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CHAPTER 1

Two Inquiry Procedures

Perhaps the best-known description of a ritualized inquiry procedure regarding unwritten law appears in the fourteenth-century Weistum of villages belonging to the cloister of Engelberg in Aargau. Jacob Grimm placed this account at the beginning of his collection of Weistümer. The abbot of Engelberg was to appear before the village court in the company of a chaplain, his provost, the parish priest of the village of Stans, and a knight. In addition, he was to bring along a hunting falcon, a dog trained for hunting birds, and two greyhounds. The wife of the maior, the local manorial official, was to walk toward this retinue, holding in one hand a chicken for the falcon and in the other a loaf of bread for the dogs. Then the villagers were to host the lord and his retinue.¹ The next day, the lord was to gather the peasants around him and ask them what rights were due to him. The peasants were to answer him as they had every year before. Descriptions like this one portray rituals for passing down the law as miniature versions of “royal entries” (joyeuses entrées) of the period, the ceremonial visitations of princes to cities, which had their own rich symbolic language.² Laws, however, were also passed down in everyday life in quite unspectacular ways. Unwritten rules were invoked by neighbors in conflict; men discussed them in the tavern, mothers impressed them on their children, and longtime residents brought them to the attention of newcomers.³

It is in the nature of unwritten norms that they can never be “looked up” but rather must be defined, updated, and mediated through communicative processes. This ongoing discourse about the law doubtless forms an important background to more strongly formalized procedures. At the same time, these also require a break from everyday communication practices; they do not follow the form of conversations or arguments but rather of an inquiry, or even of actual interrogation.⁴ This common tendency points to ever more strongly formalized procedures for the establishment of law in the course of the late Middle Ages.

In some cases, but by no means always, the results of such procedures were written down. Among the best documented types of inquiry are two distinct procedures: witness depositions and law declarations (Rechtsweisungen) from manorial courts. These are the main subjects of this chapter, and so I will define them here briefly. Witness deposition procedures were often carried out by regional courts and arbitrating tribunals. Those conducting the depositions could thus investigate the disputed legal regulations before reaching a verdict in a specific case. Often lordship rights in a broad sense were subject to examination; by the end of the Middle Ages, rights regarding inheritance as well as civil and procedural law were increasingly examined as well. In the course of a deposition, several experts with different lordship affiliations were consulted as witnesses. The procedure was somewhat similar to witness examinations in civil or criminal fact-finding inquiries, as indicated by the fact that both procedures were often described with the same terms in the late Middle Ages: in Latin as informatio or inquisitio, in French as enquête, and in German as Kundschaft. For the purposes of this study, this type of procedure will be referred to as a “witness deposition.”

Law declarations were, by contrast, procedures carried out by the courts of local lordships. These courts are referred to as Hofgerichte or Landtage in German, and as plaids généraux in French; throughout this study, I refer to them as “manorial courts.” In these assemblies (which ideally were held regularly), representatives of local dependents and of their lordship came together to regulate local matters and hold court. This could also be the occasion for the solemn promulgation of a whole series of local laws that related to the claims of the lordship, such as legislative authority and dues, but that also dealt with the economic organization and communal life of the village. In the late Middle Ages, these activities were called offnen or weisen, from which derive the terms Offnungen and Weistümer (in French, plaicts) for the documents they produced.⁵ In this study, I use the verb “to declare” to describe the action and the nouns “declaration” or “declaration procedure” to describe the ceremony or venue in which it took place, while keeping the German term Weistum to refer to the document such an activity produced.

This chapter discusses the development of these methods of inquiry. (The practices of recording—or fabricating—their results in writing will be the topic of Chapters 3 and 4.) Investigating the methods by which witness depositions and law declarations were conducted is not simply a question of researching the history of legal procedures. It is much more important to explain their social and cultural contexts. This avenue leads to questions about the situations in which the procedures were employed and about the possibilities for participation they offered to different groups. Moreover, the ways and means by which law was verified reveal tacit assumptions about the grounds for validity and changeability. Investigating the verification of law makes it possible to reexamine commonly held views about how unwritten law in the Middle Ages was equated with traditional ways of behaving, justified by its age, or considered to be the expression of one of many regional popular conceptions.⁶

The two types of inquiry are dealt with sequentially in this chapter, with two sections being devoted to each of them. The first two sections deal with the heretofore only patchily examined witness depositions and argue for the distinctive change this type of inquiry underwent in the course of the late Middle Ages.⁷ During the decades around 1300, deposition inquiries began to rely more heavily on the model of witness examinations in civil and inquisitorial procedures in church courts, and therefore shifted their focus from forming a consensus among local notables to establishing facts. A second rupture occurred around 1400 as the courts of individual power complexes developed their own procedural variations as a way to define legal customs more clearly as elements of the legal order of larger geographic regions. The second two sections are concerned with declaration procedures in manorial courts. Here the main problem is the relationship between oral procedures and the written production of the Weistümer, which began to increase only in the fourteenth century. The research on declaration procedures in manorial courts relies mainly on Weistümer⁸—an approach that is as obvious as it is problematic. On the one hand, Weistümer claim to reproduce oral legal declarations more authentically than any other genre of document. On the other hand, precisely this claim to representation places the documents under the suspicion of recording oral legal declarations in stylized form. Such stylization can be examined through the use of court decisions and deposition records, for it is here that declaration procedures, their participants, and their courses of action are described from other perspectives.

From Consensus Formation to Fact-Finding

Before taking up the discussion of changes in witness deposition procedures, a few remarks must be made concerning who actually conducted the witness depositions. Only local manorial courts had declaration procedures at their disposal, but they, along with church courts at all levels and the regional courts of great nobles or communal lordships, initiated witness depositions. Furthermore, unlike declarations, witness depositions were also used outside of court proceedings. Three basic types can be distinguished, according to their basic arrangements. The first type consisted of examinations that the court conducted at its own initiative, in which examiners asked a series of witnesses the same set of questions about the laws involved before they pronounced a decision in a case.⁹ In the second type, the court conducted a separate deposition for each of the two parties in the dispute, which could propose the witnesses to be consulted and the questions to be put to them.¹⁰ In depositions of the third type, courts were not directly involved. Instead, ecclesiastical and lay holders of lordship commissioned someone to conduct a deposition about the rights they claimed. In the documents thus produced, the one who commissioned the deposition sought to legitimate his claims in light of legal and extralegal forms of conflict negotiation.¹¹ These three types coexisted during virtually the entire chronological period under study here, with the exception that the second type is attested only from the beginning of the fourteenth century onward. The deposition types were all fundamentally subject to the same procedural developments that will be addressed in the discussion that follows.

Consensus-Oriented Procedures of the Thirteenth Century

The oldest deposition procedures in the region under study are from the beginning of the thirteenth century. They exhibit a marked similarity to the enquêtes par turbe that spread through the kingdom of France at the same time.¹² In order to clarify disputed legal regulations, approximately a dozen witnesses were summoned. These witnesses conferred with one another and formulated a collective, definitive statement of the regulation to be defined. This procedure was used, for example, to clarify regulations for the use of woods and meadows,¹³ lordship and jurisdiction rights,¹⁴ claims to taxes and dues,¹⁵ and rights of patronage over churches.¹⁶ The consultations followed the framework of a court or arbitration procedure, and thus their results were not recorded in a separate document but rather were included in the records themselves, which the court issued along with its ruling. Usually the names of the consulted witnesses were included, but not what each individual had said. Instead, the scribe recorded the final result at which the group of witnesses had arrived together.

In many cases, the rule defined by the witnesses applied so specifically to the case in question that their statement already anticipated the decision of the court. An example of this is provided by the official court decision charter recording an arbitration hearing that was adjudicated by members of the lay and ecclesiastical elite of the Bernese Oberland in 1239. This panel decided a dispute between the cloister of Interlaken and the knight Heinrich von Wimmis over the regulations governing the use of a fish pond. The court record describes how the disputants together swore in and consulted ten specifically named witnesses from the region. The conclusion of their statement is introduced by the words “All of those sworn in said …” (“Hii omnes jurati dixerunt …”) and appears to be the verdict itself, which is followed only by the closing formula in the records. Numerous records of the thirteenth century follow this pattern. The remarks of the adjudicating officials are preceded by “from the account of [there follows the list of witnesses] I discovered” (“… ab ipsis relatione cognovi …”); “we established through reliable witnesses that …” (“… invenimus per testes fideidignos quod…”); or a remark that the decision was approved “by the advice” (“de consilio”) of witnesses.¹⁷

Although the regulation being stated was contested between the parties, and the witnesses often had to take an oath to tell the truth, the records give scarcely any details about how the witnesses justified their statements. They neither say that it was according to old or godly regulations nor list examples of the regulations being followed on previous occasions. It was virtually impossible to disprove statements made in this way. How the witnesses arrived at their collective statements doubtless varied greatly, and we have only fragmented evidence of the procedures. For German-speaking regions there are a few examples in which seven witnesses agreed on a statement and seven other witnesses unanimously swore to its correctness.¹⁸ An arbitration record from 1266 states that a dispute could be decided through a witness deposition only if its findings were unambiguous.¹⁹ In contrast, a document of the canon chapter of Lausanne from 1236 states that in the case of contradictory answers, whichever rule can be agreed on by the majority of consulted witnesses should be followed.²⁰ Despite all the differences in the details, this type of procedure had one consistent feature: in practice, it relied on the idea that the court relinquished the delineation of valid laws to the deliberations of the group of witnesses.

