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CRUSADES

533

their consent was necessary to legislation, and grants of fiefs could not be made without their permission. Nor was the crown only limited in this way. The duties of the king towards his tenants are prominent in the assises. The king’s oath to his men binds him to respect and maintain their rights, which are as prominent as are his duties; and if the men feel that the royal oath has not been kept, they may lawfully refuse military service (gager le roi), and may even rise in authorized and legal rebellion. The system of military service and the organization of justice corresponded to the part which the monarchy was thus constrained to play. The vassal was bound to pay military service, not, as in western Europe, for a limited period of forty days, but for the whole year—the Holy Land being, as it were, in a perpetual state of siege. On the other hand, the vassal was not bound to render service, unless he were paid for his service; and it was only famine, or Saracen devastation, which freed the king from the obligation of paying his men. The king was also bound to insure the horses of his men by a system called the restor: if a vassal lost his horse otherwise than by his own fault, it must be replaced by the treasury (which was termed, as it also was in Norman Sicily, the secretum).^[1] But the king had another force in addition to the feudal levy—a paid force of soudoyers,^[2] holding fiefs, not of land, but of pay (fiefs de soudée). Along with this paid cavalry went another branch of the army, the Turcopuli, a body of light cavalry, recruited from the Syrians and Mahommedans, and using the tactics of the Arabs; while an infantry was found among the Armenians, the best soldiers of the East, and the Maronites, who furnished the kingdom with archers. To all these various forces must be added the knights and native levies of the great orders, whose masters were practically independent sovereigns like the princes of Antioch and Tripoli;^[3] and with these the total levy of the kingdom may be reckoned at some 25,000 men. But the strength of the kingdom lay less perhaps in the army than in the magnificent fortresses which the nobility, and especially the two orders, had built; and the most visible relic of the crusades to-day is the towering ruins of a fortress like Krak (Kerak) des Chevaliers, the fortress of the Knights of St John in the principality of Tripoli. These fortresses, garrisoned not by the king, as in Norman England, but by their possessors, would only strengthen the power of the feudatories, and help to dissipate the kingdom into a number of local units.

In the organization of its system of justice the kingdom showed its most characteristic features. Two great central courts sat in Jerusalem to do justice—the high court of the nobles, and the court of burgesses for the rest of the Franks. (1) The high court was the supreme source of justice for the military class; and in its composition and procedure the same limitation of the crown, which appears in regard to military service, is again evident. The high court is not a curia regis, but a curia baronum, in which the theory of judicium parium is fully realized. If the king presides in the court, the motive of its action is none the less the preservation of the rights of the nobles, and not, as in England, the extension of the rights of the crown. It is a court of the king’s peers: it tries cases of dispute between the king and his peers—with regard, for instance, to military service—and it settles the descent of the title of king. (2) The court of burgesses was almost equally sovereign within its sphere. While the body of the noblesse formed the high court, the court of the burgesses was composed of twelve legists (probably named by the king) under the presidency of the vicomte—a knight also named by the king, who was a great financial as well as a judicial officer. The province of the court included all acts and contracts between burgesses, and extended to criminal cases in which burgesses were involved. Like the high court, the court of burgesses had also its assizes^[4]—a body of unwritten legal

