Download PDF | Marwan Nader - Burgesses and Burgess Law in the Latin Kingdoms of Jerusalem and Cyprus (1099-1325)-Ashgate Pub Co (2006).
238 Pages
Introduction
Put simply, burgesses were Latin non-feudatories who arrived in the Holy Land either as crusaders, pilgrims, or colonists, and settled in the cities or rural villages. They appear in sources of the twelfth and thirteenth centuries as merchants, market tradesmen, craftsmen, artisans, investors, money-changers, translators, fishermen and farmers. To date, however, no satisfactory explanation has been given as to how these people, who originated from diverse regions of Europe, and were accustomed to their own laws and institutions, were able to organize themselves into a class whose status, as legally defined in royal, seigneurial and ecclesiastical domains, set them apart from native non-Latin Christians and Muslims.
It has not been sufficiently determined what contributions were made by burgesses — the largest non-native population in the kingdom — to the formation of the Latin states. What position early on did burgess representatives assume in the decision-making assemblies convened by the monarch? Moreover, what developments relating to burgess legislation and jurisdiction took place in the twelfth century? Inevitably, a study concerned with finding answers to such questions draws comparisons between eastern burgesses and their western counterparts — particularly those in France about whom more is known. It considers whether the basic burgess laws and institutions of the kingdom of Jerusalem originated in certain regions of Europe, and ascertains the extent to which jurisdictional developments in the East mirrored those in the West. It also highlights any significant differences and emphasizes the unique elements of burgess society in the Latin states.
The starting point of this study is Europe in the second half of the eleventh century. The decades preceding the First Crusade were marked by significant demographic changes. The population of western Europe was growing at a faster rate than ever before, cities were flourishing, and rural settlements expanding into hitherto unpopulated regions. So too discernible was the emerging and increasingly privileged class of freemen. In the latter part of the eleventh century, the commercial and jurisdictional rights which they enjoyed may be perceived as manifestation of an emerging concept of ‘public power’.' The principles of public power, namely the degree of authority a lord, or seigneur justicier, could yield, and the extent to which a community could administer its own affairs, elect its own representatives, and judge by peers the misdemeanours of its members, occupied the minds of lawmakers and legal writers alike. Issues concerning person and property were also recurring in charters of liberties of this period. Documents, in general, served as written proof of the communal rights which lords bestowed on their tenants, especially as traditionally practised customary laws were rarely codified.
The principles of public power may be further linked to the growth of transEuropean migration in the eleventh century. I return to this subject at a later stage when assessing the impact medieval migratory patterns may have had on the creation of the kingdom of Jerusalem. One suggestion is that crusading extended migration to the Holy Land. But is there evidence to substantiate such a theory? An equally relevant question to ask is what persuaded non-feudatories to join the crusade armies of 1096. Were they driven by materialism or spiritual motivation? Were they recruited at centres of preaching as pilgrim-soldiers, or did they join the crusade movement as migrating settlers? Were they drawn from the ancient cities where preachers such as Peter the Hermit actively sought followers, or predominantly from the rural villages and especially the burgi? Though there has been much written on the incentives of the nobility, the motives of the nonknightly classes have been less scrutinized. This is somewhat surprising bearing in mind the many references in contemporary chronicles and annals to their involvement in crusading.
It is generally agreed that the First Crusade evolved into a popular movement. Indeed, the majority of people who participated as soldiers or non-combatants belonged to the classes of serfs or freemen. The perception is that all classes of people responded enthusiastically to the widely preached crusade message. Yet, regardless of this fact, the mass appeal of the enterprise, and the involvement of Latin non-feudatories in the foundation of the kingdom of Jerusalem, has been largely ignored. Understandably, most studies have focused on the knightly crusade and the establishment of a feudal system in the Latin states of Palestine and Syria, in particular the constitutional and political role of the nobility during almost two hundred years of the kingdom’s existence. By comparison, no comprehensive history of non-feudal crusading and eastern burgess settlement has been written. The objective of this present study is to address this historical imbalance.
