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