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Law of judicial combats

It was

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 attempt by perjury to take away his right. He came, therefore, to be in the same situation as the appellant in criminal cases. not, then, as a mode of proof that the combat was received, nor as making negative evidence (according to the supposition of Montesquieu); 147 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 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

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147 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.

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

a of honour rather than of superstition.148

Among the causes which enfranchised the plebeians from the Court of 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.149 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, 150 or Oriental Syrians 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

purgesses

148 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 aocurate 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. The reference is to Lord Loughborough.]

149 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).

150 Every reader conversant with the historians of the crusades, will understand, by the people des Suriens, the Oriental Christians, Melchites, Jacobites, or Nesto. risas, who had all adopted the use of the Arabic language (vol. v. p. 151).

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. 151

Villains and slaves

151 See the Assises de Jérusalem (310-312). These laws were enacted as late as the year 1358, 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.

CHAPTER LIX

Preservation of the Greek Empire-Numbers, Passage, and

Event of the Second and Third CrusadesSt. Bernard

-Reign of Saladin in Egypt and SyriaHis Conquest of Jerusalem-Naval Crusades-Richard the First of Éngland-Pope Innocent the Third ; and the Fourth and Fifth CrusadesThe Emperor Frederic the SecondLouis the Ninth of France; and the two last CrusadesExpulsion of the Latins or Franks by the Mamelukes

Alexins.

I

1118

N a style less grave than that of history, I should perhaps Success of

compare the Emperor Alexius' to the jackal, who is said A.D. 1097

to follow the steps, and to devour the leavings, of the lion. Whatever had been his fears and toils in the passage of the first crusade, they were amply recompensed by the subsequent benefits which he derived from the exploits of the Franks. His dexterity and vigilance secured their first conquest of Nice; and from this threatening station the Turks were compelled to evacuate the neighbourhood of Constantinople. While the crusaders, with blind valour, advanced into the midland countries of Asia, the crafty Greek improved the favourable occasion when the emirs of the sea-coast were recalled to the standard of the Sultan. The Turks were driven from the isles of Rhodes and Chios: the cities of Ephesus and Smyrna, of Sardes, Philadelphia, and Laodicea, were restored to the empire, which Alexius enlarged from the Hellespont to the banks of the Mæander and the rocky shores of Pamphylia. The churches resumed their splendour; the towns were rebuilt and fortified;

Anna Comnena relates her father's conquests in Asia Minor, Alexiad, l. xi. p. 321-325 (c. 5,6), 1. xiv. p. 419 (c. 1]; his Cilician war against Tancred and Bohemond, p. 328-342 (c. 7-12); the war of Epirus, with tedious prolixity, l. xii. xiii. [c. 1-12), p. 345-406; the death of Bohemond, 1. xiv. p. 419 [c. 1). [The best complete history of the events described in this Chapter, from A.D. 11 to 1291, is the work of Röhricht, Die Geschichte des Königreichs Jerusalem, 1898. See also W. B. Stevenson, the Crusaders in the East, 1907.]

a

and the desert country was peopled with colonies of Christians, who were gently removed from the more distant and dangerous frontier. In these paternal cares, we may forgive Alexius, if he forgot the deliverance of the holy sepulchre ; but, by the Latins, he was stigmatized with the foul reproach of treason and desertion. They had sworn fidelity and obedience to his throne ; but he had promised to assist their enterprise in person, or, at least, with his troops and treasures; his base retreat dissolved their obligations; and the sword, which had been the instrument of their victory, was the pledge and title of their just independence. It does not appear that the emperor attempted to revive his obsolete claims over the kingdom of Jerusalem ;? but the borders of Cilicia and Syria were more recent in his possession, and more accessible to his arms. The great army of the crusaders was annihilated or dispersed ; the principality of Antioch was left without a head, by the surprise and captivity of Bohemond: his ransom had oppressed him with a heavy debt; and his Norman followers were insufficient to repel the hostilities of the Greeks and Turks. In this distress, Bohemond embraced a magnanimous resolution, of leaving the defence of Antioch to his kinsman, the faithful Tancred, of arming the West against the Byzantine empire, and of executing the design which he inherited from the lessons and example of his father Guiscard. His embarkation was clandestine ; and, if we may credit a tale of the Princess Anne, he passed the hostile sea closely secreted in a coffin.3 But his reception in France was dignified by the public applause and his marriage with the king's daughter; his return was glorious, since the bravest spirits of the age enlisted under his veteran command ; and he repassed the Adriatic at the head of five thousand horse and forty thousand foot, assembled from the most remote climates of Europe. The strength of Durazzo and prudence of Alexius,

? The kings of Jerusalem submitted, however, to a nominal dependence; and in the dates of their inscriptions (one is still legible in the church of Bethlem) they respectfully placed before their own the name of the reigning emperor (Ducange, Dissertations sur Joinville, xxvii. p. 319).

3 Anna Comnena adds that, to complete the imitation, he was shut up with s dead cock; and condescends to wonder how the barbarian could endure the confinement and putrefaction. This absurd tale is unknown to the Latins.

*'AT) polans [Anna, xii. o. 9, op. ii. c. 9), in the Byzantine Geography, must mean England; yet we are more credibly informed that our Henry I. would not suffer him to levy any troops in his kingdom (Ducange, Not. ad Alexiad. p. 41).

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