Such procedures are reminiscent of the jury trials of the early Middle Ages. Janet Nelson said of these, in a summary of Karl Kroeschell’s observation, “Law in the early Middle Ages was what experienced men declared to be and used as the law.”21 Unlike the case in jury trials, valid law in these instances was defined by people who were explicitly identified as witnesses and thus were clearly differentiated from the actual members of the court.22 Courts delegated to such groups the duty of defining the applicable rules in a dispute and thereby relinquished to them a great deal of their discretionary authority.
In contrast to the declarations of manorial courts, it was not the dependents of a particular lordship who participated in such witness depositions but rather mostly high-ranking persons with noble or knightly titles. A dispute over jurisdiction in the region of Emmental in 1236 was decided by an arbitration panel that included two priests and five knights. They consulted as witnesses around fourteen men for whom no titles were given, but also four other priests and eight other knights.23 In the witness deposition from 1263 about the causes for which the Cluniac priory of Romainmôtier could levy special fees (aides) on the inhabitants of the village of the same name, they consulted, among others, two free nobles (Edelfreie) and two knights, as well as two priests, a deacon, and the priors of no fewer than four cloisters in the area.24 Generally, clerics appear with similar frequency as witnesses in legal witness depositions of the thirteenth century.25 The prominence of the witnesses consulted indicates that the witness deposition procedures of the thirteenth century were aimed not least at involving a wide circle of ecclesiastical and lay notables of the area in the process of delineating local law.
Changes around 1300
There were countless short-lived experiments with new ways of conducting witness inquiries about unwritten law, often tailored to a specific occasion. But apart from this, a substantial change took place between 1270 and 1300 that modeled proceedings increasingly on the principles of Roman-canonical procedure. In the new form of inquiry, the old procedure was fragmented in three ways. First, court inquiries were increasingly separated both temporally and spatially from the actual court hearings. The judges appointed commissioners, who consulted witnesses in their places of residence. Second, the collectivity of witnesses was dissolved. Instead of meeting together, the witnesses were now each sworn in individually and consulted separately from the others (“secrete”) in individual interrogations. Third, the commissioners no longer asked the witnesses only a few direct questions about declaring the disputed legal regulations but rather divided the subject of the examination into separate questions or articles. The results of the consultation thus no longer constituted a single formulated statement on which the witnesses had agreed, but rather several statements that could diverge more or less from one another.
An early example of the third change and the shift to an inquiry that included more separate questions is a record created in 1296 at the order of the counts of Savoy. They wished to clarify their lordship relationships around Lake Geneva, where they had founded the town of Morges a few decades before. In fact, the first question concerned the overall legal situation for which the inquiry sought evidence, namely that the House of Savoy had direct lordship (dominium directum) over the area. The witnesses, however, had to answer additional questions in their individual interrogations. The second question was whether the area belonged to the castle Vufflens; the third concerned the exact legal form of this affiliation and whether the city lay within the seynoria of Vufflens. Finally, the witnesses had to specify the nature of the Savoyard claim to Vufflens and answer whether this lordship was a tenure that could be bestowed on local nobles and which was required to be regularly renewed.26
Such questions could be multiplied almost endlessly. An inquiry about the rights to use the forest on the shores of Lake Brienz likewise contains four questions.27 This trend was taken even further in a witness deposition from 1312 concerning the right of presentation to the church of Hilterfingen, which is composed of no fewer than twenty-seven separate questions or articuli.28 The first and the last questions on the list would be asked during most later witness depositions: the witnesses had to state their personal information (age, place of residence, and lordship affiliation) and give information about the representativeness of their statements: they were to confirm that these facts were public (manifestum) and well-known (notorium), that they reflected common talk (vox et fama). In such procedures, the witnesses were no longer required merely to pronounce lordship rights but also to justify them.
During this time articuli that were asked directly on normative statements were noticeably pushed to the margins and in the end disappeared entirely. A late and accordingly significant example is provided by a witness deposition from 1397. It concerns a dispute between the lord of Oron and the bishop of Lausanne. Under debate was the boundary between the jurisdictions of the two lords. The questions no longer required simply an explicit description of this boundary.29 Instead, the witnesses were required to recall events such as imprisonments, executions, and confiscations by officials, which could indicate the regular practice of lordship rights in the contested area. Large parts of the witness statements were concerned with a rather crude indicator of the practice of lordship rights—the right to hunt and to claim the skins of dead animals. The deposition contains scrupulously exact statements about when, where, and by whom a dead animal had its skin removed and taken to the castle of one of the two lords. Numerous witnesses recounted their memories of the price paid for the hide of a brown horse that had broken its leg on the village bridge.30 The lord of Oron did not want to keep the hide of an ox himself and sold it to the person who brought it in for three pennies.31 More to the taste of the lord was the boar’s head (mentioned almost as often) with which a peasant named Leysin dutifully came and knocked on the castle door.32 Such a method of inquiry shows the way in which unwritten legal rules had a quasi-objective existence before their definition in court procedures; they were applied in everyday activities and thus could be ascertained in the same way as facts.
This type of procedure produced the witness deposition records that provide such a detailed insight into the daily practice of lordship. Indeed, when the witnesses on occasion formulated actual rules, they now clothed even these in facts. They thereby claimed not to have articulated the rule themselves. They described bygone occasions that allowed them to place a normative statement in the mouth of a third person as a quotation. Such statements aimed to recount everyday speech about the law and to identify the knowledge of the cited rule as a product of everyday activities.33 In a witness deposition from 1437 about a wine crop claim advanced by the lords of Blonay, one witness remembered how his sister had been married in the territory of Blonay. He went there to help her with the wine harvest. In the evenings, he was appalled to see that officials of the local lord came to take away part of the painstakingly gathered crop. He asked his sister and—perhaps because he could not believe her—also his brother-in-law how the officials were able to do this. Both explained to him the right of the lord, which he now repeated back to the commissioner.34 The delineation of valid law appears here as a problem of ascertaining facts about the daily activities and obedience of the people.
Whose Truth?
As a consequence of the new functions of witnesses, their number and social status changed. While in the thirteenth century there were seldom many more than a dozen witnesses included in a witness deposition procedure, the commissioners of the fourteenth century more often aimed at numbers of around forty. This is in accordance with the maximum number of witnesses that a party in a canonical civil procedure was allowed to call.35 Now more people were consulted whom the documents described as “peasants,”36 while often a village priest was the highest-ranking witness.37 However,