Arguably the
most fundamental function of any state is the administration of justice. It is
when a government fails to deliver justice that it loses its legitimacy, and
either becomes tyrannical or starts to disintegrate into anarchy. This is what
makes the study of legal systems so essential to the understanding and
assessment of the legitimacy and efficacy of any government. The legal system
in the Kingdom of Jerusalem is no exception, and Dr. Schrader provides a quick summary below.
Fundamental to an
effective system of justice is that the participants accept and recognize the
legitimacy of the legal authorities. This is notoriously difficult when the
administrators of justice speak a different language, have a different faith,
or follow different legal traditions from the subjects of the legal system. As
a result, the imposition of law by an invading force is inherently challenging,
and wise conquerors have generally been cautious about replacing local law and
custom with their own system.
The Kingdom of
Jerusalem faced a particularly daunting challenge, because from its inception the
Kingdom of Jerusalem was a multi-ethnic, multi-lingual and religiously diverse
state. Quite aside from the new comers
from Western Europe, the native population of the Holy Land was already
polyglot and non-homogeneous when the men of the First Crusade arrived. There
were, for example, still Jews living in the Holy Land, although their numbers
were comparatively small, a large portion of the native population had
converted to Islam at some point in the more than four hundred years since the
first Arab invasion. However, often forgotten by modern commentators, the
majority of the population was composed of Orthodox Christians. These, in turn
were composed not only of Syrian Orthodox Christians (both Maronite and Jacobite),
but also Greek, Armenian, Coptic and even Ethiopian Orthodox communities.
The rulers of
the crusader states responded intelligently to the challenge confronting them
by allowing a network of partially over-lapping local courts (in the
vernacular) to continue, while adding two additional courts for the newcomers,
the High Court (see separate entry) and the Low Court. They then followed the overriding principle
of judgement by one’s peers, supplemented by two corollary principles: that in
disputes between individuals from different strata of society, the case should
be tried before the peers of the weaker (lower) person, and in cases between
individuals from different ethnic groups of the same strata, the case should be
brought before the peers of the defendant.
The practical outcome
of this theoretical approach is that in all matters of family and religious
law, the residents of the crusader states sought resolution from the religious
authorities of their respective religion whether Islam, Judaism, one of the many
forms of Orthodoxy, or before Latin Christian (Catholic) ecclesiastical courts.
In rural areas, furthermore, civil and criminal cases not involving a Frank
were tried before local/native judges in accordance with the laws and customs
predating the First Crusade.
In urban areas,
however, the intermingling of peoples was too great to allow such a simple rule,
and the Cour de la Fond evolved for
the resolution of commercial cases and the Cour
de la Chaine evolved for the resolution of maritime disputes. In each, a
representative of the lord presided over the court as “bailli,” but did not
rule on a case. Rather, the case was tried by six jurors drawn from the same
class of the parties to the dispute. So, for example, in the Cour de la Chaine, the jurors had to be
sailors or merchants. Of these, two were Franks and four natives, a ratio that
clearly favored the Franks on a national scale, but may have roughly reflected
the composition of urban populations because a large portion of new immigrants
were city dwellers, and, correspondingly, a larger portion of the rural
population was native.
However, there
was an exception to the jurisdiction of these court, which again recognized the
diversity of the population: the independent “communes” or urban colonies of
the Italian city states were granted the right rule on cases involving their
own members in accordance to their own laws and before their own courts. Thus
two Venetians would be tried by the laws of Venice, and Pisans by the laws of
Pisa etc. Disputes between members of different communes, however, would be
tried in the courts of the defendant.
During the first
century of the crusader states, however, the communes were a comparatively
small minority and the bulk of the Frankish population was drawn from all
across Western Europe from Norway to Sicily. These residents of the crusader
states were Westerners, whose common language was Latin/French, and making them
subject to the local Syrian courts would have been illogical and unacceptable. Instead, a new court, the Cour des Bourgeois, or Low Court, was created to address criminal and civil cases involving
non-noble Franks that did not fall within the jurisdiction of the commercial or
maritime courts. Although often translated into English as the Lower Court, the Cour de Bourgeois was the only
court for disputes involving burghers or bourgeois residents. The High Court
was not an appellate court; it was
the court for disputes between members of the First Estate or feudal elite, i.e. knights,
nobles, and vassals of the king.
In the Cour de Bourgeois cases were tried
before a “viscount” appointed by the local lord (e.g. the King in royal
domains, the Prince of Galilee in Galilee, the Count of Jaffa in Jaffa and
Ascalon, the Lord of Oultrejourdain, Ibelin, Sidon etc. in their respective
baronies), and twelve jurors. The viscount like the baillis of the other courts
did not have a say in the verdict or sentence but was charged with ensuring due
process, maintaining order in the courtroom, and enforcing the sentences pronounced
by the jurors.
Interestingly,
the various Cour de Bourgeois met
more regularly than the High Court, presumably because they had more business
to conduct given the larger numbers of burgers compared to nobles. Another
striking feature of these courts was the right of the litigants to request
“counsel” from the court. If requested (and it was highly recommended by the
medieval commentators!), the court appointed one of the jurors, who thereafter
did not sit in judgement of the case but became an advocate, much like a
court-appointed lawyer today. Furthermore, although there was not yet a
profession known as “lawyers,” men who gained a reputation for understanding
the law were revered and repeatedly appointed either as jurors or counsellors.
The names of some have come down to us, such as John d’Ibelin, and Philip of
Novare, because they were also legal scholars, who wrote legal tracts about the
laws they were interpreting. There was, however, no such thing as the “prosecution.”
The state as such had not yet assumed the role of pursuing justice and
punishing crime for itself. Instead, someone had to bring a case to trial by
accusing another person of a violation of the law.
Somewhat
alienating to modern sensibilities, trial by combat or some other form of
“test” (fire or water) were the preferred means of determining guilt and
innocence. But this was normal in this period and accepted by litigant and
defendant alike.
Dr. Helena P. Schrader holds a PhD in History.
She is the Chief Editor of the Real Crusades History Blog.
She
is an award-winning novelist and author of numerous books both fiction
and non-fiction. Her three-part biography of Balian d'Ibelin won a total
of 14 literary accolades. Her most recent release is a novel about the
founding of the crusader Kingdom of Cyprus. You can find out more at:
http://crusaderkingdoms.com
A judicial trial, based on a real case, is an important episode in my current work-in-progress, "Defying the Wonder of the World: A Novel of the Sixth Crusade."
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