Such procedures are reminiscent of the jury trials of the early Middle Ages. Janet Nelson said of these, in a summary of Karl Kroeschell’s observation, “Law in the early Middle Ages was what experienced men declared to be and used as the law.”²¹ Unlike the case in jury trials, valid law in these instances was defined by people who were explicitly identified as witnesses and thus were clearly differentiated from the actual members of the court.²² Courts delegated to such groups the duty of defining the applicable rules in a dispute and thereby relinquished to them a great deal of their discretionary authority.

In contrast to the declarations of manorial courts, it was not the dependents of a particular lordship who participated in such witness depositions but rather mostly high-ranking persons with noble or knightly titles. A dispute over jurisdiction in the region of Emmental in 1236 was decided by an arbitration panel that included two priests and five knights. They consulted as witnesses around fourteen men for whom no titles were given, but also four other priests and eight other knights.²³ In the witness deposition from 1263 about the causes for which the Cluniac priory of Romainmôtier could levy special fees (aides) on the inhabitants of the village of the same name, they consulted, among others, two free nobles (Edelfreie) and two knights, as well as two priests, a deacon, and the priors of no fewer than four cloisters in the area.²⁴ Generally, clerics appear with similar frequency as witnesses in legal witness depositions of the thirteenth century.²⁵ The prominence of the witnesses consulted indicates that the witness deposition procedures of the thirteenth century were aimed not least at involving a wide circle of ecclesiastical and lay notables of the area in the process of delineating local law.

Changes around 1300

There were countless short-lived experiments with new ways of conducting witness inquiries about unwritten law, often tailored to a specific occasion. But apart from this, a substantial change took place between 1270 and 1300 that modeled proceedings increasingly on the principles of Roman-canonical procedure. In the new form of inquiry, the old procedure was fragmented in three ways. First, court inquiries were increasingly separated both temporally and spatially from the actual court hearings. The judges appointed commissioners, who consulted witnesses in their places of residence. Second, the collectivity of witnesses was dissolved. Instead of meeting together, the witnesses were now each sworn in individually and consulted separately from the others (“secrete”) in individual interrogations. Third, the commissioners no longer asked the witnesses only a few direct questions about declaring the disputed legal regulations but rather divided the subject of the examination into separate questions or articles. The results of the consultation thus no longer constituted a single formulated statement on which the witnesses had agreed, but rather several statements that could diverge more or less from one another.

An early example of the third change and the shift to an inquiry that included more separate questions is a record created in 1296 at the order of the counts of Savoy. They wished to clarify their lordship relationships around Lake Geneva, where they had founded the town of Morges a few decades before. In fact, the first question concerned the overall legal situation for which the inquiry sought evidence, namely that the House of Savoy had direct lordship (dominium directum) over the area. The witnesses, however, had to answer additional questions in their individual interrogations. The second question was whether the area belonged to the castle Vufflens; the third concerned the exact legal form of this affiliation and whether the city lay within the seynoria of Vufflens. Finally, the witnesses had to specify the nature of the Savoyard claim to Vufflens and answer whether this lordship was a tenure that could be bestowed on local nobles and which was required to be regularly renewed.²⁶

Such questions could be multiplied almost endlessly. An inquiry about the rights to use the forest on the shores of Lake Brienz likewise contains four questions.²⁷ This trend was taken even further in a witness deposition from 1312 concerning the right of presentation to the church of Hilterfingen, which is composed of no fewer than twenty-seven separate questions or articuli.²⁸ The first and the last questions on the list would be asked during most later witness depositions: the witnesses had to state their personal information (age, place of residence, and lordship affiliation) and give information about the representativeness of their statements: they were to confirm that these facts were public (manifestum) and well-known (notorium), that they reflected common talk (vox et fama). In such procedures, the witnesses were no longer required merely to pronounce lordship rights but also to justify them.

During this time articuli that were asked directly on normative statements were noticeably pushed to the margins and in the end disappeared entirely. A late and accordingly significant example is provided by a witness deposition from 1397. It concerns a dispute between the lord of Oron and the bishop of Lausanne. Under debate was the boundary between the jurisdictions of the two lords. The questions no longer required simply an explicit description of this boundary.²⁹ Instead, the witnesses were required to recall events such as imprisonments, executions, and confiscations by officials, which could indicate the regular practice of lordship rights in the contested area. Large parts of the witness statements were concerned with a rather crude indicator of the practice of lordship rights—the right to hunt and to claim the skins of dead animals. The deposition contains scrupulously exact statements about when, where, and by whom a dead animal had its skin removed and taken to the castle of one of the two lords. Numerous witnesses recounted their memories of the price paid for the hide of a brown horse that had broken its leg on the village bridge.³⁰ The lord of Oron did not want to keep the hide of an ox himself and sold it to the person who brought it in for three pennies.³¹ More to the taste of the lord was the boar’s head (mentioned almost as often) with which a peasant named Leysin dutifully came and knocked on the castle door.³² Such a method of inquiry shows the way in which unwritten legal rules had a quasi-objective existence before their definition in court procedures; they were applied in everyday activities and thus could be ascertained in the same way as facts.

This type of procedure produced the witness deposition records that provide such a detailed insight into the daily practice of lordship. Indeed, when the witnesses on occasion formulated actual rules, they now clothed even these in facts. They thereby claimed not to have articulated the rule themselves. They described bygone occasions that allowed them to place a normative statement in the mouth of a third person as a quotation. Such statements aimed to recount everyday speech about the law and to identify the knowledge of the cited rule as a product of everyday activities.³³ In a witness deposition from 1437 about a wine crop claim advanced by the lords of Blonay, one witness remembered how his sister had been married in the territory of Blonay. He went there to help her with the wine harvest. In the evenings, he was appalled to see that officials of the local lord came to take away part of the painstakingly gathered crop. He asked his sister and—perhaps because he could not believe her—also his brother-in-law how the officials were able to do this. Both explained to him the right of the lord, which he now repeated back to the commissioner.³⁴ The delineation of valid law appears here as a problem of ascertaining facts about the daily activities and obedience of the people.

Whose Truth?

As a consequence of the new functions of witnesses, their number and social status changed. While in the thirteenth century there were seldom many more than a dozen witnesses included in a witness deposition procedure, the commissioners of the fourteenth century more often aimed at numbers of around forty. This is in accordance with the maximum number of witnesses that a party in a canonical civil procedure was allowed to call.³⁵ Now more people were consulted whom the documents described as “peasants,”³⁶ while often a village priest was the highest-ranking witness.³⁷ However, by no means did all the “peasants” who were interrogated belong to the lowest social classes. Many of them held lower manorial offices or were tithe tenants, and are therefore best described as the peasant ruling class.³⁸

Significantly, the first examples of witness deposition records that divided the disputed question into many articles also included statements from numerous specialists in the learned law who had studied at the universities of northern Italy.³⁹ Under their influence, forms of inquiry modeled on the example of Roman-canonical civil, defamation, or inquisition procedures—which had spread north from southern Europe across the Alps in the middle of the thirteenth century—found their way into witness depositions about local legal customs. In such processes, the witnesses had to declare assent to or denial of the assertions expressed in individual points or articuli.⁴⁰ According to the same process, the latitude given to those questioned in procedures for law-finding was restricted to assenting to or contradicting a series of points about the alleged legal situation.

The inquiries thus modeled themselves on the Roman-canonical process of a distinctive division of labor among the witnesses, who reported mere perceptions, and the judge, who drew legal conclusions from them.⁴¹ The methods for establishing laws and facts were so similar that in some cases they blend into each other.⁴² In the course of the fourteenth century, the new procedure for the production of legal documents was accepted in rural areas throughout the entire area in question, as well as by such holders of communal lordship as Zürich, Bern, and Luzern. In the sixteenth century these procedures became the standard for the supreme court of the Holy Roman Empire, the Imperial Chamber Court (Reichskammergericht), which pronounced judgment on and thus sometimes decided which legal customs had validity in the relevant regions.⁴³ The understanding of legal custom was fundamentally altered by the adoption of this procedure. The truth of the witnesses’ statements no longer was authenticated simply through their oath, their reliability as persons, and their consensus, but rather was accessed through the comparison of details in the statements of different witnesses. The objects of such hearings were no longer legal rules. In fact, the impetus behind such procedures was the assumption that legal rules could be ascertained, proven, and known in the same way as facts.

