NOVEMBER.

Low the leaves lie in the forest; on the damp earth, brown and chill,Gather near the evening shadows. Hark! the wind is sorrowing still.Vanished are the pine-crowned mountains, hidden in a dusky cloud;See the rain, it falleth ever from the wan and dreary sky:Rusheth on the swollen streamlet, wildly whirling, foaming by;And the branches, leafless waving, in the Fall wind low are bowed.See, the golden-rod no longer bends its yellow-plumèd head,By the roadside lies it faded—'mid the grasses—pale and dead;While alone the stately mullein rears its brown and withered crest.Quiet skies of early Autumn mirrors now the lake no more,But its waters struggle fiercely, laden storm-clouds flying o'er,And the rain it falleth ever, and the wind will never rest.Once the hills were clad in scarlet: vanished all their beauty now;Perished now the crown of glory that encircled then their brow;Low the crimson leaves are lying, and the withered boughs are chill;Faded are the purple daisies, and the little pool looks sad,Missing now the gentle flowers that once made it bright and glad;For the rain it falleth ever, and the wind is never still.Closer fall the gloomy shadows, and the forests drearier seem,Still the leaden clouds are flying, rusheth wilder yet the stream;And the reckless wind is telling now a wild and fearful tale,While the trees all listen trembling, and the mullein bows its head,And the dusky lake grows angrier, and the dark pool mourns its dead;For the rain it falleth ever, and the winds but louder wail.

There is in the Royal Library at Munich a room called the Cimelian Hall, in which the manuscripts and works with binding richly ornamented in gold and precious stones are kept. Many a visitor to this hall has felt deep interest as his eyes have rested upon an open manuscript, to be seen through the glass doors of its case, written with inverted strokes and adorned with various colored initial letters. The interest has risen on learning that this contains the 'Assizes of Jerusalem,' of which there are but few manuscripts in existence—one at Venice and several at Paris. This work is in the old French language, and the frequent recurrence on the open page of such words asjurés,larcin,vol,meurtre,[1]in connection with the word 'assises,' leads the visitor to suppose that this may be a judicial report of remarkable criminal cases—a kind of 'Pitaval.'[2]

But these yellow leaves contain one of the most important documents connected with the history of civilization which the night of the middle ages has given us: it is indeed an invaluable inheritance from that period—nothing less than the laws of the kingdom of Jerusalem, as founded by the Crusaders at the end of the eleventh century.

The kingdom of Jerusalem! At the very mention of the name, there seems to pass over us a breeze from that charmed time when Christendom, inspired by its faith with heroic zeal, went forth to rescue from insult and ignominy the tomb of the Redeemer. Who does not feel a kind of longing after that romantic splendor of the Orient, which impelled the people of Europe to leave homes and families upon this great enterprise beyond the sea? Who does not gladly lose himself in contemplating the traditions of life and deeds, contests and poesy of those chivalrous times, and dream over again a short portion of that brief but beautiful dream of the Christian kingdom of Jerusalem?

Nor is it merely this feeling of romance which binds us to the law book of the Crusaders. It has important political and judicial significance. In the kingdom of Godfrey of Boulogne lived mixed up together, formed into a kind of variegated checkerwork, people of all lands and languages of the Occident—French, Italians, Spanish, English, and Germans. The system of law which united this mixed multitude was indeed the German, at least in its fundamental and leading forms and features, as this was before the time when the flourishing of the law school at Bologna had brought again everywhere into use the Roman law. There is, however, a perceptible influence of the Roman law in this work, and indeed an occasional reference to it as an authority. It has, therefore, its importance to jurists, but its general interest is deeper, disclosing, as it does, a view of a distant age, and of a land long since covered with the charm and glory of song.

This manuscript is in the old French tongue, was evidently written by an Italian hand in the latter part of the fourteenth century, and bears the title: 'Livres des assises et bons usages dou réaume de Jerusalem.'

'Assize,' primarily means an assembly of several wise men in the court of a prince for the making of laws; but it comes thence to mean that which they have determined upon as law, and is so used in the judiciary of the Christian Orient.

We shall see that the Munich manuscript does not fully make good its name. It is not in the proper sense a law book, but rather notes in regard to the judiciary of the kingdom, made by authors of unknown names. There are internal evidences that the original compilation must have taken place from 1170 to 1180 of the Christian era, that is, before the recapture of Jerusalem, and is therefore from the best of sources. It contains, however, but a single department of the judiciary system of Jerusalem, and the deficiency must be supplied from the Venetian manuscript. Still, however, there remains little to desire in regard to the completeness of the sources from which we learn the contents of these books of 'Assizes.'

Before passing to a notice of the law book of the Crusaders, it is necessary to premise a brief statement of the political condition upon which this system of law was based, since it is only by knowing this that we can understand the laws.

When the Christian kingdom of Asia was in its bloom, it consisted of four provinces, viz.: 1, the principality of Antioch; 2, the duchy of Edessa; 3, the principality of Syria or Jerusalem; and 4, the duchy of Tripolis. These four formed the kingdom of Jerusalem, of which they were feudal dependencies. The principality of Jerusalem was the home domain of the king of Jerusalem, as Hugh Capet, for instance, was duke of France and king in France.

The kings of Jerusalem, like those of France, surrounded themselves with four crown officers, viz.: the seneschal, constable, marshal, and chamberlain, whose authority and influence were the same as those of the name in Europe.

Each of the above-named divisions was again subdivided into baronies and greater fiefs, the holders of which were called 'men of the kingdom.' The lower vassals were designated by the name of 'liegemen.' Among them were, however, included the immediate servants of the king, ranking with the class from which higher officials are taken in Europe.

