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, by no means did all the “peasants” who were interrogated belong to the lowest social classes. Many of them held lower manorial offices or were tithe tenants, and are therefore best described as the peasant ruling class.38
Significantly, the first examples of witness deposition records that divided the disputed question into many articles also included statements from numerous specialists in the learned law who had studied at the universities of northern Italy.39 Under their influence, forms of inquiry modeled on the example of Roman-canonical civil, defamation, or inquisition procedures—which had spread north from southern Europe across the Alps in the middle of the thirteenth century—found their way into witness depositions about local legal customs. In such processes, the witnesses had to declare assent to or denial of the assertions expressed in individual points or articuli.40 According to the same process, the latitude given to those questioned in procedures for law-finding was restricted to assenting to or contradicting a series of points about the alleged legal situation.
The inquiries thus modeled themselves on the Roman-canonical process of a distinctive division of labor among the witnesses, who reported mere perceptions, and the judge, who drew legal conclusions from them.41 The methods for establishing laws and facts were so similar that in some cases they blend into each other.42 In the course of the fourteenth century, the new procedure for the production of legal documents was accepted in rural areas throughout the entire area in question, as well as by such holders of communal lordship as Zürich, Bern, and Luzern. In the sixteenth century these procedures became the standard for the supreme court of the Holy Roman Empire, the Imperial Chamber Court (Reichskammergericht), which pronounced judgment on and thus sometimes decided which legal customs had validity in the relevant regions.43 The understanding of legal custom was fundamentally altered by the adoption of this procedure. The truth of the witnesses’ statements no longer was authenticated simply through their oath, their reliability as persons, and their consensus, but rather was accessed through the comparison of details in the statements of different witnesses. The objects of such hearings were no longer legal rules. In fact, the impetus behind such procedures was the assumption that legal rules could be ascertained, proven, and known in the same way as facts.
Innovations of the Chancelleries
In the fifteenth century the greater territorial lordships began to conduct witness deposition hearings that no longer investigated merely local legal relations but rather aimed to ascertain rules that could claim validity in their entire territories, or at any rate in large subdivisions like bailiwicks, counties, and districts. Thus the procedures began to distance themselves from the model of Roman-canonical processes. The commissioners often now exceeded without a qualm the maximum of forty witnesses dictated by canon law. In a 1484 witness deposition carried out at the order of the court of the city of Constance, for example, no fewer than 349 witnesses appeared on behalf of one of the parties.44 In addition, the chancelleries adapted the inquiry procedures to the topography of lordship within their territories.45 In what follows, two of these special developments will be presented. A first section is on new ways of conducting witness depositions developed by the territorial administration of cities such as Bern and Zürich. These cities increasingly integrated the local courts in their hinterlands into witness depositions. Second, several sections will follow on the modifications that the Savoyard courts earlier had introduced into witness deposition procedures, for they show with particular clarity how the focus on regulations that would be valid throughout ever larger unified geographic regions resulted in broad changes to the understanding of unwritten legal customs.
Local Courts and Cities’ Territorial Lordship
Beginning in the mid-fifteenth century, the courts of the confederated Swiss cities with large territories gradually ceased using only itinerant commissioners to gather witness depositions. Instead, either the court or the litigating parties asked several local courts in villages or towns within the city’s territory to interrogate witnesses about the applicable law. The local judges then consulted witnesses who were under their jurisdiction and had the results recorded in the form of charters that they themselves sealed and then sent to the central authority.46
For example, around 1478 the cloister of Interlaken presented a series of witness depositions in the form of charters before the court of the city council of Bern (Ratsgericht). With them, the cloister hoped to defend its area of legal jurisdiction against the claims of the neighboring town of Thun. In preparation for the court inquiry, the provost of the cloister had called on the local courts of small local lordships such as Aeschi, Unspunnen, Krattigen, Spiez, and Interlaken and requested that their judges consult witnesses who lived in the area. The judge of the court district of Interlaken, which included the cloister itself, had issued four different charters over two days in order to establish separately the statements of each hamlet that belonged to the court’s territory: that is, one each for Flüeh, Leissigen, Habkern, and the principal village of Interlaken itself.47 In general, places of residence rather than individual witnesses are the most prominent primary units of examination in such inquiries.
All the consulted local courts asked the same questions, which were formulated by the provost, but apparently they could avail themselves of very different methods in doing so. To establish the statements of the two most prominent witnesses from the small territory of Unspunnen, for example, they produced two different charters. In the first, the local lord appeared as the issuer and judge, who consulted his bailiff as
