hand, the repetition of legal declarations did not itself guarantee uniform views about valid law. In one case recorded in 1435, the witness deposition about the rights of the millers of Dielsdorf to the water in the stream reveals particularly divergent memories of the manorial court’s declarations. At one end of the spectrum stood the statement of a former sub-bailiff, according to whom the millers could use the water “as often and as much” (“so oft und viel”) as they wanted.114 Others said that they had heard the more restrictive regulation that the millers could use the brook, but one-third of the water volume must always be allowed to flow past the mill through the village.115 A few reported that the millers were entitled to this water volume, but only on Saturdays and on the eves of the name-day feasts of the twelve apostles.116 Lastly, one witness said that, according to the declaration of the manorial court, the millers could not divert the water into their mills at all without obtaining the express permission of the village.117 Depending on the matter, even smaller discrepancies among the witness statements could make it very unclear what rule actually had been declared by the manorial court.118
The memories of legal declarations were not contradictory only on the basis of faulty memory; some witnesses had “lapses of memory” or adjusted their statements out of loyalty toward or fear of one of the disputing parties. The witness Hensli Schuhmacher provided another reason when he said that “what they pronounced in one year, they did not pronounce in another.”119 In other witness depositions, too, witnesses cast doubt on the validity of a regulation by saying that these had first been declared at the last manorial court assembly—or conversely, had not been declared for the last few decades.120 Clearly, legal declarations themselves contained noticeably different variations in content from one time to the next. In practice their great significance seems to have rested less on the claim to pass on legal knowledge unaltered than on the claim to guarantee the application of regulations to present conflicts. It is now necessary to explicate this more closely.
Circumstances
That the contents of the declarations vary has much to do with the immediate causes for the declaration ceremonies. Demonstrably, the manorial courts of many lordships were often not called for years, sometimes decades, at a time.121 In other places, the actual solemn manorial court, summoned two or three times annually, can scarcely be distinguished from the sessions of a local court summoned only as needed (but usually more often), in which only a few sworn representatives and the judge had to take part.122 At the manorial court infractions of the regulations were prosecuted; disputes over boundaries and inheritances were decided; property exchanges through sale, pawn, or inheritance were made public; and the maior, herdsmen or foresters were installed in their offices. In many places, representatives of the lordship collected fines for infractions of the rules from inhabitants, in addition to regular dues, which were often to be paid at the assembly.123 All these activities could entail controversy over what local law prescribed.
When questions about the law were raised, the primary aim was not necessarily to recall what norms had previously been declared but more likely to reach an agreement in the present conflict. The numerous extant charters that were issued regarding the declaration of a specific regulation at the manorial court give at least as much insight as Weistümer into the practice of legal declarations in the manorial courts, though they are scarcely acknowledged in the research. For the rural court of Buchsgau, the first real extant Weistum that lists a comprehensive catalogue of regulations is from the fourteenth century. Yet there is a court record from as early as 1286 that records a single regulation declared by the rural court of Buchegg when the abbot of the cloister of Trub asked how long one must possess another’s plot of land without objection before one’s possession of the land is considered uncontested.124 Countless documents from the fourteenth and fifteenth centuries similarly recorded individual regulations that manorial courts had declared: for example, on a village’s meadow-usage rights, on the amount of the fine for a specific offense, or on the prohibition of marriage between dependents of different lords.125 Legal declarations in such contexts were less reiterations of a stable body of laws in a ritual that was clearly set apart from the other activities of the manorial court assembly (such as litigation or the publication of transactions) than clarifications of regulations that were carried out on a case-by-case basis during such activities.
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