Innovations of the Chancelleries

In the fifteenth century the greater territorial lordships began to conduct witness deposition hearings that no longer investigated merely local legal relations but rather aimed to ascertain rules that could claim validity in their entire territories, or at any rate in large subdivisions like bailiwicks, counties, and districts. Thus the procedures began to distance themselves from the model of Roman-canonical processes. The commissioners often now exceeded without a qualm the maximum of forty witnesses dictated by canon law. In a 1484 witness deposition carried out at the order of the court of the city of Constance, for example, no fewer than 349 witnesses appeared on behalf of one of the parties.⁴⁴ In addition, the chancelleries adapted the inquiry procedures to the topography of lordship within their territories.⁴⁵ In what follows, two of these special developments will be presented. A first section is on new ways of conducting witness depositions developed by the territorial administration of cities such as Bern and Zürich. These cities increasingly integrated the local courts in their hinterlands into witness depositions. Second, several sections will follow on the modifications that the Savoyard courts earlier had introduced into witness deposition procedures, for they show with particular clarity how the focus on regulations that would be valid throughout ever larger unified geographic regions resulted in broad changes to the understanding of unwritten legal customs.

Local Courts and Cities’ Territorial Lordship

Beginning in the mid-fifteenth century, the courts of the confederated Swiss cities with large territories gradually ceased using only itinerant commissioners to gather witness depositions. Instead, either the court or the litigating parties asked several local courts in villages or towns within the city’s territory to interrogate witnesses about the applicable law. The local judges then consulted witnesses who were under their jurisdiction and had the results recorded in the form of charters that they themselves sealed and then sent to the central authority.⁴⁶

For example, around 1478 the cloister of Interlaken presented a series of witness depositions in the form of charters before the court of the city council of Bern (Ratsgericht). With them, the cloister hoped to defend its area of legal jurisdiction against the claims of the neighboring town of Thun. In preparation for the court inquiry, the provost of the cloister had called on the local courts of small local lordships such as Aeschi, Unspunnen, Krattigen, Spiez, and Interlaken and requested that their judges consult witnesses who lived in the area. The judge of the court district of Interlaken, which included the cloister itself, had issued four different charters over two days in order to establish separately the statements of each hamlet that belonged to the court’s territory: that is, one each for Flüeh, Leissigen, Habkern, and the principal village of Interlaken itself.⁴⁷ In general, places of residence rather than individual witnesses are the most prominent primary units of examination in such inquiries.

All the consulted local courts asked the same questions, which were formulated by the provost, but apparently they could avail themselves of very different methods in doing so. To establish the statements of the two most prominent witnesses from the small territory of Unspunnen, for example, they produced two different charters. In the first, the local lord appeared as the issuer and judge, who consulted his bailiff as a witness. In the second, the two switched roles. The bailiff now verified what he had heard while acting as the judge who interrogated his own lord.⁴⁸ The judge of the village court of Krattigen did it all very differently. He made a declaration regarding the disputed legal situation in the name of all those in attendance, although he then had four other residents give endorsements to his statement.⁴⁹ The principle of consulting witnesses individually, which had been widely observed since around 1300, appears to have become more lax in this type of inquiry; instead, local notables once again took part in the inquiry. This process bears some resemblance to inquiry methods from the early thirteenth century, but it can scarcely be explained as a survival of the old procedures. For in spite of their differences, all these inquiries were consistently based on one innovation that had been implemented since the fourteenth century: the witnesses now had to give statements not directly about the valid law but rather about indications for its existence. The delegates who were examined by the local courts filled a need that was characteristic of the late fifteenth century: identifying laws as a characteristic of territorial unity.

Witness deposition inquiries to verify that legal regulations were accepted throughout larger geographic regions had to take account of the legalpolitical structures of those regions. Geopolitical relationships like those in the region around Lake Thun, where the consultation of 1478 was undertaken, could be encountered in large regions of contemporary Europe: in one legal form or another, all the relevant villages and small lordships were subject to the same overlordship—in this case that of the city of Bern, whose court had the final decision in cases of dispute. Large parts of the judiciary and the local courts, however, were in the hands of various small lay and ecclesiastical lords who practiced local law. These lords could easily have taken it as an infringement of their jurisdiction to have their subjects interrogated as witnesses by the commissioners of the centralized authority, the city of Bern. Such tensions could be avoided by the delegation of the inquiry to the courts of the local lords. The recording of the results of the inquiry in a series of locally produced charters shows the topography of power within the region in which the investigated law had to be recognized.

How Witnesses Became Advisors

In the Pays de Vaud, too, witness deposition procedures aimed increasingly at the verification of unwritten rules that could claim validity in large geographic regions. Here, however, this development took place under the auspices of a lordship administration that, by comparison to the territories of the German-speaking cities, was strongly centralized and had largely eliminated local lords. Nonetheless, as mentioned previously, inhabitants of Vaud still claimed the privilege of being judged according to their own legal customs.⁵⁰ This raised new problems, as litigating parties increasingly took appeals from their local courts to the central Savoyard courts which, since they mainly practiced learned law, were scarcely familiar with the customs of regional courts. Before the central court, litigating parties from Vaud could not only call on unwritten laws regarding lordship and jurisdiction but also claim that their consuetudines incorporated specific rules regarding procedure, inheritance, or civil law. The personnel of the local Vaudois courts could themselves take a stance on such claims, because they appeared before the central territorial courts of the Savoyards as participants in a specialized regional body of law that needed to be investigated and made explicit with the help of experts from the region.

The territorial courts demonstrably drew on notables from Vaud for this purpose from the middle of the fifteenth century.⁵¹ In 1437 witnesses at an inquiry described a procedure that had not been practiced for several years but in which several witnesses had formerly taken part. According to their recollections, when the Savoyard ducal council heard a case from Vaud, it issued a written summons to particular people from several cities in Vaud, mostly well-known nobles or notaries. These individuals then took part in the court procedure and described how a given question would be decided by their local courts. The notables conferred with one another before one answered on behalf of the group. This process was especially emphasized at the inquiry in 1437. The documents state that those who were consulted in the earlier procedure had not been interrogated but rather had been speaking as counselors and experts (“non … per modum examinis, sed ad consulendum et informandum animum iudicis”). Their duty had consisted of giving their opinio.⁵² Since the witnesses attended the entire procedure, they had the opportunity to express their views on each legal practice that became relevant during the court procedure.

Over the course of the fifteenth century, the method of rigorous individual interrogation was adopted by the counselors of the central Savoyard court as well. The first recorded instance of this, in 1430, was a hotly contested attempt to subject ten individuals called as counselors to the Savoyard central court (notables from cities in Vaud, namely Moudon, Vevey, and Lutry) to individual interrogation.⁵³ The court was to rule on a conflict over jurisdiction rights in the city of Lausanne which raised complex procedural questions.⁵⁴ Among those summoned for this case were several high officeholders, some of whom bore noble titles or at least were licensed notaries.⁵⁵ Most of these men had apparently also been summoned for earlier court procedures at the territorial court.⁵⁶ In contrast to what had been the usual practice until then, they were denied entry to the actual court proceedings. Instead, the commissioners of the court intercepted them at their lodgings. There they showed the men a list of nine articles that described some of the procedures of the two conflicting Lausanne judges. The notables were required to speak to their legal validity in individual interrogations.

Most of the nobles refused such individual questioning as a breach of their ancestral right to confer among themselves. To begin with, they doubtless perceived individual interrogation—to which only peasants were subject at the time—as a curtailment of their opportunities to participate in the definition of the law. Additionally, they argued that one cannot answer questions about what is just without hearing both parties and their arguments at a designated place and time.⁵⁷ Apparently the witnesses resisted isolating unwritten legal rules from the context of a concrete court proceeding and making it a static body of knowledge as opposed to a somewhat more situational reflection.

The Savoyard court jurists appear to have decided to defy such conventions. From the 1430s onward, the Savoyard courts regularly carried out individual interrogations of notables in order to clarify ever-broader aspects of a legal regime that would be binding for all of Vaud, regarding, for example, courtly procedural regulations,⁵⁸ the standards to which official documents had to conform in order to be accepted as evidence,⁵⁹ or aspects of inheritance, contract, and credit law.⁶⁰ Gradually, the courts also widened the range of legal customs that they assumed could be objectively delineated through individual interrogations. The resistance of those consulted is no longer visible in subsequent records. The procedure was also modified from the approach documented in 1430. First, the court no longer summoned its witnesses to the center of territorial administration but rather sent commissioners from one city in the Pays de Vaud to another, to consult them in their places of residence. Second, the commissioners no longer showed the witnesses the court case itself but rather asked about evidence for the relevant general legal rule. To this the witnesses often stated their opiniones as they had earlier in the territorial courts, in that they related, for example, how they would decide a contested question if they were confronted with it as a judge or sworn member of a local court.⁶¹ But the commissioners were no longer content with such statements of opinion. The new procedure required the reporting of facts. Thus the commissioners asked again, insistently, about which court the witnesses knew of in which such a case had actually happened, who the judge was, who the parties were, and in what year, month, and day this had taken place.⁶² As mentioned before, individual local lordship rights were now also elements of a common legal order created in the context of a procedure that assumed unwritten law could be reliably defined on the basis of factual evidence.