The summer of 1097 marked the arrival of the first crusaders in Asia Minor en masse, and the capture of Antioch on 3 June 1098, while important strategically, further represented the beginning of significant European urban settlement in the East. Jerusalem fell to the crusaders on 15 July 1099. The goal to liberate the Holy City, first preached by Pope Urban II at Clermont almost four years earlier, had been achieved, and many crusaders their vows fulfilled returned home if they had the means to do so.’ Others, however, remained. They had set off from Europe either as serfs who had been granted permission to go on crusade by their lords, or as free inhabitants who had been recruited at centres of preaching. To contemporary chroniclers they had with their enthusiasm and fervour swelled the ranks of the crusade armies. Significantly, at some point in the East — and possibly during the actual crusade campaign — all members of this class of non-nobles, who had served the cause of crusade so ably and loyally, were granted free and equal status. Hierarchically, they formed themselves into a new ‘middle class’ that stood between the European nobility and the lower indigenous peoples.
Joshua Prawer was particularly interested in the origins of burgesses, arguing that the class of burgenses in Palestine and Syria originated from among the pedites of the First Crusade. His opinion was that these pedites were peasants who arrived in Palestine from European villages situated in centres of crusade recruitment. They were not, he maintained, city-dwellers as the population of western towns at the end of the eleventh century was very small.’ I would agree the pedites were some of the first burgess settlers in the East, but Prawer’s argument that they were peasants recruited from villages in Europe is only partially accurate. First, cities were very important centres of recruitment for crusade preachers who could expect to attract large local audiences to their oratories, apart from the men and women who were drawn from the surrounding countryside. Secondly, the remark that all pedites were peasants is rather sweeping and fails to distinguish between crusade serfs and freemen — including those presumably of burgess status — who headed East. It is also important to understand that in western Europe in the latter part of the eleventh century, there was significant growth in the creation of rural burgi and castra. These settlements of freemen were broadly situated within the catchment areas of crusade preaching.
Prawer further addressed the issue of whether the first crusade represented the beginning of a large-scale movement of European peoples to the Levant. He theorised that migration in the twelfth century was mainly from regions in southern France.* More recently, this supposed influx of non-noble Latin settlers into the kingdom of Jerusalem, was viewed by Ronnie Ellenblum as part of a more general process of migration in contemporary Europe. In the ‘Frankish castra, as in the European ones,’ he has written, ‘heterogeneous societies, consisting of settlers who had arrived from distant places, were created’. His opinion was that the kingdom of Jerusalem like southern France, Spain or Sicily, was an attractive destination to those wishing to settle there and take advantage of whatever opportunities it had to offer. In this context, the class of burgesses did not necessarily originate from crusaders, but rather from settlers in ‘search for places of residence which would give them better social status and better economic conditions’. Initial confinement of Europeans to the urban conglomerations for reasons of security was followed by widespread rural settlement. Ellenblum’s research convinced him that these places of settlement — particularly in south-eastern Transjordan and western and lower Galilee — were in districts populated by a majority of native Christians.°
Favourable economic conditions in the villages, including the freedom to buy and sell property, elevated the status of Latins above that of Muslims, Jews and native Christians (Orthodox, Monothelite Maronites, and Monophysite Jacobites) who as villeins could be tied to the land. However, a premise of this study is that European mass migration to the kingdom of Jerusalem was unlikely to have taken place. Many parts of the crusader states, and in particular the south-eastern territories around Muslim Ascalon, were not conducive to Latin settlement. It is difficult to believe that in the first decade of the twelfth century large numbers of people would have chosen to migrate to the Levant when equally favourable conditions for settlement and commerce existed in burgi and castra in various regions of Europe.
Once the crusaders established some form of military control over their newlyacquired cities in the East, the formation of a new middle class was a requisite tool of occupation. The forging of a new system of burgess jurisdiction strengthened the social standing of Latin settlers above natives who had limited rights. But the precise contribution made by burgesses to the process of settlement has often been misinterpreted.’ Dodu viewed the creation of the burgess class by the kings of Jerusalem as a counter-balance to the growing powers of the feudatories.® This is a theory which seems to place the formation of a burgess class at a much later date than the one proposed in this study. In my opinion burgess communities, laws and juridical institutions were established from the first years of settlement at a time when the class of feudatories, still recovering from a crusade which had severely depleted its ranks, was incapable of perpetuating the kingdom’s existence merely as an occupying force. As lords and landowners they required the communities of burgesses to administer their cities and villages and the economies of their domains.
