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Chapter LVIII: The First Crusade.—Part V.
Jerusalem has derived some reputation from the number and importance of her memorable sieges. It was not till after a long and obstinate contest that Babylon and Rome could prevail against the obstinacy of the people, the craggy ground that might supersede the necessity of fortifications, and the walls and towers that would have fortified the most accessible plain.72387238 See the masterly description of Tacitus, (Hist. v. 11, 12, 13,) who supposes that the Jewish lawgivers had provided for a perpetual state of hostility against the rest of mankind. * Note: This is an exaggerated inference from the words of Tacitus, who speaks of the founders of the city, not the lawgivers. Praeviderant conditores, ex diversitate morum, crebra bella; inde cuncta quamvis adversus loagum obsidium.—M. These obstacles were diminished in the age of the crusades. The bulwarks had been completely destroyed and imperfectly restored: the Jews, their nation, and worship, were forever banished; but nature is less changeable than man, and the site of Jerusalem, though somewhat softened and somewhat removed, was still strong against the assaults of an enemy. By the experience of a recent siege, and a three years' possession, the Saracens of Egypt had been taught to discern, and in some degree to remedy, the defects of a place, which religion as well as honor forbade them to resign. Aladin, or Iftikhar, the caliph's lieutenant, was intrusted with the defence: his policy strove to restrain the native Christians by the dread of their own ruin and that of the holy sepulchre; to animate the Moslems by the assurance of temporal and eternal rewards. His garrison is said to have consisted of forty thousand Turks and Arabians; and if he could muster twenty thousand of the inhabitants, it must be confessed that the besieged were more numerous than the besieging army.72397239 The lively scepticism of Voltaire is balanced with sense and erudition by the French author of the Esprit des Croisades, (tom. iv. p. 386-388,) who observes, that, according to the Arabians, the inhabitants of Jerusalem must have exceeded 200,000; that in the siege of Titus, Josephus collects 1,300,000 Jews; that they are stated by Tacitus himself at 600,000; and that the largest defalcation, that his accepimus can justify, will still leave them more numerous than the Roman army. Had the diminished strength and numbers of the Latins allowed them to grasp the whole circumference of four thousand yards, (about two English miles and a half,72407240 Maundrell, who diligently perambulated the walls, found a circuit of 4630 paces, or 4167 English yards, (p. 109, 110: ) from an authentic plan, D'Anville concludes a measure nearly similar, of 1960 French toises, (p. 23-29,) in his scarce and valuable tract. For the topography of Jerusalem, see Reland, (Palestina, tom. ii. p. 832-860.) to what useful purpose should they have descended into the valley of Ben Hinnom and torrent of Cedron,72417241 Jerusalem was possessed only of the torrent of Kedron, dry in summer, and of the little spring or brook of Siloe, (Reland, tom. i. p. 294, 300.) Both strangers and natives complain of the want of water, which, in time of war, was studiously aggravated. Within the city, Tacitus mentions a perennial fountain, an aqueduct and cisterns for rain water. The aqueduct was conveyed from the rivulet Tekos or Etham, which is likewise mentioned by Bohadin, (in Vit. Saludio p. 238.) or approach the precipices of the south and east, from whence they had nothing either to hope or fear? Their siege was more reasonably directed against the northern and western sides of the city. Godfrey of Bouillon erected his standard on the first swell of Mount Calvary: to the left, as far as St. Stephen's gate, the line of attack was continued by Tancred and the two Roberts; and Count Raymond established his quarters from the citadel to the foot of Mount Sion, which was no longer included within the precincts of the city. On the fifth day, the crusaders made a general assault, in the fanatic hope of battering down the walls without engines, and of scaling them without ladders. By the dint of brutal force, they burst the first barrier; but they were driven back with shame and slaughter to the camp: the influence of vision and prophecy was deadened by the too frequent abuse of those pious stratagems; and time and labor were found to be the only means of victory. The time of the siege was indeed fulfilled in forty days, but they were forty days of calamity and anguish. A repetition of the old complaint of famine may be imputed in some degree to the voracious or disorderly appetite of the Franks; but the stony soil of Jerusalem is almost destitute of water; the scanty springs and hasty torrents were dry in the summer season; nor was the thirst of the besiegers relieved, as in the city, by the artificial supply of cisterns and aqueducts. The circumjacent country is equally destitute of trees for the uses of shade or building, but some large beams were discovered in a cave by the crusaders: a wood near Sichem, the enchanted grove of Tasso,72427242 Gierusalomme Liberata, canto xiii. It is pleasant enough to observe how Tasso has copied and embellished the minutest details of the siege. was cut down: the necessary timber was transported to the camp by the vigor and dexterity of Tancred; and the engines were framed by some Genoese artists, who had fortunately landed in the harbor of Jaffa. Two movable turrets were constructed at the expense, and in the stations, of the duke of Lorraine and the count of Tholouse, and rolled forwards with devout labor, not to the most accessible, but to the most neglected, parts of the fortification. Raymond's Tower was reduced to ashes by the fire of the besieged, but his colleague was more vigilant and successful;72437243 This does not appear by Wilken's account, (p. 294.) They fought in vair the whole of the Thursday.