The History of The Decline and Fall of the Roman Empire, Vol. 5

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[Footnote 125: This authentic detail is extracted from the
Assises de Jerusalem (c. 324, 326 - 331.) Sanut (l. iii. p. viii.
c. 1, p. 174) reckons only 518 knights, and 5775 followers.]

[Footnote 126: The sum total, and the division, ascertain the
service of the three great baronies at 100 knights each; and the
text of the Assises, which extends the number to 500, can only be
justified by this supposition.]

[Footnote 127: Yet on great emergencies (says Sanut) the barons
brought a voluntary aid; decentem comitivam militum juxta statum
suum.]

[Footnote 128: William of Tyre (l. xviii. c. 3, 4, 5) relates the
ignoble origin and early insolence of the Hospitallers, who soon
deserted their humble patron, St. John the Eleemosynary, for the
more august character of St. John the Baptist, (see the
ineffectual struggles of Pagi, Critica, A. D 1099, No. 14 - 18.)
They assumed the profession of arms about the year 1120; the
Hospital was mater; the Temple filia; the Teutonic order was
founded A.D. 1190, at the siege of Acre, (Mosheim Institut p.
389, 390.)]

[Footnote 129: See St. Bernard de Laude Novae Militiae Templi,
composed A.D. 1132 - 1136, in Opp. tom. i. p. ii. p. 547 - 563,
edit. Mabillon, Venet. 1750. Such an encomium, which is thrown
away on the dead Templars, would be highly valued by the
historians of Malta.]

[Footnote 130: Matthew Paris, Hist. Major, p. 544. He assigns to
the Hospitallers 19,000, to the Templars 9,000 maneria, word of
much higher import (as Ducange has rightly observed) in the
English than in the French idiom. Manor is a lordship, manoir a
dwelling.]

[Footnote 131: In the three first books of the Histoire de
Chevaliers de Malthe par l'Abbe de Vertot, the reader may amuse
himself with a fair, and sometimes flattering, picture of the
order, while it was employed for the defence of Palestine. The
subsequent books pursue their emigration to Rhodes and Malta.]

The spirit of freedom, which pervades the feudal
institutions, was felt in its strongest energy by the volunteers
of the cross, who elected for their chief the most deserving of
his peers. Amidst the slaves of Asia, unconscious of the 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
patriarch and barons, of the clergy and laity, Godfrey composed
the Assise of Jerusalem, ^132 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: ^133 the fragments of the written law were
preserved 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 revision was accomplished in the
year thirteen hundred and sixty-nine, for the use of the Latin
kingdom of Cyprus. ^136

[Footnote 132: The Assises de Jerusalem, 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 1534, at Venice, for the use of the kingdom
of Cyprus.

Note: See Wilken, vol. i. p. 17, &c., - M.]

[Footnote 133: 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.]

[Footnote 134: A noble lawyer, Raoul de Tabarie, denied the
prayer of King Amauri, (A.D. 1195 - 1205,) that he would commit
his knowledged to writing, and frankly declared, que de ce qu'il
savoit ne feroit-il ja nul borjois son pareill, ne null sage
homme lettre, (c. 281.)]

[Footnote 135: 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, l. iii. p. ii. 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 deca Mer, or d'Outremer, c. 6, at the end of the
Assises de Jerusalem, an original book, which records the
pedigrees of the French adventurers.)]

[Footnote 136: 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 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 these the four most conspicuous were the prince of Galilee,
the lord of Sidon and Caesarea, and the counts of Jaffa and
Tripoli, who, perhaps with the constable and marshal, ^137 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 on the subordinate
assemblies of his own feudatories. The connection of lord and
vassal was honorable 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 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. ^138
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.

[Footnote 137: 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.)]

[Footnote 138: Entre seignor et homme ne n'a que la foi; ....
mais tant que l'homme doit a son seignor reverence en toutes
choses, (c. 206.) Tous les hommes dudit royaume sont par ladite
Assise tenus les uns as autres .... et en celle maniere que le
seignor mette main ou face mettre au cors ou au fie d'aucun
d'yaus sans esgard et sans connoissans de court, que tous les
autres doivent venir devant le seignor, &c., (212.) The form of
their remonstrances is conceived with the noble simplicity of
freedom.]

The trial by battle was established in all criminal cases
which affected the life, or limb, or honor, 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 attempt by perjury to take away his right. He came therefore
to be in the same situation as the appellant in criminal cases.
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; ^139) 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
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 demesnes; 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 honor rather than of superstition. ^140

[Footnote 139: See l'Esprit des Loix, l. xxviii. In the forty
years since its publication, no work has been more read and
criticized; and the spirit of inquiry which it has excited is not
the least of our obligations to the author.]

[Footnote 140: 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.]

Among the causes which enfranchised the plebeians from 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. ^141 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, ^142 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 provides for the
recovery, though not indeed for the punishment, of the fugitives.
Like hounds, or hawks, who had strayed from the lawful owner,
they might be lost and claimed: the slave and falcon were of the
same value; but three slaves, or twelve oxen, were accumulated to
equal the price of the war-horse; and a sum of three hundred
pieces of gold was fixed, in the age of chivalry, as the
equivalent of the more noble animal. ^143

[Footnote 141: 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.)]

[Footnote 142: Every reader conversant with the historians of the
crusades will understand by the peuple des Suriens, the Oriental
Christians, Melchites, Jacobites, or Nestorians, who had all
adopted the use of the Arabic language, (vol. iv. p. 593.)]

[Footnote 143: See the Assises de Jerusalem, (310, 311, 312.)
These laws were enacted as late as the year 1350, in the kingdom
of Cyprus. In the same century, in the reign of Edward I., I
understand, from a late publication, (of his Book of Account,)
that the price of a war-horse was not less exorbitant in
England.]