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