Regional Customary Law: An Assumption Underlying New Procedural Forms

The standardization of procedure made possible inquiries in which commissioners investigated both the particular rights of individual lords and the commonly applicable rules that were under debate in a particular court case. Thus the witnesses fell into two differently composed social groups, each of which had to answer its own series of questions. In the first group, peasants from the place under discussion were interrogated. To them, the commissioners posed almost exclusively questions about evidence for the validity of a disputed local lordship right. In the other group, high-ranking witnesses were asked about the validity of applicable regulations of procedural or civil law; this group included free nobles, knights, notaries, and high officials of the ducal administration such as bailiffs, castellans, judges, and tax commissioners. These individuals did not come from a single place but rather represented all the large cities of the territory.⁶³

In a case from 1437, for example, members of the noble families of Blonay and Champion disagreed over local lordship rights in the vicinity of the town of Bulle. The Blonays claimed that their ancestors had exercised these rights without interruption until they were forced to temporarily cede these as collateral to the Champion family, to whom they had become indebted. Their debts had since been satisfied through the annual proceeds of the lordship rights. According to the legal custom of the region, the lands should therefore have been restored to the Blonays by the creditors. The witness deposition with which the Blonays sought to establish their position was divided into two parts: in the first, people from the relevant villages stated whether the ancestors of the present Blonays had exercised the contested lordship rights uninterrupted until the cession.⁶⁴ In the other, notables from all the Pays de Vaud were consulted regarding the relevant credit law.⁶⁵

To a certain extent, the allotment of specific questions to members of different classes indicates group-specific ranges of experience. Local inhabitants were in fact especially well acquainted with the details of local lordship rights. In the same way notables, who regularly took part in pronouncing legal decisions as jury members, judges, and notaries, could most easily make judgments about principles regarding unwritten regulations of procedure and civil law. Nonetheless, many peasants could doubtless have given answers to many of the questions that remained reserved for elites, such as methods for the restoration of pledges, on the basis of their own experiences. The bifurcation rests on the fact that inquiries concerning particular and universal aspects of the law had grown into two separate procedures. Indeed, it remained a bifurcated process in the fifteenth century, although inquiries of both types were now undertaken using the same investigative techniques. The division of the witnesses also contributed to the characteristically early modern trend of dividing the people into ranked groups equipped with different political responsibilities and legal competences. Thus there appears to be a connection between two concepts that arose at this time: that of a unified customary law, albeit divided into different domains, and that of a unified territorial population, albeit divided hierarchically into ranks.⁶⁶

The spread of the new procedure was a component of a broad change in the cultural perception of legal custom. It was hardly a coincidence that the first extant attempt of a Savoyard court to define universally applicable rules by means of individual interrogations fell exactly in the year 1430. In the same year, the dukes of Savoy issued the Statuta Sabauda, the first broad territorial law code intended to be valid in all their territories. In the Pays de Vaud this claim to validity would later have to be rescinded under pressure from the local estate assemblies, which insisted that the people of Vaud maintain the privilege to be judged according to their own legal customs.⁶⁷ Nonetheless, even here interaction with unwritten legal rules changed as a result.

The jurists of the central territorial court understood Vaud’s legal customs by analogy with territorial law, which was valid in the entire region, or with the jus commune in which they were trained. Such jurisperiti crafted ever more elaborate and complex interrogations in the course of the fifteenth century.⁶⁸ They increasingly aimed at placing a given regulation in a coherent framework of norms. Thus a witness deposition about the criteria of validity for testaments, for example, could also deal with wide-ranging related questions concerning restrictions on the freedom of testators, inheritance law itself, or the features of legal documents in general. It could also raise such fundamental questions as what was understood by the term “tenant” or “appurtenance”⁶⁹ in a given region; what meaning was assigned to concepts such as “manifest” or “notorious”;⁷⁰ or what was meant by a consuetudo as such.⁷¹ Such activities clearly indicate that the legal customs under investigation were considered components of a comprehensive, systematic set of norms, a customary law. Such a system can really only be thought of by analogy to a written collection of laws—as an unwritten law book, so to speak.

The procedure itself assumed that a rule, to the extent that it could really be claimed to have validity, must be part of a coherent system of regulations for Vaud and that knowledge about it must be traceable throughout a broad region.⁷² Many factors may have contributed to the development of the concept that there was such a regionally unified customary law. To some extent, the different local legal expressions of the Pays de Vaud may well have undergone some actual standardization through the increasingly intensive territorial lord’s administration.⁷³ Certainly the new witness deposition procedure made the concept of a regionally unified, unwritten legal system feasible in an area where previous practice had apparently not produced any regional unification.

Customary Law as Expert Knowledge

In the course of the later fifteenth century, Savoyard witness deposition procedures in the Pays de Vaud increasingly concerned themselves with gauging the competence of the witnesses in legal matters. This partially expressed itself in witness deposition records that included ever more detailed information about the personal identities of the witnesses. Starting around 1300 records of questions noted not only the name but also the place of residence, age, and rank of each witness.⁷⁴ Beginning in the mid-fifteenth century, the witnesses’ level of knowledge was also considered. Witnesses now had to state whether they could read and understand Latin or describe the court in which they had gained their experience as judges. In addition a question that probably baffled as many witnesses as it does modern readers was included, namely whether the witness was a consuetudinarius.⁷⁵

The concept of a consuetudinarius appeared in regional sources from the middle of the fourteenth century at the latest. The term describes almost anyone who took a specific role in a court proceeding, namely as a jury member or counselor for the court regarding the definition and application of legal customs.⁷⁶ When the commissioners made the question of whether a witness was a consuetudinarius into a way to establish his personal identity, they gave this concept a new meaning. They implied that one could be a consuetudinarius apart from one’s role in a current court case, in the sense of a personal qualification as a specialist in consuetudo. Many witnesses were apparently surprised by this new usage of the word. They shied away from making a definite statement with the necessary clarity. They said, for example, that they were accustomed to speak about consuetudines and to use (“practicare”) them in court, or the reverse: that they had had little occasion to take part in law-finding.⁷⁷ For many the status of consuetudinarius was bound up with the practice of a specific office in which one was obligated to advise about legal customs. Thus one noble said that he was at the present time no longer a consuetudinarius, but that he had been one when he had held the office of castellan in the Pays de Vaud.⁷⁸ Other witnesses adopted the commissioners’ understanding of the term to some extent, saying that they were “a little bit” (“aliquantulus”) consuetudinarius.⁷⁹ One witness said he had heard a legal regulation quoted by consuetudinarii as well as populares. Reflecting precisely the commissioners’ distinction, he thus divided the experts in customary law from the remaining population, who were understood to be mere laymen.⁸⁰

As legal customs were increasingly regarded, by analogy to written law, as a structurally similar legal system with different content, the consuetudinarius came to be seen as a variant of the legal professional, the jurisperitus, to whom an alternative set of standards applied. Many witnesses who described themselves as consuetudinarii stated that they could neither read nor understand Latin.⁸¹ Especially clear concepts of the identity of consuetudinarii were expressed when they were explicitly compared to university jurists. One such comparison was made by a knight named Barthélémy de Saint Martin, who was consulted as a witness in 1470. He unambiguously described himself not only as a consuetudinarius but also as a doctor in both canon and civil laws. When asked where he gained this knowledge of legal customs, Barthélémy listed more than thirty nobles, high officials, and notaries by name as guarantors, saying they were not only great consuetudinarii but virtually “doctors of custom” (“doctores consuetudinis”).⁸² He further remarked that consuetudinarii, unlike jurists, did not concern themselves with ritual formulas. They also avoided such expressions as “if it be the case that,” “quasi,” and other subtle juristic sophistries. Consuetudinarii dressed “in popular fashion” (“vulgari modo”) and spoke in coarse Latin. In spite of this, they were highly learned in their own way.⁸³ What Barthélémy meant by “popular” should not be misunderstood. The majority of witnesses whose knowledge of common legal customs the commissioners trusted as consuetudinarii were nobles or town dignitaries. Whoever emphasized the “popularity” of customary law and its experts alluded primarily to the contrast with learned judges.

