Arguably the most fundamental function of any state is the
administration of justice. When a government fails to deliver justice, it loses
its legitimacy and either becomes tyrannical or disintegrates into anarchy.
The legal system in the crusader states was striking both for its diversity and cultural sensitivity. These features undoubtedly contributed to the legitimacy and efficacy of Frankish government in the Levant.
Fundamental to any effective system of justice is acceptance and recognition of the legitimacy of the legal authorities by the population. This is notoriously difficult when the administrators of justice speak a different language, have a different faith, or follow different legal traditions from the legal system’s subjects. As a result, the imposition of law by an invading force is inherently challenging, and wise conquerors have usually been cautious about replacing local law and custom with a new system.
The Kingdom of Jerusalem faced an especially daunting challenge since, from its inception, it was a multi-ethnic, multi-lingual and religiously diverse state. The rulers of the crusader states responded to the challenge by allowing a network of partially overlapping local or “manorial” courts to continue while adding a superstructure of additional courts. These were the High Court (see above) for the feudal elite, the Court of the Bourgeois for the burgesses (sergeants), and two courts for cross-cultural civil cases: the commercial court (‘cour de la fonde’) and the maritime court (‘cour de la chaine’). In addition, the Italian communes had legal jurisdiction over their members, who were subject to the laws and customs of their home cities. Of course, clerics of any religion were tried before their respective religious courts.
The Lesser Courts
In all these courts, the overriding principle was judgement by one’s peers, supplemented by two corollary principles: (1) In disputes between individuals from different strata of society, the case should be tried before peers of the weaker (lower) person, and (2) In cases between individuals from various ethnic groups of the same strata, the case should be brought before the defendant’s peers.
The practical outcome of this theoretical approach was that in virtually all matters of family and religious law, the residents of the crusader states sought resolution from the religious authorities of their respective faiths. In rural areas, civil and criminal cases not involving Franks were tried before local native judges following the laws and customs predating the First Crusade.
In urban areas, however, the intermingling of peoples was too great to allow for such a simple rule, so a commercial court was created to deal with commercial cases between different ethnic and religious groups, and a maritime court handled maritime disputes regardless of the religious or national affiliation of the parties. In each, a representative of the local lord presided over the court as ‘baillie’ but did not pass judgement. Rather, the case was tried by six jurors drawn from the same class as the parties to the dispute. So, in the maritime court, for example, 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 the population engaged in maritime activities.
The significance of these courts, particularly for the Muslim population, was that all social and religious disputes were handled by the local imam. In matters concerning the local feudal lord, Muslims were still usually represented by a Muslim ‘ra’is’ appointed by a Muslim council of elders. Finally, in commercial disputes with non-Muslims, they could turn to the Commercial Court, where they enjoyed the same rights as all other litigants. This is a sharp contrast to the legal status of ‘dhimmis’ in Muslim states. ‘Dhimmis’ were brought before the Qadi, or Islamic judge, who did not recognise the validity of an oath given by a non-Muslim.
Court of the Bourgeois
Other than the Italians, Latin immigrants to the Holy Land who were not members of the feudal elite received justice from the thirty-seven Courts of the Bourgeois. These courts, also referred to as the Lower Courts (as opposed to the High Court), were created to address disputes involving non-noble Franks that did not fall within the jurisdiction of the commercial or maritime courts and were primarily criminal cases.
Cases before the Courts of the Bourgeois were tried before a viscount (see below) appointed by the local lord (e.g., the king in royal domains, the Prince of Galilee in Galilee, etc.) and twelve jurors. Like the baillies of the other courts, the viscount established neither the verdict nor the sentence. Instead, he was charged with ensuring due process, maintaining order in the courtroom and enforcing the sentence pronounced by the jurors. Litigants had the right 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 as either jurors or advocates. There was, however, no such thing as the ‘prosecution’. The state had not yet assumed the role of pursuing justice and punishing crime in its own name. For a case to come to trial, an individual had to bring charges against someone else for violating the law. The Courts of the Bourgeois met more frequently than the High Court, presumably because they had more business to conduct given the larger numbers of burgesses.
Medieval Cyprus followed a similar pattern. For the most part, the Lusignans granted the Greeks and other groups judicial autonomy. One exception to this was that serfs came under the jurisdiction of their respective landlords. In practice, however, the law applied was the ‘custom of the manor’, which was usually inherited from before the Frankish invasion. Furthermore, judgement was by the defendant’s peers — other Greek serfs. As on the mainland, social and religious issues were usually solved by the clergy of the respective religious community, but in Cyprus, this authority was expanded to a de facto comprehensive judicial system for all civil cases between Greeks, i.e., the vast majority of the population. Cyprus also adopted Courts of the Bourgeois for handling commercial and criminal disputes between ethnic groups, while the Cypriot High Court dealt with all disputes between members of the feudal elite. In Cyprus, criminal courts were royal courts.
The bulk of this entry is an excerpt from Dr. Schrader's comprehensive study of the crusader states.