↑ There are certain connexions and analogies between the kingdom of Sicily and that of Jerusalem during the twelfth century. In either case there is an importation of Western feudalism into a country originally possessed of Byzantine institutions, but affected by an Arabic occupation. The subject deserves investigation.
↑ The holders of fiefs (sodeers) both held fiefs of land and received pay; the paid force of soudoyers only received pay. An instance of the latter is furnished by John of Margat, a vassal of the seignory of Arsuf. He has 200 bezants, along with a quantity of wheat, barley, lentils and oil; and in return he must march with four horses (Rey, Les Colonies franques en Syrie, p. 24).
↑ For the history of the orders see the articles on the Templars; St John of Jerusalem, Knights of; Knights, and the Teutonic Order. The Templars were founded about the year 1118 by a Burgundian knight, Hugh de Paganis; the Hospitallers sprang from a foundation in Jerusalem erected by merchants of Amalfi before the First Crusade, and were reorganized under Gerard le Puy, master until 1120. The Teutonic knights date from the Third Crusade.
↑ As was noticed above, there were apparently separate assizes for the three principalities, in addition to the assizes of the kingdom. The assizes of Antioch have been discovered and published. The assizes of the kingdom itself are twofold—the assizes of the high court and the assizes of the court of burgesses. (1) The assizes of the high court are preserved for us in works by legists—John of Ibelin, Philip of Novara and Geoffrey of Tort—composed in the 13th century. We possess, in other words, law-books (like Bracton’s treatise De legibus), but not laws—and law-books made after the loss of the kingdom to which the laws belonged. There are two vexed questions with regard to these law-books. (a) The first concerns the origin and character of the laws which the law-books profess to expound. According to the story of the legists who wrote these books—e.g. John of Ibelin—the laws of the kingdom were laid down by Godfrey, who is thus regarded as the great νομοθέτης of the kingdom. These laws (progressively modified, it is admitted) were kept in Jerusalem, under the name of “Letters of the Sepulchre,” until 1187. In that year they were lost; and the legists tell us that they are attempting to reconstruct par oir dire the gist of the lost archetype. The story of the legists is now generally rejected. Godfrey never legislated: the customs of the kingdom gradually grew, and were gradually defined, especially under kings like Baldwin III. and Amalric I. If there was thus only a customary and unwritten law (and William of Tyre definitely speaks of a jus consuetudinarium under Baldwin III., quo regnum regebatur), then the “Letters of the Sepulchre” are a myth—or rather, if they ever existed, they existed not as a code of written law, but, perhaps, as a register of fiefs, like the Sicilian Defetarii. Thus the story of the legists shrinks down to the regular myth of the primitive legislator, used to give an air of respectability to law-books, which really record an unwritten custom. The fact is that until the 13th century the Franks lived consuetudinibus antiquis et jure non scripto. They preferred an unwritten law, as Prutz suggests, partly because it suited the barristers (who often belonged to the baronage, for the Frankish nobles were “great pleaders in court and out of court”), and partly because the high court was left unbound so long as there was no written code. In the 13th century it became necessary for the legists to codify, as it were, the unwritten law, because the upheavals of the times necessitated the fixing of some rules in writing, and especially because it was necessary to oppose a definite custom of the kingdom to Frederick II., who sought, as king of Jerusalem, to take advantage of the want of a written law, to substitute his own conceptions of law in the teeth of the high court. (b) The second difficulty concerns the text of the law-books themselves. The text of Ibelin became a textus receptus—but it also became overlaid by glosses, for it was used as authoritative in the kingdom of Cyprus after the loss of the kingdom of Jerusalem, and it needed expounding. Recensions and revisions were twice made, in 1368 and 1531; but how far the true Ibelin was recovered, and what additions or alterations were made at these two dates, we cannot tell. We can only say that we have the text of Ibelin which was used in Cyprus in the later middle ages. At the same time, if our text is thus late, it must be remembered that its content gives us the earliest and purest exposition of French feudalism, and describes for us the organization of a kingdom, where all rights and duties were connected with the fief, and the monarch was only a suzerain of feudatories. (2) The assizes of the court of burgesses became the basis of a treatise at an earlier date than the assizes of the high court. The date of the redaction (which was probably made by some learned burgess) may well have been the reign of Baldwin III., as Kugler suggests: he was the first native king, and a king learned in the law; but Beugnot would refer the assizes to the years immediately preceding Saladin’s capture of Jerusalem. These assizes do not, of course, appear in Ibelin, who was only concerned with the feudal law of the high court. They were used, like the assizes of the high court, in Cyprus; and, like the other assizes, they were made the subject of investigation in 1531, with the object of discovering a good text. The law which is expounded in these assizes is a mixture of Frankish law with the Graeco-Roman law of the Eastern empire which prevailed among the native population of Syria. In regard to both assizes, it is most important to bear in mind that we possess not laws, but law-books or custumals—records made by lawyers for their fellows of what they conceived to be the law, and supported by legal arguments and citations of cases. But, as Prutz remarks, Philip of Novara lehrt nicht die Wissenschaft des Rechts, sondern die des Unrechts: he does not explain the law so much as the ways of getting round it.

[1] There are certain connexions and analogies between the kingdom of Sicily and that of Jerusalem during the twelfth century. In either case there is an importation of Western feudalism into a country originally possessed of Byzantine institutions, but affected by an Arabic occupation. The subject deserves investigation.

[2] The holders of fiefs (sodeers) both held fiefs of land and received pay; the paid force of soudoyers only received pay. An instance of the latter is furnished by John of Margat, a vassal of the seignory of Arsuf. He has 200 bezants, along with a quantity of wheat, barley, lentils and oil; and in return he must march with four horses (Rey, Les Colonies franques en Syrie, p. 24).