How can we sum up the development of witness deposition procedures between the thirteenth and fifteenth centuries and relate it to shifts both in conceptualizing the law and in the socially determined opportunities to participate in its definition? From around 1300, witness depositions lost their earlier consensus-oriented character. They relied increasingly on the model of individual interrogation derived from Roman-canonical civil law and the inquisition procedures of church courts. Thus it was implied that laws could be verified in the same way that facts could. This change expressed itself clearly in the further development of procedure in the fifteenth century. In fact, this procedure varied widely from one chancellery to another, but it assumed a law that was uniformly applicable; it assumed that valid regulations had to be anchored in the knowledge of the entire people of the larger territory. On the whole, this resulted in the depoliticization of law-finding. Regulations were less and less defined by means of negotiation and instead were seen as entities that belonged to geographic districts; they needed to be discovered, verified, and known in the same way as facts.

Through the change in procedure, the possibilities for different social groups to participate in the establishment of legal order also shifted. Local ecclesiastical and lay notables, once the typical witnesses, appeared less frequently in this role after 1300. Instead, members of the peasant population were interrogated more often. Notables were later reintroduced into the procedures by the Savoyards, this time as specialists in a regional customary law that was conceived of as coherent by analogy to written law. The new procedures, however, more strongly restricted the opportunities for witnesses in all categories to influence the organization of the legal order, because their task was no longer to express an opinion but was restricted to representing a stable knowledge shared by the entire population. In contrast, the discretionary power of the officials and jurists of the central territorial courts, who interpreted the statements provided by the witnesses, widened, as will be demonstrated later.⁸⁴

Since the nineteenth century, Germanists and legal historians have been inclined toward an assumption that the oral legal culture of the Middle Ages equated law with traditions that were rooted in the people of a region through a combination of narratives and customs. Paradoxically, such an understanding is most visible in the late phases of the development of procedure. First, only late procedures in which the witnesses were consulted about detailed events assumed that laws could be deduced from customary habits. Second, only late procedures were built on the presumption that unwritten laws conformed to a legal understanding that was spread throughout the entire regional population. Finally, only the model of written law helped gain acceptance for the idea that unwritten legal customs had to be investigated as components of a coherent system of norms, a customary law. Such assumptions were thus in no way remnants of an old unwritten culture. They were connected far more closely with the practicalities of learned law and the organizational needs of the new territorial lordships.

Law Declarations in Local Courts

Thanks to the Weistümer we have ample information about the process by which unwritten laws were passed down in manorial courts. These documents, which originated sporadically in the thirteenth century and increasingly in the fourteenth and fifteenth centuries, do not merely contain series of local legal regulations. They also suggest more or less forcefully that even before they were written down, their contents had been declared from memory in a formal procedure at the local manorial court assembly. Some Weistümer regulate the course of these assemblies in the form of normative instructions. Others, such as that of the cloister of Engelberg mentioned at the beginning of this chapter, preface the actual legal statements with a prologue that describes how the lord arrived at the place and called together his peasants to record the laws defined in the subsequent Weistum. It is worth dwelling on these vivid descriptions for a while, for they have made an enduring impression on the perceptions of declaration procedures in modern research.

The Depiction in the Weistümer

According to the accounts in Weistümer, manorial court assemblies followed strongly ritualized forms. The lord convened these gatherings at a given place one to three times annually, on fixed dates. The dependents were obliged to appear under pain of fine. Many Weistümer describe first the arrival of the lord and his festive reception by the peasants. Mainly Weistümer emphasize that the court assembly, in addition to the law declaration process itself, also included acts of exchanging gifts, eating and drinking together, and other forms of sociability, which could have a marked symbolic character.⁸⁵ Weistümer often contrast the right of the lord to be hosted by the people of the place before and during the assembly, the so-called right of hospitality (Gastungsrecht), with the corresponding rights of the inhabitants. Many records state that the lord and his followers spent the proceeds of substantial fines on drinks during the legal assembly.⁸⁶ Such ritual depictions oscillate between celebrating the preeminence of the lord over his peasants and evoking a camaraderie between them that rested on reciprocity and patriarchally influenced forms of interaction.

The pronouncement of the law was to be embedded in such rituals. Most Weistümer describe these moments much less exactly than the background events. Some Weistümer report in direct speech how lords elucidated local legal relations with successive questions (along the lines of, “Who is the lord here?”; “What dues may he collect?”; “Who may keep his cattle in the woods?”). While such Weistümer are not especially numerous, they have shaped some basic assumptions of modern research. These include, first, the idea that law declaration assemblies were there to regulate a binary relationship between the “inferiors” and their “superior,” that is, between the totality of local peasants and their lords.⁸⁷ Second, declarations are generally seen as alternative media that made it possible to pass down without writing a definitive law that was nonetheless unaltered.⁸⁸ Third, Weistümer give the impression that they arose from the procedures of oral legal declarations, reproduced them faithfully, and therefore in the end took over their functions and replaced oral tradition.⁸⁹ Gadi Algazi summed up conceptions of such unwritten but still orderly legal traditions in the concise phrase that peasants filled the role of “living archives” of legal knowledge to which lords could refer on the occasion of manorial court sessions.⁹⁰

A certain skepticism about such a depiction of declaration procedures is justified, because in most Weistümer normative and descriptive elements merge fluidly with one another. In this way, these documents present manorial courts as traditions that were static, and to some extent idealized, in both form and content. These seem oddly detached from the diversity of actual circumstances that must have provided the immediate circumstances for each declaration. This is especially evident when—in the best tradition of source criticism—one compares the picture provided by the Weistümer with the one provided by other genres of documents. Thus plentiful charters, for a long time scarcely noticed in the research, can bear witness to the concrete local conflicts in manorial courts which formed the basis for declaration ceremonies, and witness deposition transcripts contain statements from witnesses who answered questions about legal regulations in which they reported their memories of declaration ceremonies. Thanks to such documents, the picture of the declarations conveyed through the Weistümer can be scrutinized. In what follows, we must first discuss the circle of participants in manorial court assemblies. What sorts of people are concealed by the terms “peasants” and “lords”? Later sections will take up the political functions and the course of action of the declaration procedures.

“The Peasants”

Manorial courts frequently have been understood in modern research as encounters between a lord and his local peasants. Such a description of the protagonists of legal declarations seems clear at first glance, but it is actually quite abstract. Even the question of who exactly took part in the manorial court on behalf of the dependents is by no means trivial. The usual description in modern research of these participants as “peasants” does not entirely reflect the terms commonly used in late medieval documents, such as “associates of the court” (hofgenossen) or “men” (homines).

The idea that obligatory attendance resulted in something like a cross section of the entire local male population works best in the case of the manorial courts of those who held territorially defined jurisdiction rights, a group that admittedly grew during the late Middle Ages.⁹¹ But much more often, a lord who claimed primarily landlord rights presided over a manorial court. In such cases, the obligation to attend referred primarily to people who had leased lands from him and accordingly owed him yearly rent. Most contemporaneous documents expressed this situation in a picturesque phrase: the duty to appear at the manorial court was placed on those who held land from the lordship that was at least “seven foot-lengths wide and seven footlengths long” (“sieben Schuh weit und sieben Schuh breit”), as recorded in various Weistümer from the vicinity of Zürich.⁹² Although manorial courts were on the whole thought of as masculine domains, a few women, especially widows, could also be subject to the obligation of attendance thus defined;⁹³ in addition, numerous male heads of household were exempt from it by the same standards, for in many places a majority of the households worked land that they did not hold directly from the lordship but rather in a secondary lease relationship from the hereditary tenants (Erblehensträger). Under such circumstances, only a relatively small portion of the resident male population was obliged to take part in the manorial court.⁹⁴

In the same way, the circle of participants in the manorial court of a landlord could extend far beyond the local population. The Weistum for the Aargau village of Holderbank, for example, names the participants in a declaration ceremony of 1470 and mentions their places of residence. They came from villages in the vicinity, including Niederlenz, Möriken, and Hendschiken, and from the neighboring town of Lenzburg, but apparently none of the individuals listed by name was a resident of Holderbank itself.⁹⁵ Especially in areas that were close to cities, a majority of hereditary tenants could consist of urban citizens who used the legal form of a peasant lease to invest capital in agricultural lands, which they in turn leased to local producers. Thus one Weistum from Albisrieden near Zürich ordered the residents of the village to take care that the urban citizens from whom they held their lands appeared at the manorial court.⁹⁶

Finally, the obligation to take part in the manorial court of a lordship could also extend to members of neighboring lordships. Complex entanglements of property-holding and lordship relationships led to local legal constellations in which one lordship overlapped with another in manorial or legal authority. Most of the cloisters in the vicinity of Zürich administered not only their own manors, over which they were lords, but also individual farmsteads that they held from the college of canons as hereditary tenures, much like peasants would have done. Like the peasants, these cloisters were required to have their fiefs renewed and there are charters of re-enfeoffment created by the college for the cloisters of Wettingen, Kappel, Ötenbach, Selnau, and St. Martin auf dem Zürichberg, and the cloister of the Dominicans in Zürich. All these charters bound the renewal of the tenure to the stipulation that the tenant cloister dispatch a member to the local manorial court assemblies.⁹⁷ The “court associates” or “dependents” on whose presence the manorial court especially relied included not least urban citizens and representatives of neighboring lordships.