—M. the enemies were driven by his archers from the rampart; the draw-bridge was let down; and on a Friday, at three in the afternoon, the day and hour of the passion, Godfrey of Bouillon stood victorious on the walls of Jerusalem. His example was followed on every side by the emulation of valor; and about four hundred and sixty years after the conquest of Omar, the holy city was rescued from the Mahometan yoke. In the pillage of public and private wealth, the adventurers had agreed to respect the exclusive property of the first occupant; and the spoils of the great mosque, seventy lamps and massy vases of gold and silver, rewarded the diligence, and displayed the generosity, of Tancred. A bloody sacrifice was offered by his mistaken votaries to the God of the Christians: resistance might provoke but neither age nor sex could mollify, their implacable rage: they indulged themselves three days in a promiscuous massacre;72447244 Besides the Latins, who are not ashamed of the massacre, see Elmacin, (Hist. Saracen. p. 363,) Abulpharagius, (Dynast. p. 243,) and M. De Guignes, tom. ii. p. ii. p. 99, from Aboulmahasen. and the infection of the dead bodies produced an epidemical disease. After seventy thousand Moslems had been put to the sword, and the harmless Jews had been burnt in their synagogue, they could still reserve a multitude of captives, whom interest or lassitude persuaded them to spare. Of these savage heroes of the cross, Tancred alone betrayed some sentiments of compassion; yet we may praise the more selfish lenity of Raymond, who granted a capitulation and safe-conduct to the garrison of the citadel.72457245 The old tower Psephina, in the middle ages Neblosa, was named Castellum Pisanum, from the patriarch Daimbert. It is still the citadel, the residence of the Turkish aga, and commands a prospect of the Dead Sea, Judea, and Arabia, (D'Anville, p. 19-23.) It was likewise called the Tower of David. The holy sepulchre was now free; and the bloody victors prepared to accomplish their vow. Bareheaded and barefoot, with contrite hearts, and in an humble posture, they ascended the hill of Calvary, amidst the loud anthems of the clergy; kissed the stone which had covered the Savior of the world; and bedewed with tears of joy and penitence the monument of their redemption. This union of the fiercest and most tender passions has been variously considered by two philosophers; by the one,72467246 Hume, in his History of England, vol. i. p. 311, 312, octavo edition. as easy and natural; by the other,72477247 Voltaire, in his Essai sur l'Histoire Generale, tom ii. c. 54, p 345, 346 as absurd and incredible. Perhaps it is too rigorously applied to the same persons and the same hour; the example of the virtuous Godfrey awakened the piety of his companions; while they cleansed their bodies, they purified their minds; nor shall I believe that the most ardent in slaughter and rapine were the foremost in the procession to the holy sepulchre.
Eight days after this memorable event, which Pope Urban did not live to hear, the Latin chiefs proceeded to the election of a king, to guard and govern their conquests in Palestine. Hugh the Great, and Stephen of Chartres, had retired with some loss of reputation, which they strove to regain by a second crusade and an honorable death. Baldwin was established at Edessa, and Bohemond at Antioch; and two Roberts, the duke of Normandy72487248 The English ascribe to Robert of Normandy, and the Provincials to Raymond of Tholouse, the glory of refusing the crown; but the honest voice of tradition has preserved the memory of the ambition and revenge (Villehardouin, No. 136) of the count of St. Giles. He died at the siege of Tripoli, which was possessed by his descendants. and the count of Flanders, preferred their fair inheritance in the West to a doubtful competition or a barren sceptre. The jealousy and ambition of Raymond were condemned by his own followers, and the free, the just, the unanimous voice of the army proclaimed Godfrey of Bouillon the first and most worthy of the champions of Christendom. His magnanimity accepted a trust as full of danger as of glory; but in a city where his Savior had been crowned with thorns, the devout pilgrim rejected the name and ensigns of royalty; and the founder of the kingdom of Jerusalem contented himself with the modest title of Defender and Baron of the Holy Sepulchre. His government of a single year,72497249 See the election, the battle of Ascalon, &c., in William of Tyre l. ix. c. 1-12, and in the conclusion of the Latin historians of the first crusade. too short for the public happiness, was interrupted in the first fortnight by a summons to the field, by the approach of the vizier or sultan of Egypt, who had been too slow to prevent, but who was impatient to avenge, the loss of Jerusalem. His total overthrow in the battle of Ascalon sealed the establishment of the Latins in Syria, and signalized the valor of the French princes who in this action bade a long farewell to the holy wars.
