituting, for his knights and barons, the court of peers, in which he presided himself, Godfrey of Bouillon established a second tribunal, in which his person was represented by his viscount. The jurisdiction of this inferior court extended over the burgesses of the kingdom; and it was composed of a select number of the most discreet and worthy citizens, who were sworn to judge, according to the laws, of the actions and fortunes of their equals.* In the conquest and settlement of new cities, the example of Jerusalem was imitated by the kings and their great vassals; and above thirty similar corporations were founded before the loss of the Holy Land. Another class of subjects, the Syrians,† or Oriental Christians, were oppressed 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 instituted for their use, of limited and domestic jurisdiction; the sworn members were Syrians, in blood, language, and religion; but the office of the president (in Arabic, of the rais) was sometimes exercised by the viscount of the city. At an immeasurable distance below the nobles, the burgesses, and the strangers, the Assise of Jerusalem condescends to mention the villains and slaves, the peasants of the land and the captives of war, who were almost equally considered as the objects of property. The relief or protection of these unhappy men was not esteemed worthy of the care of the legislator; but he diligently pro *Louis le Gros, who is considered as the father of this institution in France, did not begin his reign till nine years (A.D. 1108,) after Godfrey of Bouillon. (Assises, c. 2. 324.) For its origin and effects, see the judicious remarks of Dr. Robertson. (History of Charles V. vol. i. p. 30-36. 251-265, quarto edition.) + Every reader conversant with the historians of the crusades will understand by the peuple des Suriens, the Oriental Christians, Melchites, Jacobites, or |