“The Lords”

No less complex was the composition of those participants in the assembly who assumed the role of lordship. In practice the “dependents” at a manorial court confronted not an individual lord but a multitude of lordly representatives. To some extent the Weistümer themselves made this explicit. The records for places under the lordship of cloisters particularly emphasize that an abbess, abbot, or provost as manorial lord shared the presidency of the manorial court with a noble representative (advocatus). Statements that, for example, refer to the presence of “honorable men, nobles, and knights” at the manorial court recall that often many lords—among whom the local lordship rights were shared—needed to be represented.⁹⁸

The actual holder of local lordship rights seldom personally took part in the manorial court. According to most descriptions of specific court assemblies, underlings presided over the court as judges and thereby ruled “in place of” (“anstatt”) the lord, “on behalf of said” (“von heissens wegen”) lord, or “in the name of” (“im Namen”) the lord. For example, the minor lords as well as the nobles of Mont relinquished their attendance at their court assemblies to their castellans. According to witness deposition statements, the castellans in turn were represented in their absence for years by subaltern officials (nunci) at the manorial court; presumably, these were low-ranking dependents from the relevant village or a neighboring one.⁹⁹ At best the lords personally took part in their own manorial courts when they themselves had a suit to bring, and when they called for a law declaration ceremony.¹⁰⁰ Nonetheless, a lord could send a representative to the judge even when bringing a suit. At the manorial court of the Aargau village of Döttingen in 1398, the local cellarer presided in the name of the actual manorial lord, the abbot of St. Blasien, while another representative of the abbot, from the nearby town of Baden, appeared before him.¹⁰¹ One representative of the lord requested the other to have the court associates declare the local regulations regarding the use of pasture land.

The fact that the activities of the manorial court were dominated by representatives of the lord imparted a very practical meaning to the symbolic representation of lordship rights. Descriptions of manorial courts in witness deposition statements and charters often mention the court staff of office as an emblematic object that fulfilled this function. The representative of the lord gave this staff to the representative of the advocatus as soon as there was a question to be decided that fell under his authority, and high officials passed the staff to those they delegated to preside over the court.¹⁰² During an actual declaration ceremony, the court staff served to represent lordly power while distinguishing it from the person who exercised it in that instance. In declaration texts, the depiction of the lord apparently fulfilled a similar function. The description of his arrival did not depict the regular routine of the manorial court but rather reflected the symbolic language with which the Weistümer described the lordship system.

Political Functions

The presence of different lordly representatives at the manorial court is directly linked to the scarcely ever acknowledged fact that, through their declarations, these assemblies not only regulated the relations between lords and their peasants but also decided conflicts between lords at all levels. This expansion beyond regulating relations between lords and peasants is most readily apparent when manorial courts settled conflicts between the lordship and its local officials and ministeriales. Another key task of the manorial courts involved the resolution of conflicts between the local manorial lord (Grundherr) and the jurisdictional lord (Vogteiherr). Charters repeatedly show how representatives of manorial and jurisdictional lords or other competing lords settled conflicts over the division of fines and fees through the declarations of their shared dependents.¹⁰³ Such questions dominate the text of many Weistümer.¹⁰⁴

Furthermore, suits were often brought before the manorial court of a lordship by other lords and their dependents. During the second half of the fourteenth century, citizens of the small city of Büren regularly appeared before the manorial court of the neighboring village of Pieterlen, which was subject to a different lordship. There they raised objections to the declaration of the boundary lines between the two lordships and thereby defended their own interests as well as those of their lord before a foreign manorial court.¹⁰⁵ While Weistümer often define who must appear before the manorial court, they conspicuously stipulate no restrictions on admittance. Weistümer and witness depositions show that those assembled at a manorial court included not only members of a limited local population but also any number of notables who had a vested interest in the legal order of a particular place.

To be sure, there were eminently practical reasons to settle conflicts between lords that concerned local legal relationships before village manorial courts. The residents and notables from the area assembled there were in a better position than higher-level ecclesiastical or territorial courts to survey the complex local legal network, with its competing interests arising from the usage, manorial, and judicial rights of multiple parties. Especially in areas with less-developed systems of territorial administration, there were no legal entities below the level of the Holy Roman Empire that could claim jurisdiction over several lords involved in one conflict. Documents that were produced from higher-level jurisdictions, which were generally legitimized “from above,” might enjoy higher prestige. Yet the regulations legitimated “from below” by the declarations of manorial courts were often more practical for, in addition to the dependents, these also included the local officials and elites against whom they were to be enforced or under whose supervision they would be implemented in everyday life.

It would be naïve to describe manorial courts simply as forums for the harmonious and well-ordered settlement of disputes. In depositions witnesses often argued that the mere fact that a lordship regularly held a manorial court in a particular place showed that the place was under his control.¹⁰⁶ According to the same logic, conflicts between lords were often ignited by the question as to which court’s jurisdiction particular people and areas were subject. Thus the canon chapter of Amsoldingen charged the local ministeriale, Berchtold of Amsoldingen, in a list of grievances written around 1300, alleging that he had alienated the chapter’s vineyard and sought to “weaken” and “oppress” its manorial court. Berchtold had forbidden all people who lived on the far side of the Amsoldingen lake to take part in the court assembly of the chapter. Instead, he had begun to hold his own assembly in front of his castle in Stocken, even though this castle fell under the jurisdiction of the chapter and furthermore had never been the site of a court assembly.¹⁰⁷ In 1374 the priory of Romainmôtier complained to Countess Bonne of Savoy regarding similar circumstances in the village of Bursins, over which it claimed all rights of jurisdiction. According to the priory, the noble lords of Mont had recently begun to hold their own court assemblies in the cemetery of Bursins.

In 1482 inhabitants of the city of Lausanne composed a petition of grievance regarding their bishop and his officials. One of the complaints concerned a confidant of the bishop named Ludovicus Besson. When the lawful maior of the village of Lutry had called the manorial assembly at the usual time and place, Besson had seized control from him by force. Besson had suddenly appeared with an armed retinue, mounted the court bench, and named himself the new maior in front of the appalled assembly participants. A little later he began to hear cases as maior. In such conflicts the summoning of dependents to the manorial court functioned as a means of challenging the claims to jurisdiction of competing lords and establishing one’s own claims on the ground.

Weistümer are thus misleading when they depict manorial courts as forums that regulated the interaction between a lord and the totality of his dependents. Instead, what is manifest in court documents and witness depositions is the significance of these assemblies for the settlement of conflicts between lords and for their relationship to their officials or ministeriales. The references in charters to agreements between lordship and peasants in manorial courts are actually relatively few, mainly due to the fact that such agreements were seldom documented in writing. The constellations that were distinguished for legal purposes (lord-peasants and lord-lord) should not be translated directly into social oppositions. The rights of lords were often pled by local lordly officers who themselves were dependents of their lords, much in the way the role of dependent peasants could be filled not only by peasant producers but also by urban citizens, monasteries, or other corporate bodies that themselves claimed lordship rights in the vicinity. Regulations encountered in manorial courts correspond with legitimation “from below” not because they reflected the will of the lower social classes but rather because relations among notables were negotiated here without recourse to the higher-level lordly courts. In this form of delineating the law, the definition of vertical dependent relations between a lordship and its dependents was tightly interlocked with the horizontal delineation of rights between competing lordships.

Variations in the Transmission of the Law

From the standpoint of a modern understanding of law that is focused on legislative codification, one may be tempted to regard the manorial courts’ function of passing down law as compensation for the deficits of a society with less writing: regularly held legal declaration ceremonies seem to indicate a makeshift attempt to ensure a stable local legal order that would later be far better protected through written legal texts. At first glance it seems that late medieval Weistümer were also committed to such an understanding, for these often stipulated that the local law should be recalled to memory at each assembly of the manorial court through a declaration.¹⁰⁸ In many Weistümer, moreover, the recording of legal regulations was explicitly justified by the fact that it would eliminate the uncertainty of oral transmission.¹⁰⁹

But to what extent were declaration ceremonies suitable—and, indeed, intended—for relaying legal content unchanged over long periods? To answer this question, we must examine court records and witness deposition records alongside Weistümer. On this basis, there are four questions to be discussed in the following sections concerning the implementation of declaration procedures: What did medieval actors say about the mnemonic function of declaration ceremonies? For what reasons were they held? What processes therefore contributed to their operation? And what role did writing play in them? Ultimately, the relationship between the oral declaration ceremonies and the written Weistümer needs to be reassessed through an analysis of conflicts over how exactly to go about the declarations, among other things.