There have been other notable theories regarding eastern burgesses. Cahen, writing about burgesses in the principality of Antioch, suggested that the class of Latin non-feudatories had naturally evolved because the indigenous peoples of the principality were already organised into communities.’ I would agree to an extent with this idea, but would not propose that this development was natural or organic in any way, certainly not in the kingdom of Jerusalem. There was rather a planned and deliberate process of settlement from the very beginning. The burgess court of justice, for instance, effectively discriminated between Europeans and nonEuropeans, and between Latin Christians and non-Latin Christians. The reinforcement of essential differences, particularly religious ones, ensured that the indigenous Christians and Muslims who did indeed have their own courts, could not qualify as subjects of burgess jurisdiction. And in a similar way, the alienation of property set aside ostensibly for possession by burgesses was strictly regulated.
Attention has been drawn to the fact that the class of burgesses never developed the independence associated with those who lived in European communes. Jean Richard emphasised the point that whereas members of a western commune swore fidelity to the commune itself, burgesses in the kingdom of Jerusalem ‘never ceased to be their lords’ men’. Depending on where in the kingdom they resided, they swore fealty to the king, a secular lord or an ecclesiastical institution with rights of jurisdiction.'° Further interest in the organisation of burgesses led Hans Mayer to suggest the class was founded on the principle that a man should be judged by his peers.'' It was a principle widely practised in Europe in the eleventh century, and formed the bedrock of jurisdiction in the kingdom of Jerusalem where the king and his tenants-in-chief were increasingly willing for their burgess communities to judge themselves in matters of criminal and civil law.
I accept Richard and Mayer’s opinions because it would be a mistake to underestimate the rate of development of burgess justice in the early twelfth century. In recent years the debate surrounding the existence of the Letres dou Sepulcre — the written general legislation of the kingdom supposedly lost after the fall of Jerusalem to Saladin (1187)'* — has led some historians to question the veracity of the thirteenthcentury jurists who ascribed well-formed courts of burgesses with wide-ranging legal competence to the reign of Godfrey of Bouillon (1099-1100), and, therefore, to underrate the achievements of burgess jurisdiction and legislation. The jurists and in particular John of Ibelin should be read with a modicum of scepticism, but their histories should not be dismissed as complete fabrication.
Legislation in the kingdom was formulated in different ways, either by means of common consensus, as at the general assemblies which established secular or ecclesiastical laws; by the king in royal domain or the seigneurs justiciers in their lordships; by Church institutions in the rural Latin settlements over which they had jurisdiction; or by jurors of Cours des Bourgeois who set precedents in their judgement of test cases. In basic terms, laws enacted by rulers were known as assises, dreit or leis.'* In the twelfth century some royal legislation was definitely written down. For instance, copies of the twenty-five decrees issued at the Council of Nablus (1120) were, according to William of Tyre, preserved in the archives of many churches.'* But it has been argued that law was based not so much on any legislative work undertaken by the kings of Jerusalem, as on the precedents set by the Jerusalem courts.'° Certainly, in Acre in the second half of the thirteenth century, the Cour des Bourgeois kept a register of the judgements which it made and possibly the precedents it set.'° Notably, in an oath sworn by jurors in the Cour des Bourgeois in Nicosia, they promised to resolve cases according to the assises of the kingdoms of Jerusalem and Cyprus where such laws existed. Otherwise, they were to reach decisions reasonably based on their good judgement.'”
