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.
CHAPTER 2
Dealing with Lordship Rights
Between 1469 and 1471 Savoyard courts handled an inheritance dispute between the high noble brothers Guillaume and Hugues de Chalon regarding the small lordships of Grandson, Montagny, Belmont, and Echallens in the Pays de Vaud. Commissioners of the court interrogated approximately sixty witnesses. To determine their loyalties—according to the standard court procedure of the time—the witnesses were asked