Mnemonic Functions

Without a doubt, declarations in manorial courts had great significance for late medieval actors. In some witness depositions, witnesses answered questions about valid laws by referring to the contents of legal declarations.¹¹⁰ In others witnesses boasted that they were particularly knowledgeable about local law by emphasizing that they had regularly taken part in the manorial court of their village for decades.¹¹¹ In 1456 a witness from Kölliken related how he was brought to the manorial court by his father as a small boy. There, someone had ordered him and others of the same age to listen well to how the rights of the lord were declared so that they would later know them as adults.¹¹² Especially in witness deposition records from German-speaking Switzerland in the fifteenth century, witnesses stated over and over, in a somewhat programmatic way, how important manorial courts were for passing on knowledge of local legal regulations from one generation to the next.

Witness deposition statements in particular indicate the limits of transmitting legal knowledge through manorial courts. They show, on the one hand, that relaying local legal knowledge did not take place exclusively at the manorial courts but rather to a considerable extent also in everyday conversations. When witnesses were systematically asked how they knew about a disputed regulation, they attributed it nearly as often to declarations in manorial courts as to other sources: for example, to conversations with older acquaintances and relatives—strikingly, often with their mothers—or to conversations in the tavern.¹¹³ On the other hand, the repetition of legal declarations did not itself guarantee uniform views about valid law. In one case recorded in 1435, the witness deposition about the rights of the millers of Dielsdorf to the water in the stream reveals particularly divergent memories of the manorial court’s declarations. At one end of the spectrum stood the statement of a former sub-bailiff, according to whom the millers could use the water “as often and as much” (“so oft und viel”) as they wanted.¹¹⁴ Others said that they had heard the more restrictive regulation that the millers could use the brook, but one-third of the water volume must always be allowed to flow past the mill through the village.¹¹⁵ A few reported that the millers were entitled to this water volume, but only on Saturdays and on the eves of the name-day feasts of the twelve apostles.¹¹⁶ Lastly, one witness said that, according to the declaration of the manorial court, the millers could not divert the water into their mills at all without obtaining the express permission of the village.¹¹⁷ Depending on the matter, even smaller discrepancies among the witness statements could make it very unclear what rule actually had been declared by the manorial court.¹¹⁸

The memories of legal declarations were not contradictory only on the basis of faulty memory; some witnesses had “lapses of memory” or adjusted their statements out of loyalty toward or fear of one of the disputing parties. The witness Hensli Schuhmacher provided another reason when he said that “what they pronounced in one year, they did not pronounce in another.”¹¹⁹ In other witness depositions, too, witnesses cast doubt on the validity of a regulation by saying that these had first been declared at the last manorial court assembly—or conversely, had not been declared for the last few decades.¹²⁰ Clearly, legal declarations themselves contained noticeably different variations in content from one time to the next. In practice their great significance seems to have rested less on the claim to pass on legal knowledge unaltered than on the claim to guarantee the application of regulations to present conflicts. It is now necessary to explicate this more closely.

Circumstances

That the contents of the declarations vary has much to do with the immediate causes for the declaration ceremonies. Demonstrably, the manorial courts of many lordships were often not called for years, sometimes decades, at a time.¹²¹ In other places, the actual solemn manorial court, summoned two or three times annually, can scarcely be distinguished from the sessions of a local court summoned only as needed (but usually more often), in which only a few sworn representatives and the judge had to take part.¹²² At the manorial court infractions of the regulations were prosecuted; disputes over boundaries and inheritances were decided; property exchanges through sale, pawn, or inheritance were made public; and the maior, herdsmen or foresters were installed in their offices. In many places, representatives of the lordship collected fines for infractions of the rules from inhabitants, in addition to regular dues, which were often to be paid at the assembly.¹²³ All these activities could entail controversy over what local law prescribed.

When questions about the law were raised, the primary aim was not necessarily to recall what norms had previously been declared but more likely to reach an agreement in the present conflict. The numerous extant charters that were issued regarding the declaration of a specific regulation at the manorial court give at least as much insight as Weistümer into the practice of legal declarations in the manorial courts, though they are scarcely acknowledged in the research. For the rural court of Buchsgau, the first real extant Weistum that lists a comprehensive catalogue of regulations is from the fourteenth century. Yet there is a court record from as early as 1286 that records a single regulation declared by the rural court of Buchegg when the abbot of the cloister of Trub asked how long one must possess another’s plot of land without objection before one’s possession of the land is considered uncontested.¹²⁴ Countless documents from the fourteenth and fifteenth centuries similarly recorded individual regulations that manorial courts had declared: for example, on a village’s meadow-usage rights, on the amount of the fine for a specific offense, or on the prohibition of marriage between dependents of different lords.¹²⁵ Legal declarations in such contexts were less reiterations of a stable body of laws in a ritual that was clearly set apart from the other activities of the manorial court assembly (such as litigation or the publication of transactions) than clarifications of regulations that were carried out on a case-by-case basis during such activities.

Especially in western Switzerland, a prominent activity of the manorial court—and in many places almost the only identifiable one—concerned the collective walking of local fields and paths, the so-called viationes.¹²⁶ Through such processions the local order was passed on entirely orally, although in a very different way than Weistümer suggest. Here bringing to mind the legal order began not by recalling explicit regulations but rather by collectively inspecting a site. The participants heard arguments over changes to the farmlands and paths that had occurred since the last meeting. They mediated these and agreed among themselves about whether to impose fines, order construction and repair work on fences, or forbid particular kinds of cultivation. In this way, decisions were reached through tacit or explicit compromises between the participants as much as through the recall of earlier circumstances.¹²⁷

Generally, declaration procedures made no sharp distinctions between the recall of established legal regulations and the negotiation of agreements arrived at in the moment. An interesting example of this is provided by the witness deposition record of a dispute that flared up repeatedly in the manorial court of Grüningen. There the lordship claimed the right to confiscate the goods of criminals who were sentenced to death.¹²⁸ A man known as Old Lehmann declared that the law had stated that the heirs of the executed person should receive his body, but the lordship should receive his goods. Participants in the assembly had protested repeatedly that the regulation applied only to movable goods and had to be more precisely stated as “to the relatives, the body; to the lord, the movables” (“den fründen den lib und den herren dz varend guot”). Several witnesses related how Old Lehmann had silenced their objections by guaranteeing that for a long time the lords had confiscated only the movables, but not the immovables, and this would certainly not change in the future.¹²⁹ The agreement reached here was not simply about the wording of a regulation but also about its implicit interpretation.

If a writer wanted to preserve such an agreement in writing in a Weistum, he needed to choose one or the other formulations of the regulation—neither of which would fully correspond to the entire accord reached by the manorial court. This points to a fundamental problem in the written recording of oral tradition:¹³⁰ the actual tradition to be recorded and the accompanying explanation can often be separated from each other only with difficulty, because the two could be closely mingled together in oral speech.

Procedures

The specific practices used at declaration ceremonies varied dramatically according to time, place, and situation. We have already seen that the popular perception that declarations were generated as answers given by peasants to questions asked by their lords is not always true. At least in individual cases, it has been demonstrated that dependents and even women could ask for a declaration—in Weissenburg in 1477, for example, regarding the rights to common land.¹³¹ Also, the person responsible for declaring the law could vary, even in a single court. Thus in Pully in 1368, the declaration was made by seven men whom the assembly had chosen for this task in advance. One of the documents produced for the case describes this procedure as “the form that had been customary since old times” (“forma ab antiquo consueta”). But those old times were not particularly old. A document produced at the beginning of the fourteenth century still mentions that twelve men chosen as sworn representatives had to do the declaration at the manorial court of Pully.¹³²

For a few manorial courts there were vaguer instructions, according to which the declaration was the responsibility of the “oldest” or the “oldest and most honorable” participants in the assembly. In the fifteenth century, especially in the vicinity of Zürich, it was often a few older men who declared the law for years: for example, in Oberdürnten, Old Hans Reisen; in Dielsdorf, Old Keller; and in Grüningen, the aforementioned Old Lehmann. Many of these men held lordly offices.¹³³ Sometimes the lord himself declared the law. Thus in 1374 the local lord asked the court assembly of the village of Ringgenberg on Lake Brienz that he be allowed to declare the law on the descent from the summer pasture in the mountains, and the assembly assented.¹³⁴ The need to come to an agreement about who should declare can itself indicate that the person to whom this duty fell—or to whom it was eventually attributed in the documents—could depend on the subject of the current inquiry.