In the sources burgess laws were occasionally referred to as ‘customs’. The distinction between costumes and assises is not fully clear,'* although in some twelfth-century charters customs were specifically associated with a city or village where they were in common usage. This study will demonstrate that in spite of local differences there was uniformity at least between certain burgess laws in the kingdom of Jerusalem. The evidence illustrates how similar, for example, were laws of tenancy and basic court procedure throughout the land. There is, nevertheless, little evidence to support La Monte’s view that many of the laws of the kingdom were based on the ‘customs of eleventh century Europe as brought to the East by the men of the first crusade’,'? even though there were some similarities in the twelfth and thirteenth centuries between legislation in the Latin East and western Europe. Cahen highlighted the influence of Norman law on aspects of burgess jurisdiction in the principality of Antioch,” and Prawer argued that the ‘Livre de la Cour des Bourgeois’ of Acre incorporated passages from a twelfth-century law-book of Provence, Lo Codi.*' This though seems to contradict his other argument that borgesie tenure and the legal procedures which shaped it originated in the north of Europe.”
As regards the status of eastern Latin non-feudatories, previous definitions have followed certain logic in arguing that burgesses were characterised solely by their location — whether they were urban or rural settlers — by their rights as tenants, or by their legal standing. None of these definitions, however, is sufficient. Cahen argued that to be a burgess in the principality of Antioch ‘il faut posséder un immeuble, une “bourgeoisie”’.” This definition could not be applied to the kingdoms of Jerusalem or Cyprus where knights held borgesies, as well as native Christians who, because they were not Latins, did not belong to the class of burgesses. Prawer, on the other hand, defined the status of a burgess as a Frank who did not belong to the class of feudatories.
But the fact that burgesses were not fief-holders was only one aspect of their standing. Prawer further argued that the establishment of Cours des Bourgeois in the early twelfth century defined the legal standing of the class of non-noble Latin freemen,” but it ought to be remembered that these courts also exercised justice over non-Latins in serious cases including high justice. So merely being subject to this court did not make a person a burgess. It is my contention that the status of burgesses who lived among a predominantly non-Latin population in royal and seigneurial cities and in the villes neuves, was defined by a combination of three factors: religion, jurisdiction and property. Burgesses were Latin Christian men or women of European or native origin, tenants of borgesies, and subject to Cours des Bourgeois in civil and criminal matters, or in certain cases Church courts vested with authority over them. Nothing less than all of these characteristics combined defined a person as a burgess.
As in Europe at this time, the generic term burgenses was denotative not just of residence in a city or a burgus, but of all types of settlements including merchant quarters. Interestingly, the earliest reference to burgesses as a distinct class is a document of 1110.*° Other charters are more revealing. The charter of 1123 granting the Venetians a quarter in Acre, described burgenses as persons who were ‘in uico et domibus Venetorum habitantes’.”’ Possession of property was a prerequisite as all those who possessed houses were expected to swear an oath of fealty to the commune and the doge of Venice.** When in 1187 Conrad of Montferrat confirmed Pisan possessions and jurisdiction in their quarter in Tyre, a distinction was drawn between merchants and burgesses. The Pisans were granted a court over all their compatriots in their quarter ‘whether merchants (scapuli)” or burgesses’.*° And in Cyprus in the thirteenth century a royal decree concerning rules of marriage also distinguished between ‘borgois’ and ‘marchant’.*!
One of the criteria which defined burgess status was property. Burgesses were tenants of borgesies, usually houses, curtilages, shops or arable lands in the cities and rural settlements, but, as we shall see, this did not exempt other non-burgesses from holding such tenancies. A borgesie could be alienated or transferred temporarily, and its tenant owed some kind of service including, usually, the annual payment of cens or rente. Previous studies of this type of property have not, generally-speaking, distinguished between the different types of borgesie. Apart from houses and plots of arable land, there were also whole villages which were borgesies.
And the heritage de fié, another type of city borgesie which formed part of a fief, has been overlooked by historians. Prawer argued that burgage-tenure was a ‘European institution imported wholesale’ into the kingdom of Jerusalem. He stressed the alienability of borgesies which could be sold, exchanged, donated and pledged by tenants, and contended that the yearly rent paid by tenants to their lords was only nominal.*” There is, however, a counter-argument demonstrating that payment was not merely symbolic but proportional to the size and value of a borgesie. The rents received by secular lords and ecclesiastical institutions from the lease of their borgesies in perpetuity and for a short-term were an important source of income. On the subject of alienation, it was suggested by Prawer that a borgesie could be alienated in private, and that the intervention of a Cour des Bourgeois was simply to publicise the transfer of property.