The king executed justice in a court constituted of peers, and called the high court,[3]and the laws which governed its decisions were called 'assizes of the high court.'[4]

Those barons who held courts and administered justice to their vassals scattered over the land, of which there were twenty-two in the principality of Syria, based their decisions also upon these assizes; they did not, however, sit in their own right as patrimonial judges, but by royal concession, and the king could at any time he chose preside over these courts, associating with himself any number of his liegemen to sit with him.

Besides these noble vassals, called also the 'chivalry of the kingdom,'[5]there was a very considerable Latin population who held no fiefs, but still were perfectly free men, and were designated as citizens.[6]We find in our work no statement of their political relations; we only know that they had their own law, and that in the issue of the ordinances for the government of their towns or cities, they had a right to participate, and were obliged, in case of need in the land of Jerusalem, to furnish, as were also the clergy, a certain quota of foot soldiers.

To this Latin population justice was administered by a court of sworn burghers, presided over in Jerusalem itself by the viscount of the kingdom, and elsewhere by the viscounts or bailiffs of the several cities. Of these courts there were thirty-seven in the principality of Jerusalem. This was called the lower court, or court of the burghers, and the laws which formed its rule of judgment, 'the assizes of the burghers' court.'

The jurisdiction of the two above-named courts did not, however, extend over all subjects, since that of the clerical courts embraced matters pertaining to the laity, which are now no longer regarded as ecclesiastical: for instance, the case of husband and wife treating each other with mutual blows; for it would seem that these connubial feuds were not quite prevented, either by the gallantry of this time of chivalry, or by the feeling which had animated the rushing crowds when they left Europe for the Orient, that they were going to a land elevated above the range of terrene sins and troubles—perhaps to that they had heard called heaven.

In the seaports, the Italians and people of Marseilles enjoyed the right of being tried by judges of their own, and in accordance with the usages of their own countries; and as if to make this checkerwork quite complete, the Syrian Christians were allowed trial before the rajis or presidents of their several towns. In this latter respect a change was introduced somewhat gradually, which was quite remarkable in view of the prevalent ideas of the times. Feudalism had tended to concentrate the power as much as possible in the same hands, without regard to the difference of matter in question—that is, to divide labor by quantity, and not by quality. But here we find for the first time a division of jurisdiction according to thematter, and in the later period of the kingdom, marine and commercial courts were established. The former, called 'courts of the chain'[7](from the chain by which the entrance to the harbor was closed), gave judgment in questions of freight or payment of sailors' wages, or in any questions which might arise between the ship-owners and captains. The commercial court,[8]which, in addition to its own special functions, took the place of the properly Syrian courts, was constituted of four Syrian and two Frankish judges, under the presidency of a Frank. This was an important measure, and indicated great progress in international commercial intercourse, since in other matters the various nationalities of the kingdom were so strictly distinguished that the Syrian could not be witness against the Greek, or the Frank against the Armenian, or the Jacobite against the Nestorian, etc. In commerce and trade, the assizes held not so strictly in relation to religion and national descent; for whether Syrian or Greek, Jew or Samaritan, Nestorian or Saracen, they were still men, as well as the Franks, and must pay or serve according to judgment rendered, just as in the burghers' court, and hence it was determined that the court of commerce should apply the assizes of the burghers' court.

The above is given as the basis upon which the legislation of the kingdom rested, and now we may best hear the assizes themselves in regard to the beginnings of this legislation. In the first chapter of the assizes of the high court, as given us by John of Ibelin, we have the following:

'When the holy city of Jerusalem was won from the enemies of the cross, and restored to the true men of the Saviour, * * * when the princes and barons who conquered it had chosen, as king and lord of the kingdom of Jerusalem, Godfrey of Boulogne, * * * who was a man of understanding, and anxious to place the said kingdom in a good condition, and to have his people and all others who should come and go and dwell in the kingdom, guided, kept, ruled, sustained, held together, and judged according to justice and reason, he chose, upon the advice of the patriarch of the holy city and church of Jerusalem, and that of the princes, barons, and wisest men he could find, prudent men, whose business it should be to inquire and know from the people of various lands there present, what were the customs of their respective countries. All that these men could ascertain they wrote, or caused to be written, and laid before Duke Godfrey, who assembled thepatriarch and the other people mentioned above, showed them the result, and caused the papers to be read to them. With their counsel and acquiescence he took from the report what seemed to him good, and made out from the same assizes and customs, which should be held, applied, and observed in the kingdom of Jerusalem.'

Our author further tells us that both Godfrey himself and the later kings, in their diets of the kingdom, extended and improved these laws. The diets were generally held at Acre, at the season of the arrival of the pilgrims from Europe, as this gave opportunity to ascertain what was the law of their several homes in relation to the matter in question; and it is even said that messengers were sent over the sea expressly for this purpose. William of Tyre, the celebrated chronicler of the time, has preserved to us an interesting case of this special legislation. He says that after the conquest of the holy city, and return home of most of the pilgrims, the danger from the Saracens having become imminent, many of the newly invested feudal tenants began to desert their fiefs, upon which Godfrey issued the following assize:

'Whoever shall hold such deserted fief in possession for one year, shall be considered as having gained it by prescriptive right, and shall be defended in its possession against the previous owner who has deserted it.'

