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