Regardless of who had instituted the declaration ceremony, the usual assembly participants subsequently had the opportunity to raise objections to the formulations. According to some Weistümer, this procedural step was to be repeated for each and every clause throughout the transcription of whole series of regulations. This stage could involve fierce exchanges between conflicting interest groups, as was characteristic of manorial courts. Weistümer give at best vague instructions about the procedures through which the opposing interests were to be aligned with one another during declaration ceremonies. The Weistum of Romainmôtier, however, is among the few that explicitly state that no participant in the manorial court assembly may speak without permission of the lord.¹³⁵ Yet despite the stipulation, found in a few records, that a regulation declared in the manorial court must receive either unanimous or majority approval,¹³⁶ democratic forms of decision-making cannot be assumed.¹³⁷ In this regard, the manorial court was fundamentally not much different from the better-researched urban councils and citizen assemblies of the same period. Like these bodies, declaration assemblies could be governed by ideals of rigid hierarchies and unequal rights of participation, and they could exhibit a notably authoritarian influence.¹³⁸

Declaration ceremonies did not inevitably result in universally applicable regulations. Often individuals requested exemptions for themselves. During the declaration ceremony in Pully in 1368, a representative rose to claim that the obligation to taxation being proclaimed might very well be valid for others but he and his ancestors had been exempted from it from time immemorial.¹³⁹ The Weistum of Appels from 1327 begins with a list of local residents who complied with the established regulations declared at that time and recorded in the subsequent text. A note appended to the last two names, however, indicates that these residents had obtained exemptions from individual regulations for themselves on the evidence of privileges owed to them.¹⁴⁰

It seems to have been particularly important that the authoritative local actors who were personally concerned with a regulation approve it during the declaration ceremony. This was emphasized by witnesses who recounted their memories of declarations during court procedures. For example, witnesses in one case cited the rule that had been declared about the placement of sluices in the stream, pointing out that the millers had not opposed it.¹⁴¹ They remembered a declaration regarding the division of jurisdiction between the territorial lord and the steward, and added that the representatives of the steward had been present at the time. They described how the local lord had given his assent to the inheritance rules as they were declared.¹⁴² In such statements, the declaration procedure appears not as a legislative process by a general, authoritative corporate body, but rather more as an arrangement of various agreements between the concerned individuals, groups, and corporate bodies.

The Use of Writing

The common perception that oral declarations were the forerunners and functional equivalents of written Weistümer is misleading in that it tends to gloss over the fact that at times written documents were used alongside the oral declarations at the manorial courts. The witnesses’ declarations in the manorial court did not necessarily serve as recollections of legal content that was not available in written form. Often the participants in such procedures relied on written records as well.¹⁴³ In a witness deposition from around 1325, witnesses from the village of Rüeggisberg near Bern reported how, in the local manorial court assembly, the representatives of the manorial lord as well as those of the steward compared oral declarations with the contents of scrolls they had brought with them. Legal declarations often began with someone reading “in a loud and understandable voice, word for word” from a parchment list or slip of paper. In such cases, the participants in the court assembly were subsequently asked questions about what had been read.¹⁴⁴

Such records were more personal mnemonic aids than authoritative representations of the declarations, for the written formulations could be revisited by the manorial court and amended according to still unwritten regulations. Thus the manorial court of Döttingen in 1398 conducted an inquiry about the “consuetudines, privilegia, jura, proprietates” that a representative of the lordship had read out from a parchment scroll. As the Weistum put it, a transcript consisted of regulations that had been partially written down earlier, partially drawn from memory, and partially agreed on due to current circumstances, and they were now confirmed “in the mode of innovation, renovation, or imitation.”¹⁴⁵ It is in the sixteenth century that we find the first substantial evidence that legal declarations at the manorial court approximated the acts of homage, by which officials always read out the same version of a Weistum as a binding statement of the law without allowing debate over its revision and confirmation.¹⁴⁶ In contrast, the earlier declaration procedure resembled the proceedings at annual urban citizens’ assemblies, at which secretaries read out individual statutes established by the city council along with charters of privileges, some of them generally applicable, some of them granted on a case-by-case basis. Cities also debated whether, in a given inquiry, old determinations should be repeated or new ones adopted.¹⁴⁷

Representatives of lordships, in particular, presented written documents originating from entirely different contexts when they attended legal declarations at manorial courts. In 1459, at the manorial court of Seftigen, the provost of Amsoldingen protested against the declaration of boundaries for his own lordship district by submitting charters from his chapter.¹⁴⁸ In Weistum texts themselves, regulations were sometimes justified by appeal to old charters, land lists, and interest records.¹⁴⁹ Through the submission and approval of regulations from memoranda, charters, and land lists, provisions were incorporated into Weistümer that had their origins not in declaration ceremonies but in quite different contexts for the delineation of law, such as in agreements between lords or in the privileges of a territorial lordship. In Chapter 4, we will see in greater detail that the contents of Weistümer as a whole often came into being only in very loose connection with the business of the manorial court. There we will also discuss the fact that the recording of Weistümer in many cases had less to do with conflicts at a local level than at a level higher up in the lordly hierarchy, sometimes reflecting the local officials’ needs to document their rights before the court of a territorial lordship.¹⁵⁰

In the end, how can we assess the relationship between declaration ceremonies (Weisungen) and the records about them (Weistümer)? Although Weistümer editors sought to establish continuity between them and oral declarations at the manorial courts, historical analysis must also focus on the overlooked ruptures between them, for Weistümer neither incorporated only regulations passed down through oral declarations nor perfectly depicted the declaration procedures. Charters and witness deposition records allow us to correct the image of manorial court assemblies in several respects. First, declaration ceremonies settled disputes not only between a lordship and its dependents but also in the most diverse of constellations: between dependents, between lords and their officials, between rival lords, and so on. Second, the delineation of laws at manorial courts was mingled closely with their practical implementation and thus was not very stable. Written records of Weistümer served a very different purpose. These aimed less at the immediate implementation of law than at its long-term stability, which required strongly stylized depictions of the manorial court. In Weistümer, legal authority could not be attributed to the diverse and changing actors who actually agreed on and practiced the law. Instead, the local order was depicted in an authoritative, almost constitutional abstraction as a “timelessly” valid relationship between a superior and a clearly separated set of inferiors, between a lord and the totality of his dependents or “peasants.” Thus Weistümer legitimized the regulations they contained, which were derived from the manorial court, but at the same time, they transcended the statements that had originally been closely bound up with particular situations and persons.

* * *

Not only were witness depositions and declarations at manorial courts very different procedures for the clarification of unwritten law; they each also took many different forms. Nonetheless, the main trends in the late medieval development of these procedures can be related to one another and to a general change in legal concepts. Both procedures collected statements from members of the middle and lower classes. This was less an expression of democratic forms of dispute resolution than the result of attempts to organize laws according to the geographic boundaries of their validity. Whereas witness depositions were increasingly used to explain regulations as components of territorial legal orders, declarations at the manorial court constituted the law of a particular place. Often they concerned the settlement of conflicts among multiple lordships and their respective officials rather than the regulation of the relationship between a lord and his local dependents.

A marked change in the cultural understanding of unwritten law is initially apparent in the witness deposition procedures. Here the chancelleries of church courts and great power complexes modeled themselves increasingly on the basic procedures of witness examination in Roman-canonical civil and inquest procedures. This development coincided with a move away from procedures that were concerned primarily with the formation of consensus among notables. In their place arose rigid interrogations based on the assumption that law involved established facts that were expressed in conventional activities and did not need to be agreed on but only discovered. In the fifteenth century further procedural variants developed that made it easier to root law, thus understood, in large geographic regions and to understand the regulations being investigated as components of a coherent regional customary law. Although this was unwritten, it was understood by analogy to written legal codes.

Declaration procedures, by contrast, underwent a much less marked change, but they were subject to new interpretations in connection to their increasingly frequent recording in written Weistümer at the end of the Middle Ages. Charters and witness deposition records show that declarations in manorial courts were mainly concerned with negotiating individual agreements between relevant notables in specific situations. In contrast, Weistümer depict this activity as a ritualized act: the pronouncement of whole series of regulations that had always been pronounced in an ancient ritual involving lords and peasants. The simplified depiction of the protagonists and the course of events of the declaration served not least to legitimate the contents of the Weistümer through an unchanging tradition that purportedly reached back to the time before their transcription.

The reorganization of the witness deposition procedure and the increased production of written Weistümer coincided with ruptures in the conception of law in three regards: in both cases, there were changes from negotiable to stable norms, from isolated regulations to coherent systems of regulations, and from a law legitimated through agreement between notables to one legitimated through the knowledge of homogeneous, geographically defined populations. The result of these developments expressed itself initially at the end of the Middle Ages, as unwritten law was increasingly equated with tradition and the awareness of the people as a whole. This conception hardly reflects a primeval or folkloric understanding of law; instead, it resulted from the adaptation of procedures for defining unwritten law to the new requirements of lordship institutions.