of the identity of consuetudinarii were expressed when they were explicitly compared to university jurists. One such comparison was made by a knight named Barthélémy de Saint Martin, who was consulted as a witness in 1470. He unambiguously described himself not only as a consuetudinarius but also as a doctor in both canon and civil laws. When asked where he gained this knowledge of legal customs, Barthélémy listed more than thirty nobles, high officials, and notaries by name as guarantors, saying they were not only great consuetudinarii but virtually “doctors of custom” (“doctores consuetudinis”).82 He further remarked that consuetudinarii, unlike jurists, did not concern themselves with ritual formulas. They also avoided such expressions as “if it be the case that,” “quasi,” and other subtle juristic sophistries. Consuetudinarii dressed “in popular fashion” (“vulgari modo”) and spoke in coarse Latin. In spite of this, they were highly learned in their own way.83 What Barthélémy meant by “popular” should not be misunderstood. The majority of witnesses whose knowledge of common legal customs the commissioners trusted as consuetudinarii were nobles or town dignitaries. Whoever emphasized the “popularity” of customary law and its experts alluded primarily to the contrast with learned judges.
How can we sum up the development of witness deposition procedures between the thirteenth and fifteenth centuries and relate it to shifts both in conceptualizing the law and in the socially determined opportunities to participate in its definition? From around 1300, witness depositions lost their earlier consensus-oriented character. They relied increasingly on the model of individual interrogation derived from Roman-canonical civil law and the inquisition procedures of church courts. Thus it was implied that laws could be verified in the same way that facts could. This change expressed itself clearly in the further development of procedure in the fifteenth century. In fact, this procedure varied widely from one chancellery to another, but it assumed a law that was uniformly applicable; it assumed that valid regulations had to be anchored in the knowledge of the entire people of the larger territory. On the whole, this resulted in the depoliticization of law-finding. Regulations were less and less defined by means of negotiation and instead were seen as entities that belonged to geographic districts; they needed to be discovered, verified, and known in the same way as facts.
Through the change in procedure, the possibilities for different social groups to participate in the establishment of legal order also shifted. Local ecclesiastical and lay notables, once the typical witnesses, appeared less frequently in this role after 1300. Instead, members of the peasant population were interrogated more often. Notables were later reintroduced into the procedures by the Savoyards, this time as specialists in a regional customary law that was conceived of as coherent by analogy to written law. The new procedures, however, more strongly restricted the opportunities for witnesses in all categories to influence the organization of the legal order, because their task was no longer to express an opinion but was restricted to representing a stable knowledge shared by the entire population. In contrast, the discretionary power of the officials and jurists of the central territorial courts, who interpreted the statements provided by the witnesses, widened, as will be demonstrated later.84
Since the nineteenth century, Germanists and legal historians have been inclined toward an assumption that the oral legal culture of the Middle Ages equated law with traditions that were rooted in the people of a region through a combination of narratives and customs. Paradoxically, such an understanding is most visible in the late phases of the development of procedure. First, only late procedures in which the witnesses were consulted about detailed events assumed that laws could be deduced from customary habits. Second, only late procedures were built on the presumption that unwritten laws conformed to a legal understanding that was spread throughout the entire regional population. Finally, only the model of written law helped gain acceptance for the idea that unwritten legal customs had to be investigated as components of a coherent system of norms, a customary law. Such assumptions were thus in no way remnants of an old unwritten culture. They were connected far more closely with the practicalities of learned law and the organizational needs of the new territorial lordships.
Law Declarations in Local Courts
Thanks to the Weistümer we have ample information about the process by which unwritten laws were passed down in manorial courts. These documents, which originated sporadically in the thirteenth century and increasingly in the fourteenth and fifteenth centuries, do not merely contain series of local legal regulations. They also suggest more or less forcefully that even before they were written down, their contents had been declared from memory in a formal procedure at the local manorial court assembly. Some Weistümer regulate the course of these assemblies in the form of normative instructions. Others, such as that of the cloister of Engelberg mentioned at the beginning of this chapter, preface the actual legal statements with a prologue that describes how the lord arrived at the place and called together his peasants to record the laws defined in the subsequent Weistum. It is worth dwelling on these vivid descriptions for a while, for they have made an enduring impression on the perceptions of declaration procedures in modern research.
The Depiction in the Weistümer
According to the accounts in Weistümer, manorial court assemblies followed strongly ritualized forms. The lord convened these gatherings at a given place one to three times annually, on fixed dates. The dependents were obliged to appear under pain of fine. Many Weistümer describe first the arrival of the lord and his festive reception by the peasants. Mainly Weistümer emphasize that the court assembly, in addition to the law declaration process itself, also included acts of exchanging gifts, eating and drinking together, and other forms of sociability, which could have a marked symbolic character.85 Weistümer often contrast the right of the lord to be hosted by the people of the place before and during the assembly, the so-called right of hospitality (Gastungsrecht), with the corresponding rights of the inhabitants. Many records state that the lord and his followers spent the proceeds of substantial fines on drinks during the legal assembly.86 Such ritual depictions oscillate between celebrating the preeminence of the lord over his peasants and evoking a camaraderie between them that rested on reciprocity and patriarchally influenced forms of interaction.
The pronouncement of the law was to be embedded in such rituals. Most Weistümer describe these moments much less exactly than the background events. Some Weistümer report in direct speech how lords elucidated local legal relations with successive questions (along the lines of, “Who is the lord here?”; “What dues may he collect?”; “Who may keep his cattle in the woods?”). While such Weistümer are not especially numerous, they have shaped some basic assumptions of modern research. These include, first, the idea that law declaration assemblies were there to regulate a binary relationship between the “inferiors” and their “superior,” that is, between the totality of local peasants and their lords.87 Second, declarations are generally seen as alternative media that made it possible to pass down without writing a definitive law that was nonetheless unaltered.88 Third, Weistümer give the impression that they arose from the procedures of oral legal declarations, reproduced them faithfully, and therefore in the end took over their functions and replaced oral tradition.89 Gadi Algazi summed up conceptions of such unwritten but still orderly legal traditions in the concise phrase that peasants filled the role of “living archives” of legal knowledge to which lords could refer on the occasion of manorial court sessions.90
A certain skepticism about such a depiction of declaration procedures is justified, because in most Weistümer normative and descriptive elements merge fluidly with one another. In this way, these documents present manorial courts as traditions that were static, and to some extent idealized, in both form and content. These seem oddly detached from the diversity of actual circumstances that must have provided the immediate circumstances for each declaration. This is especially evident when—in the best tradition of source criticism—one compares the picture provided by the Weistümer with the one provided by other genres of documents. Thus plentiful charters, for a long time scarcely noticed in the research, can bear witness to the concrete local conflicts in manorial courts which formed