The same William of Tyre tells us of a diet held at Neapolis in Samaria, in the year 1120, 'at which, in order to banish from the land the immoralities and crying abuses which had crept into it, there were issued comprehensive regulations, embraced in twenty-five chapters; and it seems from the form of the oath of the later kings that Amalrick I and his son Baldwin IV had undertaken a formal revision of the legislation.' It is therefore probable that we retain very little of the system establishedimmediatelyupon the conquest. If we had no evidence of revisions and changes, the sad and unquiet times through which Godfrey had to pass would fully justify this conjecture.

But let us hear what tradition says in regard to the external condition of these laws:

'These assizes (vide chap. iv) were written each by itself in large Gothic letters. The first letter at the beginning was illuminated with gold, and all the rubrics and titles were written separately in red, as well all the other assizes as those of the higher and those of the burghers' court. Each sheet had the signature and seal of the king, the patriarch, and the viscount of Jerusalem, and these sheets were called 'Letters of the Sepulchre,'[9]because they were kept in a great chest in the Holy Sepulchre. Whenever a question arose in court in regard to an assize, making it necessary to consult these writings, the chest was opened in the presence of nine persons. The king must either be there personally or be represented by a crown official, and then two vassals of the king, the patriarch of Jerusalem, or in his place the prior of the Holy Sepulchre, two canons, the viscount of Jerusalem, and two sworn citizens. So the assizes were made—so they were kept.'

These statements have proceeded upon the supposition that this law book was for the whole kingdom; but history has preserved facts which look to the conclusion that this was law only for the principality of Syria. But when we consider that these assizes actually procured for themselves a recognition beyond the bounds of the kingdom, and that no special law for the other three grand divisions has ever been found, we shall be constrained to regard this system of law as that of all the provinces.

The bloom of the Oriental kingdom of Jerusalem was but brief. On the 9th of October, 1187, Saladin captured the holy city, and the treasures of the Holy Sepulchre fell into infidel hands. The fate of theLettres du Sepulcrein this catastrophe is in dispute. Most think that they were destroyed by the enemy; some, however, and among them Stephen of Lusignan, whose work, entitled, 'Chorography and brief General History of the Island of Cyprus,' which was printed at Bologna in 1573, maintain that they were saved and carried to Cyprus. It is certain that we no longer possess the originals; but the authority of these assizes was not extinguished by that catastrophe, but on the contrary, their sway became wider with the extension of the Frankish rule.

In this respect the isle of Cyprus is most important. As in the year 1193 this 'sweet land and sweet island' (as the poets of the time called it) was placed by Richard the Lion-hearted under the government of Guido of Lusignan, the assizes of Jerusalem went into force immediately as the law of the new kingdom. This effect was increased by the union of the two kingdoms which took place soon after, but was unfortunately of brief duration. Thus was preserved to this law book a flourishing period of life long after the Christian kingdom in Asia was lost.

Then, when in the year 1204 the Latin empire was established at Constantinople, the assizes of Jerusalem went into effect there. The following is an account of this event:

'As there were many peoples about Constantinople which had not been governed by the Roman law, and the situation of the conqueror himself required new ordinances, and because indeed the empire could not be governed otherwise than by the 'usages and assizes' as they are in the Orient, the emperor Baldwin determined to send a messenger to the king and patriarch of Jerusalem, praying them to send to him a copy of their 'usages and assizes.' When these arrived, they were read in the presence of all the barons, and it was thereupon resolved to administer minister justice in accordance with these, and especially those chapters adapted to times of peace.'

Hence there are translations of the assizes to be found in modern Greek, and the dukes of Athens, princes of Thebes, and other lords of that region, who appear in Shakspeare's comedies, applied this system of law, and perhaps many an obscure custom referred to in those plays might be explained by this fact.

It was especially the customs preserved in the principality of Achaia which the Venetian government of Negropont subjected to an examination by twelve citizens, and which, with a few exceptions, particularly in the parts relating to judicial combats, were sanctioned by the doge Francesco Foscari.

But the most romantic chapter in the history of the extension of this law, is the account of its introduction into the Frankish principality of the Morea. This principality was wrested from the Byzantine empire, in the year 1213, by William of Champlitte, at the head of a band of adventurers, and passed by intrigue into the hands of the family Ville Hardouin. An old chronicler of the times tells us that when the second prince of this family, Godfrey II, reigned in the Morea, an imperial squadron landed at Pontikos, carrying the beautiful Agnes, with her suite of ladies and knights, to James, king of Aragon, to whom her father had promised her in marriage on receiving from that king the promise of an auxiliary corps for his army. Godfrey was a man who well understood human life. He appeared at the port, testified his high veneration for the princess, and invited her to rest herself from the voyage in his land. The princess seems not to have regarded this journey to her unknown bridegroom as very pressing; she accepted the invitation, and on the second day Godfrey's friends suggested to him that he ought not to let slip so fine a chance to secure a beautiful wife. His decision was at once made. He presented himself as suitor to the princess, and succeeded in convincing her that it would be much better for her to marry him, whom she had seen and knew, than a man of whom she knew nothing, who might be crooked, or lame, or otherwise unworthy of her.She consented to be married at once. Her train of attendants returned pleased to Constantinople, bearing the tidings to the emperor, her father, whose rage on receiving this intelligence may be imagined. There was, however, but one thing to be done—he must bear it with the best grace he could. The parties met afterward at Larissa. Godfrey resigned his crown to his father-in-law, received it back again as a fief from him, and was required to accept the assizes of Jerusalem as the law by which he should govern it.

