Law declarations were, by contrast, procedures carried out by the courts of local lordships. These courts are referred to as Hofgerichte or Landtage in German, and as plaids généraux in French; throughout this study, I refer to them as “manorial courts.” In these assemblies (which ideally were held regularly), representatives of local dependents and of their lordship came together to regulate local matters and hold court. This could also be the occasion for the solemn promulgation of a whole series of local laws that related to the claims of the lordship, such as legislative authority and dues, but that also dealt with the economic organization and communal life of the village. In the late Middle Ages, these activities were called offnen or weisen, from which derive the terms Offnungen and Weistümer (in French, plaicts) for the documents they produced.5 In this study, I use the verb “to declare” to describe the action and the nouns “declaration” or “declaration procedure” to describe the ceremony or venue in which it took place, while keeping the German term Weistum to refer to the document such an activity produced.
This chapter discusses the development of these methods of inquiry. (The practices of recording—or fabricating—their results in writing will be the topic of Chapters 3 and 4.) Investigating the methods by which witness depositions and law declarations were conducted is not simply a question of researching the history of legal procedures. It is much more important to explain their social and cultural contexts. This avenue leads to questions about the situations in which the procedures were employed and about the possibilities for participation they offered to different groups. Moreover, the ways and means by which law was verified reveal tacit assumptions about the grounds for validity and changeability. Investigating the verification of law makes it possible to reexamine commonly held views about how unwritten law in the Middle Ages was equated with traditional ways of behaving, justified by its age, or considered to be the expression of one of many regional popular conceptions.6
The two types of inquiry are dealt with sequentially in this chapter, with two sections being devoted to each of them. The first two sections deal with the heretofore only patchily examined witness depositions and argue for the distinctive change this type of inquiry underwent in the course of the late Middle Ages.7 During the decades around 1300, deposition inquiries began to rely more heavily on the model of witness examinations in civil and inquisitorial procedures in church courts, and therefore shifted their focus from forming a consensus among local notables to establishing facts. A second rupture occurred around 1400 as the courts of individual power complexes developed their own procedural variations as a way to define legal customs more clearly as elements of the legal order of larger geographic regions. The second two sections are concerned with declaration procedures in manorial courts. Here the main problem is the relationship between oral procedures and the written production of the Weistümer, which began to increase only in the fourteenth century. The research on declaration procedures in manorial courts relies mainly on Weistümer8—an approach that is as obvious as it is problematic. On the one hand, Weistümer claim to reproduce oral legal declarations more authentically than any other genre of document. On the other hand, precisely this claim to representation places the documents under the suspicion of recording oral legal declarations in stylized form. Such stylization can be examined through the use of court decisions and deposition records, for it is here that declaration procedures, their participants, and their courses of action are described from other perspectives.
From Consensus Formation to Fact-Finding
Before taking up the discussion of changes in witness deposition procedures, a few remarks must be made concerning who actually conducted the witness depositions. Only local manorial courts had declaration procedures at their disposal, but they, along with church courts at all levels and the regional courts of great nobles or communal lordships, initiated witness depositions. Furthermore, unlike declarations, witness depositions were also used outside of court proceedings. Three basic types can be distinguished, according to their basic arrangements. The first type consisted of examinations that the court conducted at its own initiative, in which examiners asked a series of witnesses the same set of questions about the laws involved before they pronounced a decision in a case.9 In the second type, the court conducted a separate deposition for each of the two parties in the dispute, which could propose the witnesses to be consulted and the questions to be put to them.10 In depositions of the third type, courts were not directly involved. Instead, ecclesiastical and lay holders of lordship commissioned someone to conduct a deposition about the rights they claimed. In the documents thus produced, the one who commissioned the deposition sought to legitimate his claims in light of legal and extralegal forms of conflict negotiation.11 These three types coexisted during virtually the entire chronological period under study here, with the exception that the second type is attested only from the beginning of the fourteenth century onward. The deposition types were all fundamentally subject to the same procedural developments that will be addressed in the discussion that follows.
Consensus-Oriented Procedures of the Thirteenth Century
The oldest deposition procedures in the region under study are from the beginning of the thirteenth century. They exhibit a marked similarity to the enquêtes par turbe that spread through the kingdom of France at the same time.12 In order to clarify disputed legal regulations, approximately a dozen witnesses were summoned. These witnesses conferred with one another and formulated a collective, definitive statement of the regulation to be defined. This procedure was used, for example, to clarify regulations for the use of woods and meadows,13 lordship and jurisdiction rights,14 claims to taxes and dues,15 and rights of patronage over churches.16 The consultations followed the framework of a court or arbitration procedure, and thus their results were not recorded in a separate document but rather were included in the records themselves, which the court issued along with its ruling. Usually the names of the consulted witnesses were included, but not what each individual had said. Instead, the scribe recorded the final result at which the group of witnesses had arrived together.
In many cases, the rule defined by the witnesses applied so specifically to the case in question that their statement already anticipated the decision of the court. An example of this is provided by the official court decision charter recording an arbitration hearing that was adjudicated by members of the lay and ecclesiastical elite of the Bernese Oberland in 1239. This panel decided a dispute between the cloister of Interlaken and the knight Heinrich von Wimmis over the regulations governing the use of a fish pond. The court record describes how the disputants together swore in and consulted ten specifically named witnesses from the region. The conclusion of their statement is introduced by the words “All of those sworn in said …” (“Hii omnes jurati dixerunt …”) and appears to be the verdict itself, which is followed only by the closing formula in the records. Numerous records of the thirteenth century follow this pattern. The remarks of the adjudicating officials are preceded by “from the account of [there follows the list of witnesses] I discovered” (“… ab ipsis relatione cognovi …”); “we established through reliable witnesses that …” (“… invenimus per testes fideidignos quod…”); or a remark that the decision was approved “by the advice” (“de consilio”) of witnesses.17
Although the regulation being stated was contested between the parties, and the witnesses often had to take an oath to tell the truth, the records give scarcely any details about how the witnesses justified their statements. They neither say that it was according to old or godly regulations nor list examples of the regulations being followed on previous occasions. It was virtually impossible to disprove statements made in this way. How the witnesses arrived at their collective statements doubtless varied greatly, and we have only fragmented evidence of the procedures. For German-speaking regions there are a few examples in which seven witnesses agreed on a statement and seven other witnesses unanimously swore to its correctness.18