court case. Thus the witnesses fell into two differently composed social groups, each of which had to answer its own series of questions. In the first group, peasants from the place under discussion were interrogated. To them, the commissioners posed almost exclusively questions about evidence for the validity of a disputed local lordship right. In the other group, high-ranking witnesses were asked about the validity of applicable regulations of procedural or civil law; this group included free nobles, knights, notaries, and high officials of the ducal administration such as bailiffs, castellans, judges, and tax commissioners. These individuals did not come from a single place but rather represented all the large cities of the territory.63
In a case from 1437, for example, members of the noble families of Blonay and Champion disagreed over local lordship rights in the vicinity of the town of Bulle. The Blonays claimed that their ancestors had exercised these rights without interruption until they were forced to temporarily cede these as collateral to the Champion family, to whom they had become indebted. Their debts had since been satisfied through the annual proceeds of the lordship rights. According to the legal custom of the region, the lands should therefore have been restored to the Blonays by the creditors. The witness deposition with which the Blonays sought to establish their position was divided into two parts: in the first, people from the relevant villages stated whether the ancestors of the present Blonays had exercised the contested lordship rights uninterrupted until the cession.64 In the other, notables from all the Pays de Vaud were consulted regarding the relevant credit law.65
To a certain extent, the allotment of specific questions to members of different classes indicates group-specific ranges of experience. Local inhabitants were in fact especially well acquainted with the details of local lordship rights. In the same way notables, who regularly took part in pronouncing legal decisions as jury members, judges, and notaries, could most easily make judgments about principles regarding unwritten regulations of procedure and civil law. Nonetheless, many peasants could doubtless have given answers to many of the questions that remained reserved for elites, such as methods for the restoration of pledges, on the basis of their own experiences. The bifurcation rests on the fact that inquiries concerning particular and universal aspects of the law had grown into two separate procedures. Indeed, it remained a bifurcated process in the fifteenth century, although inquiries of both types were now undertaken using the same investigative techniques. The division of the witnesses also contributed to the characteristically early modern trend of dividing the people into ranked groups equipped with different political responsibilities and legal competences. Thus there appears to be a connection between two concepts that arose at this time: that of a unified customary law, albeit divided into different domains, and that of a unified territorial population, albeit divided hierarchically into ranks.66
The spread of the new procedure was a component of a broad change in the cultural perception of legal custom. It was hardly a coincidence that the first extant attempt of a Savoyard court to define universally applicable rules by means of individual interrogations fell exactly in the year 1430. In the same year, the dukes of Savoy issued the Statuta Sabauda, the first broad territorial law code intended to be valid in all their territories. In the Pays de Vaud this claim to validity would later have to be rescinded under pressure from the local estate assemblies, which insisted that the people of Vaud maintain the privilege to be judged according to their own legal customs.67 Nonetheless, even here interaction with unwritten legal rules changed as a result.
The jurists of the central territorial court understood Vaud’s legal customs by analogy with territorial law, which was valid in the entire region, or with the jus commune in which they were trained. Such jurisperiti crafted ever more elaborate and complex interrogations in the course of the fifteenth century.68 They increasingly aimed at placing a given regulation in a coherent framework of norms. Thus a witness deposition about the criteria of validity for testaments, for example, could also deal with wide-ranging related questions concerning restrictions on the freedom of testators, inheritance law itself, or the features of legal documents in general. It could also raise such fundamental questions as what was understood by the term “tenant” or “appurtenance”69 in a given region; what meaning was assigned to concepts such as “manifest” or “notorious”;70 or what was meant by a consuetudo as such.71 Such activities clearly indicate that the legal customs under investigation were considered components of a comprehensive, systematic set of norms, a customary law. Such a system can really only be thought of by analogy to a written collection of laws—as an unwritten law book, so to speak.
The procedure itself assumed that a rule, to the extent that it could really be claimed to have validity, must be part of a coherent system of regulations for Vaud and that knowledge about it must be traceable throughout a broad region.72 Many factors may have contributed to the development of the concept that there was such a regionally unified customary law. To some extent, the different local legal expressions of the Pays de Vaud may well have undergone some actual standardization through the increasingly intensive territorial lord’s administration.73 Certainly the new witness deposition procedure made the concept of a regionally unified, unwritten legal system feasible in an area where previous practice had apparently not produced any regional unification.
Customary Law as Expert Knowledge
In the course of the later fifteenth century, Savoyard witness deposition procedures in the Pays de Vaud increasingly concerned themselves with gauging the competence of the witnesses in legal matters. This partially expressed itself in witness deposition records that included ever more detailed information about the personal identities of the witnesses. Starting around 1300 records of questions noted not only the name but also the place of residence, age, and rank of each witness.74 Beginning in the mid-fifteenth century, the witnesses’ level of knowledge was also considered. Witnesses now had to state whether they could read and understand Latin or describe the court in which they had gained their experience as judges. In addition a question that probably baffled as many witnesses as it does modern readers was included, namely whether the witness was a consuetudinarius.75
The concept of a consuetudinarius appeared in regional sources from the middle of the fourteenth century at the latest. The term describes almost anyone who took a specific role in a court proceeding, namely as a jury member or counselor for the court regarding the definition and application of legal customs.76 When the commissioners made the question of whether a witness was a consuetudinarius into a way to establish his personal identity, they gave this concept a new meaning. They implied that one could be a consuetudinarius apart from one’s role in a current court case, in the sense of a personal qualification as a specialist in consuetudo. Many witnesses were apparently surprised by this new usage of the word. They shied away from making a definite statement with the necessary clarity. They said, for example, that they were accustomed to speak about consuetudines and to use (“practicare”) them in court, or the reverse: that they had had little occasion to take part in law-finding.77 For many the status of consuetudinarius was bound up with the practice of a specific office in which one was obligated to advise about legal customs. Thus one noble said that he was at the present time no longer a consuetudinarius, but that he had been one when he had held the office of castellan in the Pays de Vaud.78 Other witnesses adopted the commissioners’ understanding of the term to some extent, saying that they were “a little bit” (“aliquantulus”) consuetudinarius.79 One witness said he had heard a legal regulation quoted by consuetudinarii as well as populares. Reflecting precisely the commissioners’ distinction, he thus divided the experts in customary law from the remaining population, who were understood to be mere laymen.80
As legal customs were increasingly regarded, by analogy to written law, as a structurally similar legal system with different content, the consuetudinarius came to be seen as a variant of the legal professional, the jurisperitus, to whom an alternative set of standards applied. Many witnesses who described themselves as consuetudinarii stated that they