This system of law differs from others in this important respect, that the highest nobility and bravest heroes of the Christian Orient were the most zealous and successful jurists. We cannot give them a special notice. The most distinguished was John of Ibelin, count of Jaffa, Ascalon, and Rama, born about the year 1200. His attempts to restore the lostLettres du Sepulcrehas succeeded so well that his work has, until recently, been regarded as identical with those lost books, and evennow, when the laws of the kingdom of Jerusalem are spoken of, the work of John of Ibelin is generally understood to be meant. It was this very book which the barons of the kingdom of Cyprus, in 1368, when Peter I, by his arbitrary rule, had subverted justice, set up in a solemn assembly as the code of the kingdom. In order to make it as like as possible to theLettres du Sepulcre, it was sealed in the same manner, placed in a closed chest, and kept in the cathedral of Nicosia, and this chest was not allowed to be opened except in the presence of the king and four vassals.

When in the year 1489 the republic of Venice obtained, through Catharine Cornaro, possession of the isle of Cyprus, the republic bound itself by a solemn act to observe these assizes. The copy which had been preserved at Nicosia was subsequently lost by some unknown event, and when in the mean time the French language had ceased to be the prevailing one, there was a commission appointed in the year 1531 to make out a new text from the best manuscripts which could be found. This revision of the assizes of Jerusalem was translated into Italian, and was still in use in 1571, making the period during which it was in force almost five centuries.

Having thus traced the external history of this system, we now turn to its material contents.

No one any longer regards the forming of a system of law as an independent, arbitrary, or accidental thing. Every such must be a product and copy of the entire intellectual life of the age, and this piece of legislation is indeed a true mirror of the Christian world in Europe at the time; and the outline only rises more sharply, boldly, and clearly to view, because there is presented to us at the same time so rare a phenomenon in the march of civilization as the building up of a state organization, for which there is no foundation in the land where it is to be established.

The manner in which the spiritual elements fermented and boiled at that time in the Occident—how the most shocking rudeness and barbarism throve side by side with the most exalted religious enthusiasm—the lowest forms of materialism by the side of spiritual fanaticism—superstition, ignorance, and vile falsehood, side by side with energy, valor, and generosity—all this is drawn with sharpest features in the assizes.

The history shows us these men in their frantic cruelty, butchering the inhabitants of conquered Jerusalem, men, women, and children without distinction, delighting in their torment, and then, smeared with their blood, moving in procession to the holy places, singing their Christian songs of praise, all dissolved in tears of deepest emotion. They had left Europe in swarms, many so ignorant as not to know whether the holy land which they sought lay on this earth or in those regions whichthey had heard called heaven—so frenzied in their fanaticism as to forget that they might still have bodily wants, and hence throwing away their effects, and yet so low in their ideas as only to enjoy physical things. Such are very much the men for which these laws seem to have been made. Upon one leaf we read: 'That man is without sentiments of honor, though he be of highest rank, who, being called to stand as counsel by the lowest vassal, before a tribunal of justice, declines to do so; for they are all alike the true followers of Christ;' and by the side of this that most unchristian of all legal institutions, slavery, assumes a form so barbarous that the legislator does not blush to place slaves, though among them were Christians, on the same level with domestic animals.

This same irreconcilable opposition which appears in moral principles, shows itself again in the political foundation of the assizes. Originating in the clash of arms, grown up in the contests and necessities of war, on a soil where nothing but constant war could save it from annihilation, the system is purely martial—made for conflict and strife. And still it is but one side which shows this character; for, in the midst of this precarious existence of the new kingdom, is seen an elevation of commerce till then unknown—a pursuit of trade for which feudal ideas had provided no place. As Schiller declared that the Crusaders laid the foundation of civil liberty in Europe, so we may say that in the assizes of Jerusalem the narrow views in regard to civil life, which controlled the west of Europe in the middle ages, were exploded. Here the idea of the modern state dawned, though of course and singularly enough, side by side with its absolute antithesis, the feudal state in its purest form.

In the ancient view, it was natural that any man should rule who had the power, and incomprehensible that any one should allow himself to be ruled who could avoid it. Any other than a forced relation to a lord was nonsense to antiquity, and the moral duty of obedience was unknown.

The idea of voluntary obedience, however, having dawned and become penetrated with the light of Christianity, formed the first element of the feudal system. No prescribed series of duties within the cold enclosure of legal forms bound mutually to each other the lord and his vassal. They were bound by the all-embracing feeling of fidelity. Hence the Lombard law of feuds compares the relation to that of husband and wife.

While on the one hand, in the youth of this institution, the virtues which spring from reciprocal fidelity and love developed themselves from this relation—a relation inwardly and mutually binding lord and vassal, and resulting in holding together all the members of the state—so on the other hand, where there is no restraint to insolence and arbitrary despotism, except that found in the mere sense of moral obligation, they transcend all bounds, and find their natural reaction in the resistance of the subject, destroying the very idea of a state. In the feudal system, however, it is not the state which guarantees, secures, and defends the rights of the individual. Whoever claims protection and justice is referred to his immediate feudal superior, to whom alone, and not to the state, as a whole, he owes duty. The state, as a moral person—as a society—is entirely in the background.

It is one of the rarest phenomena which present themselves in the Christian laws of the Orient, that in connection with this state-life based upon pure private right, the modern notion of society should have had its rise. One of the first appearances of change was in the criminal law of the assizes. Not that this rose above the spirit of the times, for it was barbarous in the extreme, impregnated throughout with the idea of literal retaliation—for instance, whoever secretly buried a dead body, must be buried alive—and again, it recognized scarcely any punishment but death and the most horrid mutilations, such as cutting off of nose, ears, tongue, hands, etc., and cannot, with all the palliations arising from the necessities of the Crusaders, be regarded as an improvement upon the preceding.

