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 called le 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.'