Adaptations of the Roman Lex Aquilia in the Burgess Assizes of Jerusalem

Chapter 4 Adaptations of the Roman Lex Aquilia in the Burgess Assizes of Jerusalem

Adam M. Bishop

The Assizes of Jerusalem are a collection of legal treatises written by several different authors in the kingdoms of Jerusalem and Cyprus in the thirteenth century. For the most part, they were written by specific authors at specific dates, but one text, the assizes of the cour des bourgeois (or the burgess assizes), was written or compiled by an unknown author. Historians have long wondered who this author/compiler was, whether he was trained in the law, and what sources he may have used. One particular focus of research into the origins of the burgess assizes is the influence of ancient Roman law. According to the historian of crusader legal institutions Joshua Prawer, the Roman influence on the burgess assizes could be due to borrowing from Lo Codi, a twelfth- century Provençal legal text that was itself based on Roman law, and which may have been the source for many chapters of the burgess assizes. It is certainly true that Roman law had an influence on the assizes, but the specific way that it is incorporated into the assizes of the burgess court sug- gests that the author or the compiler of this text may have been a jurist trained in Roman law in Europe, and was not simply copying from Lo Codi or any other medieval legal text. Roman law was used in Jerusalem to deal with situations that were relevant to both Roman and crusader society, but with adaptations and innovations intended to reflect the context of the medieval Latin east. The Roman Lex Aquilia, a third-century bce law dealing with damage to property, can be used to show how the author of the burgess assizes adapted Roman law to reflect the society of thirteenth-century Jerusalem. An examination of the use of Roman law in the burgess assizes may furthermore help us learn more about the identity of the otherwise anonymous author. There are two distinct collections of crusader law: the assizes of the High Court and the assizes of the burgess court.1 Those of the High Court were

1 Scholarship on the two courts and the different sets of assizes dates back to Auguste-Arthur Beugnot’s introductions to the texts published in the Receuil des historiens des croisades, Lois, vols. 1 and 2 (Paris, 1841–1843). The standard works on the laws and institutions of the kingdoms of Jerusalem and Cyprus are Jonathan Riley-Smith, The Feudal Nobility and the Kingdom

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written for the Latin Catholic nobility, and deal with such issues as, among other things, ownership and inheritance of fiefs, services owed to landowners and other “feudal” laws, criminal laws such as murder and assault, and how to plead a case before the court. There are numerous surviving texts of the assizes of the High Court. The earliest is the anonymous Livre au Roi, dating from the early 13th century.2 The other texts were all written later in the 13th century, by members of the Ibelin family or their supporters: the lengthy texts written by John of Ibelin3 and Philip of Novara,4 and smaller collections of assizes written by Geoffrey le Tor5 and James of Ibelin.6 The burgess court had its own set of assizes, written (or compiled) by an anonymous author, also in the mid-13th century.7 The burgess court had jurisdiction over anyone in the kingdom who was not a Catholic aristocrat, including the non-noble western Catholic inhabitants, eastern Christians, Muslims, Jews, merchants, tradesmen, serfs, and slaves; it sometimes also had jurisdiction over the nobility and clergy, if they owned real property that was not attached to a fief or was not held “in alms” by the church. Also under the jurisdiction of the burgess court was the “market court”, which heard commercial cases involving non-Catholics, although serious crimes and any crime committed by a non-Catholic against a Catholic would be heard in the main burgess court. The ultimate origins of the burgess assizes have been the object of study since their publication in the Receuil des historiens des croisades in 1843. Were they derived from similar legal codes in Europe, or were they simply created by the Latin settlers in the east, based on unwritten customs and traditions from

of Jerusalem, 1174–1277 (London, 1973), and Joshua Prawer, Crusader Institutions (Oxford, 1980). The most recent work on the burgess assizes specifically is Marwan Nader, Burgesses and Bur- gess Law in the Latin Kingdoms of Jerusalem and Cyprus (1099–1325) (Aldershot, 2006). Still use- ful, though now superseded by Riley-Smith and Prawer, is John L. La Monte, Feudal Monarchy in the Latin Kingdom of Jerusalem (Cambridge, 1932). 2 Le Livre au roi, ed. Myriam Greilsammer (Paris, 1995). 3 John of Ibelin, Livre des Assises, ed. Peter W. Edbury (Leiden, 2003). 4 Philip of Novara, Le Livre de forme de plait, ed. and trans. Peter W. Edbury (Nicosia, 2009). 5 Geoffrey le Tor, Livre de Geoffroi le Tor, ed. Beugnot, in rhc Lois, vol. 1. 6 James of Ibelin, Livre de Jacques d’Ibelin, ed. Beugnot, in rhc Lois, vol. 1. 7 Les Livres des Assises et des Usages dou Reaume de Jerusalem sive Leges et Instituta Regni Hi- erosolymitani, ed. Édouard H. Kausler (Stuttgart, 1839). There is some disagreement over the date the burgess assizes. Beugnot believed they were written in the twelfth century before the fall of Jerusalem (rhc Lois ii, introduction, xxxvii), while Riley-Smith suggested a date as late as the 1260s (Feudal Nobility, 69). The generally accepted date is sometime in the mid- thirteenth century, probably while Jerusalem was under Frankish control between 1229 and 1244 (Maurice Grandclaude, Étude critique sur les Livres des assises de Jérusalem (Paris, 1932), 66–69; La Monte, Feudal Monarchy, 30; Prawer, Crusader Institutions, 366–367; Nader, Bur- gesses and Burgess Law, 50–53).