But among the genuine products of the middle ages, suddenly arose a principle which has become the basis of modern criminal law, though it won its first recognition, and that with difficulty, centuries later.

Punishment inflicted upon the guilty was at that time universally regarded as an atonement due to the injured person, but the assizes declare: 'Punishment is decreed, not in the interests of the injured, but in those of the entire state.'

In carrying out this principle, the sufferer from theft, when he might have taken the thief and voluntarily let him go, was punished by forfeiture of body and estate to the feudal lord, and the assizes declare that 'when no one in case of murder appears to make complaint, the king, or the ruler of the land, or the lady of the city where the dead was found, shall do so, for the blood of the slain cries to heaven.'

As before intimated, there are two grand divisions of the assizes. Those of the high court contain a complete system of feudal law, of which indeed a fuller view could scarcely be found than the one above named by John of Ibelin. The feudal law of the Orient was like that of France of that day, though peculiarities are everywhere to be met with as the result of the constant state of siege in which Jerusalem was involved; and hence the fact that the feudal system, which had its birth in war, and led ever thither again, appears nowhere more clearly and fully than in these assizes.

Reference has been made to the shortness of the period allowed by the statute limiting titles and claims. Of the same class is the rule that when a fief falls to one, he cannot claim it unless he be present in the land and seek the investiture in his own person. Hence is explained the oft-repeated maxim of the feudal lawyers of Jerusalem:A mort ne peut aucune chose escheir; which means that in matters of inheritance, substitution is not valid, and each must derive his claim from the last holder of the fief—thus restricting the succession of minors, who would need protection.

In this oriental law there was a peculiarity in regard to granting leave of absence to vassals. We have seen that the vassal was not allowed to leave home, lest his services should be lost to the state in a time of danger. But a journey back to Europe might be necessary, and in this case the two interests were united by an arrangement calledle commendement du fief, by which the vassal gave up his fief to his lord, who received its income and secured the absent owner against the provisions of the law limiting the claims of absentees to one year.

Feudal duties were the same in the Orient as in the Occident, since fidelity is always and everywhere the same thing; but the greater perils which encompassed the Crusaders led to a more rigid exaction of the performance of these duties.

In regard to the homage which the feudal tenant performs on entering into this relation, the assizes say:

'If a man or woman pay homage to the chief feudal lord of the kingdom, they shall, with their folded hands lying in his, say: 'Sire, I will be your vassal for this fief, and I promise to protect and defend you for life and for death.' And the lord shall answer: 'And I accept thee with God's faithfulness and my own;' and he shall in faithfulness kiss him upon the mouth.'

A special duty in the Orient was to redeem a feudal lord from captivity among the enemies of the cross, even by pawning or selling one's own fief orthat obtained through a wife. The chief duty, however, even in this case, was that of military service, and in the Venetian manuscript is to be found the rule by which this service was to be rendered.

A peculiar case deserves here to be mentioned. It might happen that a man held tenures from two different lords. This was not in itself inadmissible, and he had only, in accepting the latter fief, to make a reservation of his fidelity to an earlier lord. He could then discharge his duty to one by a substitute, and might even render service to one against the other. It was only forbidden personally to fight a feudal lord. John of Ibelin says:

'In such case the vassal shall appear before his lord, and shall say to him, in the presence of his men: 'Sire, I am your man, but with reservation of my duty to N. N. This N. N. now comes in arms against you, and I regret that I cannot help you, because my lord is on the other side, and I cannot bear arms against him,where his body is; I must, therefore, report myself aspersonallyserving neither you nor him. I desire my people to serve you against him who would rob you, and who now leads the contest against you.''

Women to whom a fief or the guardianship of one should fall, could not of course render military service; but in place of this, they were obliged to marry—a punishment by most perhaps not deemed severe, except for the fact that they could not freely choose their own husbands.

John of Ibelin says that 'if a fief fall to a girl of twelve years or more (if younger, she is to be held under a guardian, according to law), the feudal lord can summon her to take a husband.' This may be done by the lord in person, or by his authorized attorney, who thus addresses the lady: 'My lady, I offer you, in the name of my lord (name given), three knights (names all given), and call upon you in his name, within the time of (time specified), to take one of the three whoso names have been given you.' This may not, after all, be a great hardship, for the ladies of our time and land are not sure of three candidates to choose from. These three must of course have been of the lady's own rank, and have given their own consent to the presentation of their names—otherwise it would be no offer.

'If the lady thus warned shall not, within the prescribed time, either choose one of the three candidates, or assign for not doing so a reason acceptable to the court,'—for instance, that she was more than sixty years old would be a valid reason, since if she had a husband living, he would not be required to serve after that age,—'she shall lose the fief for one year, after which time the lord may challenge her again.'

On the other hand, if the lord shall omit to make this demand, the lady can serve a warning upon him, that he must, within three times fourteen days, present her three eligible candidates for her choice in marriage, and if he shall fail to do so, she can then choose for herself. If the lord had failed, however, because he could not find the men who were willing to run the risks of this candidacy, it is difficult to perceive what additional inducements the lady's efforts could furnish.

So much for the law of the chivalry of the kingdom, I now pass to that of the burghers.

The assizes of the burghers' court offer neither in matter nor in form so complete a system as that already noticed. On the contrary, it is but a motley and confused jumble, more like a collection of decisions in concrete cases than a proper law book. They are, however, exceedingly rich in interesting matter.

The character of this burgher class, and indeed its very existence, is a most remarkable phenomenon; for this respectable class, occupying a position almost on a level with that of the nobility, was several centuries later in making its appearance in the Occident. The burgher who struck a nobleman lost his hand, while the nobleman whostruck a burgher lost his horse, and must pay one hundred sols. Later, however, the burgher could commute his punishment with a fine of one thousand sols, and must pay one hundred sols as an indemnity, thus making the two cases nearly equal.

