the second, the two switched roles. The bailiff now verified what he had heard while acting as the judge who interrogated his own lord.48 The judge of the village court of Krattigen did it all very differently. He made a declaration regarding the disputed legal situation in the name of all those in attendance, although he then had four other residents give endorsements to his statement.49 The principle of consulting witnesses individually, which had been widely observed since around 1300, appears to have become more lax in this type of inquiry; instead, local notables once again took part in the inquiry. This process bears some resemblance to inquiry methods from the early thirteenth century, but it can scarcely be explained as a survival of the old procedures. For in spite of their differences, all these inquiries were consistently based on one innovation that had been implemented since the fourteenth century: the witnesses now had to give statements not directly about the valid law but rather about indications for its existence. The delegates who were examined by the local courts filled a need that was characteristic of the late fifteenth century: identifying laws as a characteristic of territorial unity.
Witness deposition inquiries to verify that legal regulations were accepted throughout larger geographic regions had to take account of the legalpolitical structures of those regions. Geopolitical relationships like those in the region around Lake Thun, where the consultation of 1478 was undertaken, could be encountered in large regions of contemporary Europe: in one legal form or another, all the relevant villages and small lordships were subject to the same overlordship—in this case that of the city of Bern, whose court had the final decision in cases of dispute. Large parts of the judiciary and the local courts, however, were in the hands of various small lay and ecclesiastical lords who practiced local law. These lords could easily have taken it as an infringement of their jurisdiction to have their subjects interrogated as witnesses by the commissioners of the centralized authority, the city of Bern. Such tensions could be avoided by the delegation of the inquiry to the courts of the local lords. The recording of the results of the inquiry in a series of locally produced charters shows the topography of power within the region in which the investigated law had to be recognized.
How Witnesses Became Advisors
In the Pays de Vaud, too, witness deposition procedures aimed increasingly at the verification of unwritten rules that could claim validity in large geographic regions. Here, however, this development took place under the auspices of a lordship administration that, by comparison to the territories of the German-speaking cities, was strongly centralized and had largely eliminated local lords. Nonetheless, as mentioned previously, inhabitants of Vaud still claimed the privilege of being judged according to their own legal customs.50 This raised new problems, as litigating parties increasingly took appeals from their local courts to the central Savoyard courts which, since they mainly practiced learned law, were scarcely familiar with the customs of regional courts. Before the central court, litigating parties from Vaud could not only call on unwritten laws regarding lordship and jurisdiction but also claim that their consuetudines incorporated specific rules regarding procedure, inheritance, or civil law. The personnel of the local Vaudois courts could themselves take a stance on such claims, because they appeared before the central territorial courts of the Savoyards as participants in a specialized regional body of law that needed to be investigated and made explicit with the help of experts from the region.
The territorial courts demonstrably drew on notables from Vaud for this purpose from the middle of the fifteenth century.51 In 1437 witnesses at an inquiry described a procedure that had not been practiced for several years but in which several witnesses had formerly taken part. According to their recollections, when the Savoyard ducal council heard a case from Vaud, it issued a written summons to particular people from several cities in Vaud, mostly well-known nobles or notaries. These individuals then took part in the court procedure and described how a given question would be decided by their local courts. The notables conferred with one another before one answered on behalf of the group. This process was especially emphasized at the inquiry in 1437. The documents state that those who were consulted in the earlier procedure had not been interrogated but rather had been speaking as counselors and experts (“non … per modum examinis, sed ad consulendum et informandum animum iudicis”). Their duty had consisted of giving their opinio.52 Since the witnesses attended the entire procedure, they had the opportunity to express their views on each legal practice that became relevant during the court procedure.
Over the course of the fifteenth century, the method of rigorous individual interrogation was adopted by the counselors of the central Savoyard court as well. The first recorded instance of this, in 1430, was a hotly contested attempt to subject ten individuals called as counselors to the Savoyard central court (notables from cities in Vaud, namely Moudon, Vevey, and Lutry) to individual interrogation.53 The court was to rule on a conflict over jurisdiction rights in the city of Lausanne which raised complex procedural questions.54 Among those summoned for this case were several high officeholders, some of whom bore noble titles or at least were licensed notaries.55 Most of these men had apparently also been summoned for earlier court procedures at the territorial court.56 In contrast to what had been the usual practice until then, they were denied entry to the actual court proceedings. Instead, the commissioners of the court intercepted them at their lodgings. There they showed the men a list of nine articles that described some of the procedures of the two conflicting Lausanne judges. The notables were required to speak to their legal validity in individual interrogations.
Most of the nobles refused such individual questioning as a breach of their ancestral right to confer among themselves. To begin with, they doubtless perceived individual interrogation—to which only peasants were subject at the time—as a curtailment of their opportunities to participate in the definition of the law. Additionally, they argued that one cannot answer questions about what is just without hearing both parties and their arguments at a designated place and time.57 Apparently the witnesses resisted isolating unwritten legal rules from the context of a concrete court proceeding and making it a static body of knowledge as opposed to a somewhat more situational reflection.
The Savoyard court jurists appear to have decided to defy such conventions. From the 1430s onward, the Savoyard courts regularly carried out individual interrogations of notables in order to clarify ever-broader aspects of a legal regime that would be binding for all of Vaud, regarding, for example, courtly procedural regulations,58 the standards to which official documents had to conform in order to be accepted as evidence,59 or aspects of inheritance, contract, and credit law.60 Gradually, the courts also widened the range of legal customs that they assumed could be objectively delineated through individual interrogations. The resistance of those consulted is no longer visible in subsequent records. The procedure was also modified from the approach documented in 1430. First, the court no longer summoned its witnesses to the center of territorial administration but rather sent commissioners from one city in the Pays de Vaud to another, to consult them in their places of residence. Second, the commissioners no longer showed the witnesses the court case itself but rather asked about evidence for the relevant general legal rule. To this the witnesses often stated their opiniones as they had earlier in the territorial courts, in that they related, for example, how they would decide a contested question if they were confronted with it as a judge or sworn member of a local court.61 But the commissioners were no longer content with such statements of opinion. The new procedure required the reporting of facts. Thus the commissioners asked again, insistently, about which court the witnesses knew of in which such a case had actually happened, who the judge was, who the parties were, and in what year, month, and day this had taken place.62 As mentioned before, individual local lordship rights were now also elements of a common legal order created in the context of a procedure that assumed unwritten law could be reliably defined on the basis of factual evidence.
Regional Customary Law: An Assumption Underlying New Procedural Forms
The standardization of procedure made possible inquiries in which commissioners investigated both the particular rights of individual lords and the commonly applicable