[3] For the history of the orders see the articles on the Templars; St John of Jerusalem, Knights of; Knights, and the Teutonic Order. The Templars were founded about the year 1118 by a Burgundian knight, Hugh de Paganis; the Hospitallers sprang from a foundation in Jerusalem erected by merchants of Amalfi before the First Crusade, and were reorganized under Gerard le Puy, master until 1120. The Teutonic knights date from the Third Crusade.

[4] As was noticed above, there were apparently separate assizes for the three principalities, in addition to the assizes of the kingdom. The assizes of Antioch have been discovered and published. The assizes of the kingdom itself are twofold—the assizes of the high court and the assizes of the court of burgesses. (1) The assizes of the high court are preserved for us in works by legists—John of Ibelin, Philip of Novara and Geoffrey of Tort—composed in the 13th century. We possess, in other words, law-books (like Bracton’s treatise De legibus), but not laws—and law-books made after the loss of the kingdom to which the laws belonged. There are two vexed questions with regard to these law-books. (a) The first concerns the origin and character of the laws which the law-books profess to expound. According to the story of the legists who wrote these books—e.g. John of Ibelin—the laws of the kingdom were laid down by Godfrey, who is thus regarded as the great νομοθέτης of the kingdom. These laws (progressively modified, it is admitted) were kept in Jerusalem, under the name of “Letters of the Sepulchre,” until 1187. In that year they were lost; and the legists tell us that they are attempting to reconstruct par oir dire the gist of the lost archetype. The story of the legists is now generally rejected. Godfrey never legislated: the customs of the kingdom gradually grew, and were gradually defined, especially under kings like Baldwin III. and Amalric I. If there was thus only a customary and unwritten law (and William of Tyre definitely speaks of a jus consuetudinarium under Baldwin III., quo regnum regebatur), then the “Letters of the Sepulchre” are a myth—or rather, if they ever existed, they existed not as a code of written law, but, perhaps, as a register of fiefs, like the Sicilian Defetarii. Thus the story of the legists shrinks down to the regular myth of the primitive legislator, used to give an air of respectability to law-books, which really record an unwritten custom. The fact is that until the 13th century the Franks lived consuetudinibus antiquis et jure non scripto. They preferred an unwritten law, as Prutz suggests, partly because it suited the barristers (who often belonged to the baronage, for the Frankish nobles were “great pleaders in court and out of court”), and partly because the high court was left unbound so long as there was no written code. In the 13th century it became necessary for the legists to codify, as it were, the unwritten law, because the upheavals of the times necessitated the fixing of some rules in writing, and especially because it was necessary to oppose a definite custom of the kingdom to Frederick II., who sought, as king of Jerusalem, to take advantage of the want of a written law, to substitute his own conceptions of law in the teeth of the high court. (b) The second difficulty concerns the text of the law-books themselves. The text of Ibelin became a textus receptus—but it also became overlaid by glosses, for it was used as authoritative in the kingdom of Cyprus after the loss of the kingdom of Jerusalem, and it needed expounding. Recensions and revisions were twice made, in 1368 and 1531; but how far the true Ibelin was recovered, and what additions or alterations were made at these two dates, we cannot tell. We can only say that we have the text of Ibelin which was used in Cyprus in the later middle ages. At the same time, if our text is thus late, it must be remembered that its content gives us the earliest and purest exposition of French feudalism, and describes for us the organization of a kingdom, where all rights and duties were connected with the fief, and the monarch was only a suzerain of feudatories. (2) The assizes of the court of burgesses became the basis of a treatise at an earlier date than the assizes of the high court. The date of the redaction (which was probably made by some learned burgess) may well have been the reign of Baldwin III., as Kugler suggests: he was the first native king, and a king learned in the law; but Beugnot would refer the assizes to the years immediately preceding Saladin’s capture of Jerusalem. These assizes do not, of course, appear in Ibelin, who was only concerned with the feudal law of the high court. They were used, like the assizes of the high court, in Cyprus; and, like the other assizes, they were made the subject of investigation in 1531, with the object of discovering a good text. The law which is expounded in these assizes is a mixture of Frankish law with the Graeco-Roman law of the Eastern empire which prevailed among the native population of Syria. In regard to both assizes, it is most important to bear in mind that we possess not laws, but law-books or custumals—records made by lawyers for their fellows of what they conceived to be the law, and supported by legal arguments and citations of cases. But, as Prutz remarks, Philip of Novara lehrt nicht die Wissenschaft des Rechts, sondern die des Unrechts: he does not explain the law so much as the ways of getting round it.

[1]

[2]

[3]

[4]

Page:EB1911 - Volume 07.djvu/555

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