The term burgher has generally been understood to designate the inhabitant of a city, whose quiet and orderly life was passed in occupations of trade and industry; butsuchburghers were surely not to be found in the kingdom of Jerusalem; for the burghers sprang from the common people, of which the accounts of the Crusades made the chief portion of the army of the Crusaders to have consisted; and when we remember how little respect these showed for the princes in the army—that they once chose Godfrey Burel out of their own number as their leader—we shall not be astonished that there arose from this class of warriors a population who were not to be subjected to a humiliating position in relation to the chivalry.

A free and vigorous life shows itself in the whole system of law which governed these burghers. Here we meet, for the first time in the middle ages, the principles of marine and commercial law, rising above the then rather limited views of the Roman law on those subjects, which in the German law books are not mentioned at all. We find among other things strict personal arrest of delinquent debtors—a very ingenious provision against fraud—and a settlement of those cases of intervention which have so troubled our jurists, by an application of the rule, 'The hand must defend the hand,' as follows:

'Be it known that if any one lend his horse to another, and the latter say to him: 'To-morrow I shall bring your horse back,' and being allowed to take the horse away, he is apprehended by another person for debt, this creditor may take the borrowed horse for his debt.'

The two following laws give us something of an insight into the condition of the kingdom of the Crusaders, the one in relation to servants, the other in relation to physicians:

'When it shall happen that a man or woman hire a man servant or a chambermaid, reason requires that the man or woman who hires them shall have power to dismiss them at will, because they are bound for their wages only so long as they serve. But the servant or maid cannot separate themselves from their master or mistress without their consent until the termination of the engagement. But when the servant or maid thus hired shall wish to go back over the sea, reason requires that the man or woman grant them leave, because they wish to cross the sea, and they shall pay them according to the time of service. * * * When, however, servant or maid shall departwithoutsuch leave, they break faith and forfeit their wages for the whole time of service. And if such servant be found with any other person in the kingdom, his or her hand with which they made promise to serve and afterward denied God and broke faith, shall be pierced through with a red-hot iron.'

Again:

'When it shall happen that any one hire a servant or chambermaid, become angry with him or her, and box their ears, and the latter enter complaint to the court, reason requires that the man or woman benotsubject to judicial proceeding for a simple boxing of the servant's ears. But if the man or woman shall excessively beat the servant or maid, or cause the same to be done, or shall inflict upon them an open wound, and they shall enter complaint of the same to the court, law and reason require that the servant or maid receive justice the same as against strangers.'

In regard to physicians, the assizes provide as follows:

'If by any mishap I wound one of my slaves, or the same be wounded by any other person, and I call a physician, who agrees with me to heal him for a stipulated price, and then says to me on the third day, after having well observed the wound, that he can heal it without fail, and it come to pass, because he uses the lancet unskilfully, or when he should not have used it at all,or because when he should have cut the wound or swelling in the top or lengthwise he cut it obliquely, and the patient die in consequence; or when the slave's wound is in such place as to require warm applications, for instance upon the brain or nerves, and the physician always makes cold ones; or if my slave have a swelling upon a part where emollients should be applied to mollify the sore and cause suppuration and discharge, and the physician make always warm and dry applications by which the sore is internally inflamed, and he die of it; or if the physician do not attend him every day, and he die in consequence, reason requires that he pay what the slave was justly worth before he fell sick, or what the owner had paid for him; for this is right and reasonable, according to the assizes of Jerusalem. And the court shall expel that physician from the city where he performed such malpractice. But if the physician can show before the court that the patient drank wine or ate meat which he had forbidden, or did anything else which he should not have done at all, or at least not so soon as he did, reason requires that, even though the physician could or should have treated him differently, he should not be made to pay for him; for it is more reasonable to suppose that death followed from the patient's doing what was forbidden than in consequence of the medical treatment. But if the physician make no prohibition in regard to eating or drinking, he must still pay for him, for the physician is justly bound, as soon as he sees a patient, to direct what he shall eat and what he shall not eat, and if he do not do this, and mischance occur, it should come upon him.''And if a physician be guilty of such malpractice in case of a Frankish man or woman, reason requires that he should be hanged.'

'And if a physician be guilty of such malpractice in case of a Frankish man or woman, reason requires that he should be hanged.'

We can see from this assize that a law sometimes effects the opposite of that which was intended, and unreasonable provisions oppress the patient instead of the physician. Amalrick I fell sick, and felt that he needed an aperient, but the Syrian physicians refused to prescribe such. He sent for the European physicians, and they also declined to take the hazard of prescribing. To obtain the prescription there was no alternative but to issue a royal rescript absolving the physicians beforehand from the provisions of this assize. In the mean time, however, the favorable period passed by and the king died.

In regard to marriage—the most important of social institutions—the provisions of the canon law are mainly reproduced, with the genuine German practice of joint possession of the property, as expressed in the passage:Sachés que nul home n'est si dreit heir au mort come est sa feme.('No one so properly as the wife inherits the property of a deceased husband.')

Still, however, oriental views left their traces upon this institution. This appears in the facility with which a man could obtain a divorce from his wife, and in the jealous strictness in regard to conjugal infidelity. Vitry says:

'The pullans'—a name analogous to that of creole in the West Indies, given to the descendants of the Crusaders in the Orient—'have gone so far in their oriental zeal, that they no longer allow their wives to go to church, to processions, or to any religious exercises.'

