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