Some glory might be derived from the prodigious inequality of numbers, though I shall not count the myriads of horse and foot72507250 20,000 Franks, 300,000 Mussulmen, according to Wilken, (vol. ii. p. 9)—M. on the side of the Fatimites; but, except three thousand Ethiopians or Blacks, who were armed with flails or scourges of iron, the Barbarians of the South fled on the first onset, and afforded a pleasing comparison between the active valor of the Turks and the sloth and effeminacy of the natives of Egypt. After suspending before the holy sepulchre the sword and standard of the sultan, the new king (he deserves the title) embraced his departing companions, and could retain only with the gallant Tancred three hundred knights, and two thousand foot-soldiers for the defence of Palestine. His sovereignty was soon attacked by a new enemy, the only one against whom Godfrey was a coward. Adhemar, bishop of Puy, who excelled both in council and action, had been swept away in the last plague at Antioch: the remaining ecclesiastics preserved only the pride and avarice of their character; and their seditious clamors had required that the choice of a bishop should precede that of a king. The revenue and jurisdiction of the lawful patriarch were usurped by the Latin clergy: the exclusion of the Greeks and Syrians was justified by the reproach of heresy or schism;72517251 Renaudot, Hist. Patriarch. Alex. p. 479. and, under the iron yoke of their deliverers, the Oriental Christians regretted the tolerating government of the Arabian caliphs. Daimbert, archbishop of Pisa, had long been trained in the secret policy of Rome: he brought a fleet at his countrymen to the succor of the Holy Land, and was installed, without a competitor, the spiritual and temporal head of the church. 72527252 Arnulf was first chosen, but illegitimately, and degraded. He was ever after the secret enemy of Daimbert or Dagobert. Wilken, vol. i. p. 306, vol. ii. p. 52.—M The new patriarch72537253 See the claims of the patriarch Daimbert, in William of Tyre (l. ix. c. 15-18, x. 4, 7, 9,) who asserts with marvellous candor the independence of the conquerors and kings of Jerusalem. immediately grasped the sceptre which had been acquired by the toil and blood of the victorious pilgrims; and both Godfrey and Bohemond submitted to receive at his hands the investiture of their feudal possessions. Nor was this sufficient; Daimbert claimed the immediate property of Jerusalem and Jaffa; instead of a firm and generous refusal, the hero negotiated with the priest; a quarter of either city was ceded to the church; and the modest bishop was satisfied with an eventual reversion of the rest, on the death of Godfrey without children, or on the future acquisition of a new seat at Cairo or Damascus.
Without this indulgence, the conqueror would have almost been stripped of his infant kingdom, which consisted only of Jerusalem and Jaffa, with about twenty villages and towns of the adjacent country.72547254 Willerm. Tyr. l. x. 19. The Historia Hierosolimitana of Jacobus a Vitriaco (l. i. c. 21-50) and the Secreta Fidelium Crucis of Marinus Sanutus (l. iii. p. 1) describe the state and conquests of the Latin kingdom of Jerusalem. Within this narrow verge, the Mahometans were still lodged in some impregnable castles: and the husbandman, the trader, and the pilgrim, were exposed to daily and domestic hostility. By the arms of Godfrey himself, and of the two Baldwins, his brother and cousin, who succeeded to the throne, the Latins breathed with more ease and safety; and at length they equalled, in the extent of their dominions, though not in the millions of their subjects, the ancient princes of Judah and Israel.72557255 An actual muster, not including the tribes of Levi and Benjamin, gave David an army of 1,300,000 or 1,574,000 fighting men; which, with the addition of women, children, and slaves, may imply a population of thirteen millions, in a country sixty leagues in length, and thirty broad. The honest and rational Le Clerc (Comment on 2d Samuel xxiv. and 1st Chronicles, xxi.) aestuat angusto in limite, and mutters his suspicion of a false transcript; a dangerous suspicion! * Note: David determined to take a census of his vast dominions, which extended from Lebanon to the frontiers of Egypt, from the Euphrates to the Mediterranean. The numbers (in 2 Sam. xxiv. 9, and 1 Chron. xxi. 5) differ; but the lowest gives 800,000 men fit to bear arms in Israel, 500,000 in Judah. Hist. of Jews, vol. i. p. 248. Gibbon has taken the highest census in his estimate of the population, and confined the dominions of David to Jordandic Palestine.—M. After the reduction of the maritime cities of Laodicea, Tripoli, Tyre, and Ascalon,72567256 These sieges are related, each in its proper place, in the great history of William of Tyre, from the ixth to the xviiith book, and more briefly told by Bernardus Thesaurarius, (de Acquisitione Terrae Sanctae, c. 89-98, p. 732-740.) Some domestic facts are celebrated in the Chronicles of Pisa, Genoa, and Venice, in the vith, ixth, and xiith tomes of Muratori. which were powerfully assisted by the fleets of Venice, Genoa, and Pisa, and even of Flanders and Norway,72577257 Quidam populus de insulis occidentis egressus, et maxime de ea parte quae Norvegia dicitur. William of Tyre (l. xi. c. 14, p. 804) marks their course per Britannicum Mare et Calpen to the siege of Sidon. the range of sea-coast from Scanderoon to the borders of Egypt was possessed by the Christian