When the council of Neapolis had provided cruel and barbarous mutilations for persons unfaithful to the marriage vow, King Amalrick issued the assize that 'the man who should detect his wife in the commission of such offence, might without guilt kill both parties;' but he added the very nice distinction, that 'if he killedoneparty and spared theother, he should, as a murderer, be hanged without grace.' Perhaps this law may have been a device to save both parties; for a man would naturally hesitate to undertake a work, failure tocompletewhich would cost him his life.

The last means everywhere for establishing truth was the judicial combat. There are found, by way of exception, in the assizes of the burghers' court, cases of the judgment of God by the fire test, in which the defendant is acquitted ofthe charges against him, by holding in his hand, without injury, for a given length of time, a red-hot iron. Torture was sometimes prescribed, and the so called abrevement (water test) used. The assize says:

'If the accused confess the crime charged, he shall be hanged; if he do not confess, he shall be drawn to the torture, and kept in the water until he shall confess, and shall then be immediately hanged. But if he continue three days without confessing or dying under torture'—a thing not easily imagined—'he shall be imprisoned one year, and then set free.'

The complainant must prove a charge of murder, high treason, or manslaughter, by single combat with the accused. Women, old men, and non-combatants might be represented by a so-called champion.

John of Ibelin describes the combat as follows:

'The knights who engage in the combat for murder or manslaughter must fight on foot and without helmet, with heads shorn around, being dressed in red military coats, or shirts of red silk falling down to the knees, the arms cut off above the elbow, red breeches of cloth or silk, and shields higher by half a foot than their heads, with two holes of the ordinary size, so that the antagonist can be seen through them. Each shall have a lance and two swords, one of the latter girded about him, the sheath drawn up to his hips, the other fastened to the shield, so that he can have it when needed.'

Only three days may intervene between the interchange of pledges and the combat.

'When the combatants who shall have mutually pledged themselves to the combat present themselves, they must appear on the appointed day on foot, between six and nine o'clock in the morning, before the palace of the lord, and call him, being clothed and equipped as above, having also several shields and swords borne before them, in order that, on entering the place of combat, they may select what they need.'And then the lord shall cause all the weapons to be examined by his court, so as to know whether they are in order; and if one lance is longer than the other, he shall shorten it, and he shall have the two combatants well watched as they go to the place of combat, that neither may run away; also that they receive no bodily injury or annoyance, and be not insulted or derided; for the lord must protect them against all this, since they are in his keeping. When they shall have entered the place of combat, the feudal lord shall station some of his people to watch the place, and one of these shall say, in the presence of the others, to each of the combatants: 'Select your weapons which ye desire in order to finish the combat.' This they shall do, and the weapons selected shall be kept in the place, and the rest carried away. Then shall each combatant be made to swear that he carries about his person neither talisman, nor charm, nor witchcraft, that he has had no such provided for this combat, and that no other person has done this with his knowledge, that he has neither given nor promised anything to any one to procure the making of talisman, charm, or witchcraft, in order to aid himself or damage his antagonist in this contest, and that he bears about him no other weapons than those seen by the court.'Then shall they bring the combatants together upon the place of combat, where there shall be a copy of the gospels. The accused shall first swear upon his knees with his right hand upon the gospels, and shall say: 'As I have not murdered the deceased, so help me God and the holy gospel.' The complainant shall say that he lies, and that he takes him up as a perjured person, and shall then take him by the thumb, and shall swear: 'So let God and his holy gospel help me, as the accused murdered the deceased.' And then shall the guards station the combatants, one at each end of the place, and the proclamation shall be made at all the four corners of the field, that no one of whatever rank shall do or say anything by which either party can be helped or hindered, and in case any one shall do so, his person and goods shall fall to his feudal lord. And if the corpse of the murdered person is present, it shall be so placed as to be seen over the entire place of combat, and the complainant, whether man or woman, in case of being represented by a combatant, shall be there bound soas neither to benefit nor injure either of the parties by word, or deed, or bearing, and shall only pray to God, but not so as to be heard by either combatant. * * * And the guard shall so arrange that the sun cannot shine more in the face of one than of the other; and one of the guards shall then say: 'Shall the command now be given? We have made all ready.' And the lord shall answer: 'Let them come together.' And they shall let them come together, and shall withdraw themselves; and if one fasten upon the other, and they wrestle and fall, the guards shall go to the place and as near to them as they can, in order to be able to hear in case one shall cry for grace; and if one cry and they hear, they shall say to the other, 'Cease; it is enough.' And then shall the lord cause the conquered party to be taken to the gallows and hanged by the neck' (a grace scarcely worth crying for), 'or his corpse, in case he had been killed without crying for grace. The weapons of the vanquished man and those which the victor threw away belong to the lord. Should it appear in the course of the contest that one of the parties had other weapons than those which had been seen by the court, the guards shall seize him, and the lord shall pronounce sentence upon him as a murderer.'And if any one, who is no knight, is accused of murder, it shall be done as above, only that the combatants shall be armed otherwise than as knights.'

'And then the lord shall cause all the weapons to be examined by his court, so as to know whether they are in order; and if one lance is longer than the other, he shall shorten it, and he shall have the two combatants well watched as they go to the place of combat, that neither may run away; also that they receive no bodily injury or annoyance, and be not insulted or derided; for the lord must protect them against all this, since they are in his keeping. When they shall have entered the place of combat, the feudal lord shall station some of his people to watch the place, and one of these shall say, in the presence of the others, to each of the combatants: 'Select your weapons which ye desire in order to finish the combat.' This they shall do, and the weapons selected shall be kept in the place, and the rest carried away. Then shall each combatant be made to swear that he carries about his person neither talisman, nor charm, nor witchcraft, that he has had no such provided for this combat, and that no other person has done this with his knowledge, that he has neither given nor promised anything to any one to procure the making of talisman, charm, or witchcraft, in order to aid himself or damage his antagonist in this contest, and that he bears about him no other weapons than those seen by the court.