He also asserted that a borgesie could be granted ‘in alms’ to an ecclesiastical institution privately. Again, there are grounds to dispute this theory. Evidence does show that the alienation of a borgesie had to be authorised by the court under whose jurisdiction the property was located, and that a donor required the permission of a Cour des Bourgeois when making an eleemosynary donation. The charitable gift ‘in alms’ modified the legal standing of a borgesie by removing it from royal or seigneurial jurisdiction and placing it under the authority of an ecclesiastical court. Subsequently, its tenant was subject to the laws of burgess tenancy as exercised by this legal body. The military orders, particularly the Hospitallers, received many borgesies by way of charitable donations.
Prawer maintained that the first properties in the kingdom were created through the ‘law of conquest’, this being the right of a person to claim ownership of a property he acquired when a city was captured. Arbitrary seizure of land, referred to in contemporary accounts of Latin conquest and settlement, was, he believed, the basis of allods or freeholds.** This contention accorded with his belief that the occupation of territory, which was to become the kingdom of Jerusalem, was haphazard. Prawer’s interpretation has been challenged by Jonathan Riley-Smith who views settlement in Palestine and Syria as much more ordered; the encompassing hierarchies of jurisdiction and tenancy did not allow for the existence of allodia.
Mayer accepts both these theories as plausible, arguing that while, generally-speaking, Latin settlement was a systematic and ordered affair, this did not rule out arbitrary seizure of land.*” It is my belief that allodial property probably did not exist in the kingdoms of Jerusalem and Cyprus, and that the possessor of a franc borgesie, which was exempted from the payment of rent but remained subject to a Cour des Bourgeois when being alienated, was not the tenant of a freehold.
The other characteristic which defined a burgess was that he came under the jurisdiction of a Cour des Bourgeois. The court was the legal, administrative and financial arm of a lord. The composition of the Cour des Bourgeois, some of its legal procedures and its authority over transactions has been the subject of study,** although not enough attention has been paid to its competence in other matters such as marriage, inheritance, illegitimacy, debt — including the pledging of borgesies — and manumission. In addition, while emphasis has been placed on the powers of royal and seigneurial Cours des Bourgeois, the authority of other courts with jurisdiction over burgesses and borgesies has been largely ignored.
All in all, historians have defined the role of Cours des Bourgeois without demonstrating fully the complexities of burgess jurisdiction in the kingdom of Jerusalem. We should avoid looking for clues as to the development of the court of burgesses in the usual places. There is strong evidence that in the first decades of the twelfth century, the secular courts which were established by ecclesiastical institutions and the ‘customs’ they formulated, influenced generally the way borgesies were leased, alienated and transacted. When tracing the history of jurisdiction in the twelfth century, consideration should be given to these Church courts which though concerned with burgess matters were in their composition and competence fundamentally different to the Cours des Bourgeois.
The objective of this book is to define the status of burgesses in Palestine, Syria and Cyprus in the twelfth, thirteenth and fourteenth centuries (1099-1325). My intention is to illustrate as precisely as possible the subtle social gradation which was at work, and part of this investigation involves discounting factors which I believe did not affect status. I do not think, for instance, that the status of burgess was reserved for wealthier individuals — status was based principally on legal and not economic stratification. Neither is there sufficient evidence to contend that as in some French cities status was conditional on residence for a minimum period of time, for example a year and a day.” I would further dispute the contention that only the residents of a city or a village which was fortified or resembled a burgus came to be described as burgenses.
I earlier explained how in western Europe the etymological link between burgus and burgensis was gradually loosened to the point that burgenses became a general description of inhabitants of all types of settlements. A final issue concerns the theory that status was determined by selfperception.*” But are we to believe that in eastern Latin society where social stratification was rigidly based on religion, jurisdiction and property-possession, burgess status was ultimately no more than a matter of choice or self-designation? This study proves that there are no grounds for such an argument.
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