pilgrims. If the prince of Antioch disclaimed his supremacy, the counts of Edessa and Tripoli owned themselves the vassals of the king of Jerusalem: the Latins reigned beyond the Euphrates; and the four cities of Hems, Hamah, Damascus, and Aleppo, were the only relics of the Mahometan conquests in Syria.72587258 Benelathir, apud De Guignes, Hist. des Huns, tom. ii. part ii. p. 150, 151, A.D. 1127. He must speak of the inland country. The laws and language, the manners and titles, of the French nation and Latin church, were introduced into these transmarine colonies. According to the feudal jurisprudence, the principal states and subordinate baronies descended in the line of male and female succession:72597259 Sanut very sensibly descants on the mischiefs of female succession, in a land hostibus circumdata, ubi cuncta virilia et virtuosa esse deberent. Yet, at the summons, and with the approbation, of her feudal lord, a noble damsel was obliged to choose a husband and champion, (Assises de Jerusalem, c. 242, &c.) See in M. De Guignes (tom. i. p. 441-471) the accurate and useful tables of these dynasties, which are chiefly drawn from the Lignages d'Outremer. but the children of the first conquerors, 72607260 They were called by derision Poullains, Pallani, and their name is never pronounced without contempt, (Ducange, Gloss. Latin. tom. v. p. 535; and Observations sur Joinville, p. 84, 85; Jacob. a Vitriaco Hist. Hierosol. i. c. 67, 72; and Sanut, l. iii. p. viii. c. 2, p. 182.) Illustrium virorum, qui ad Terrae Sanctae.... liberationem in ipsa manserunt, degeneres filii.... in deliciis enutriti, molles et effoe minati, &c. a motley and degenerate race, were dissolved by the luxury of the climate; the arrival of new crusaders from Europe was a doubtful hope and a casual event. The service of the feudal tenures72617261 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. was performed by six hundred and sixty-six knights, who might expect the aid of two hundred more under the banner of the count of Tripoli; and each knight was attended to the field by four squires or archers on horseback.72627262 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. Five thousand and seventy sergeants, most probably foot-soldiers, were supplied by the churches and cities; and the whole legal militia of the kingdom could not exceed eleven thousand men, a slender defence against the surrounding myriads of Saracens and Turks. 72637263 Yet on great emergencies (says Sanut) the barons brought a voluntary aid; decentem comitivam militum juxta statum suum. But the firmest bulwark of Jerusalem was founded on the knights of the Hospital of St. John,72647264 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.) and of the temple of Solomon;72657265 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. on the strange association of a monastic and military life, which fanaticism might suggest, but which policy must approve. The flower of the nobility of Europe aspired to wear the cross, and to profess the vows, of these respectable orders; their spirit and discipline were immortal; and the speedy donation of twenty-eight thousand farms, or manors,72667266 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. enabled them to support a regular force of cavalry and infantry for the defence of Palestine. The austerity of the convent soon evaporated in the exercise of arms; the world was scandalized by the pride, avarice, and corruption of these Christian soldiers; their claims of immunity and jurisdiction disturbed the harmony of the church and state; and the public peace was endangered by their jealous emulation. But in their most dissolute period, the knights of their hospital and temple maintained their fearless and fanatic character: they neglected to live, but they were prepared to die, in the service of Christ; and the spirit of chivalry, the parent and offspring of the crusades, has been transplanted by this institution from the holy sepulchre to the Isle of Malta.72677267 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,72687268 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. 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:72697269 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. the fragments of the written law were preserved by jealous tradition72707270 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.) 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;72717271 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.) and the final revision was accomplished in the year thirteen hundred and sixty-nine, for the use of the Latin kingdom of Cyprus.72727272 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,72737273 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.) 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.72747274 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. 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 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;72757275 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. 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.72767276 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.72777277 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.) 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,72787278 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.) 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.72797279 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.
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