'Then shall they bring the combatants together upon the place of combat, where there shall be a copy of the gospels. The accused shall first swear upon his knees with his right hand upon the gospels, and shall say: 'As I have not murdered the deceased, so help me God and the holy gospel.' The complainant shall say that he lies, and that he takes him up as a perjured person, and shall then take him by the thumb, and shall swear: 'So let God and his holy gospel help me, as the accused murdered the deceased.' And then shall the guards station the combatants, one at each end of the place, and the proclamation shall be made at all the four corners of the field, that no one of whatever rank shall do or say anything by which either party can be helped or hindered, and in case any one shall do so, his person and goods shall fall to his feudal lord. And if the corpse of the murdered person is present, it shall be so placed as to be seen over the entire place of combat, and the complainant, whether man or woman, in case of being represented by a combatant, shall be there bound soas neither to benefit nor injure either of the parties by word, or deed, or bearing, and shall only pray to God, but not so as to be heard by either combatant. * * * And the guard shall so arrange that the sun cannot shine more in the face of one than of the other; and one of the guards shall then say: 'Shall the command now be given? We have made all ready.' And the lord shall answer: 'Let them come together.' And they shall let them come together, and shall withdraw themselves; and if one fasten upon the other, and they wrestle and fall, the guards shall go to the place and as near to them as they can, in order to be able to hear in case one shall cry for grace; and if one cry and they hear, they shall say to the other, 'Cease; it is enough.' And then shall the lord cause the conquered party to be taken to the gallows and hanged by the neck' (a grace scarcely worth crying for), 'or his corpse, in case he had been killed without crying for grace. The weapons of the vanquished man and those which the victor threw away belong to the lord. Should it appear in the course of the contest that one of the parties had other weapons than those which had been seen by the court, the guards shall seize him, and the lord shall pronounce sentence upon him as a murderer.

'And if any one, who is no knight, is accused of murder, it shall be done as above, only that the combatants shall be armed otherwise than as knights.'

If the vanquished man did not fight for himself, but as a substitute, his lot was subject to some variation; if he fought for a woman, then nothe, but thewoman, was to be hanged; if he fought for a witness who had been accused of perjury in a civil suit, then the champion was to be hanged and the perjured man merely lost his right of testifying on oath; in case of representing any of the principal parties in a criminal process, a vanquished champion and the person whom he represented were both to be hanged; and in case of representing a witness in a criminal case, thevanquished champion the witness, and the complainant were all hanged.

It is easily perceived that in such single combat the judgment of God was not upon the main question, but upon the question which of the two had committed perjury. So in case of the application of the single combat in civil suits, which, however, could take place only when the amount claimed was at least one mark.

Whoever prosecuted a claim must establish it by at least two witnesses; and if he brought these, the defendant could not establish the contrary by better witnesses or documents, but must either submit, or convict the witnesses of perjury. This was done as follows: When the first witness, kneeling, had taken the oath, the defendant stepped forward, took hold of the witness' thumb, and raised him up, declaring him a false and perjured witness, and that he was ready to maintain this with his life. Then followed the judicial combat as above.

The procedure was similar when any one would contest a judgment already rendered. The court itself must be solemnly accused of falsehood; the complainant must fight withallthe associate judges of the court, or have his tongue cut off as a calumniator. Whoever in such case did not vanquishallthe judges of the court, and that, too,on the same day, must be hanged.

The obvious remark in relation to all the processes above described is, that unless hanging was much more honorable then than now, however numerous the capital crimes committed, probably few complaints were entered, very few witnesses accused of perjury, very few combatants cried for grace, even in the most desperate struggle, very few judicial decisions were contested, and very few injured husbands used their right of punishing the unfaithful wife and her accomplice, sinceall parties, innocent and guilty, stood about equal chances of being hanged at the end.

The Crusades furnish the subject of frequent popular disquisitions and, sketches, but the laws by which theCrusaders lived in their promised land have rarely, if ever, been popularly sketched in this country. This brief notice may do something toward supplying this desideratum, and at the same time toward reconciling the most poetic reader—the greatest admirer of the institutions of chivalry—to having been born in this prosaic age, nearly a thousand years later. It may make such persons feel that even 'the glorious uncertainty of the law' has some advantages over the judicial processes of the kingdom of Jerusalem.

But I must not close my article, as some in similar cases have done, without informing the reader to whom he is indebted mainly for it. I have myself often entered that hall in the Royal Library at Munich, and looked with interest upon that manuscript of the Assizes of Jerusalem, but I have never studied it. In the winter of 1858, however, I heard a course of popular lectures on various subjects, by a number of distinguished men, before an audience of invited ladies and gentlemen, at the lecture room of Baron von Liebig's chemical laboratory. One of these was delivered by Baron de Voelderndorff on the Assizes of Jerusalem. On opening my box of books, after my return from Europe a few weeks since, I came across a volume containing the course of lectures to which I have referred. As my eye rested upon this one, I remembered the interest with which I had listened to its original delivery, and resolved that the public should have a chance to feel something of the same. This article is the fruit of that resolution, and though not strictly a translation, may still be regarded as little more or less than such, and the credit given wherever the reader shall deem it due.

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