in Grüningen, the aforementioned Old Lehmann. Many of these men held lordly offices.133 Sometimes the lord himself declared the law. Thus in 1374 the local lord asked the court assembly of the village of Ringgenberg on Lake Brienz that he be allowed to declare the law on the descent from the summer pasture in the mountains, and the assembly assented.134 The need to come to an agreement about who should declare can itself indicate that the person to whom this duty fell—or to whom it was eventually attributed in the documents—could depend on the subject of the current inquiry.
Regardless of who had instituted the declaration ceremony, the usual assembly participants subsequently had the opportunity to raise objections to the formulations. According to some Weistümer, this procedural step was to be repeated for each and every clause throughout the transcription of whole series of regulations. This stage could involve fierce exchanges between conflicting interest groups, as was characteristic of manorial courts. Weistümer give at best vague instructions about the procedures through which the opposing interests were to be aligned with one another during declaration ceremonies. The Weistum of Romainmôtier, however, is among the few that explicitly state that no participant in the manorial court assembly may speak without permission of the lord.135 Yet despite the stipulation, found in a few records, that a regulation declared in the manorial court must receive either unanimous or majority approval,136 democratic forms of decision-making cannot be assumed.137 In this regard, the manorial court was fundamentally not much different from the better-researched urban councils and citizen assemblies of the same period. Like these bodies, declaration assemblies could be governed by ideals of rigid hierarchies and unequal rights of participation, and they could exhibit a notably authoritarian influence.138
Declaration ceremonies did not inevitably result in universally applicable regulations. Often individuals requested exemptions for themselves. During the declaration ceremony in Pully in 1368, a representative rose to claim that the obligation to taxation being proclaimed might very well be valid for others but he and his ancestors had been exempted from it from time immemorial.139 The Weistum of Appels from 1327 begins with a list of local residents who complied with the established regulations declared at that time and recorded in the subsequent text. A note appended to the last two names, however, indicates that these residents had obtained exemptions from individual regulations for themselves on the evidence of privileges owed to them.140
It seems to have been particularly important that the authoritative local actors who were personally concerned with a regulation approve it during the declaration ceremony. This was emphasized by witnesses who recounted their memories of declarations during court procedures. For example, witnesses in one case cited the rule that had been declared about the placement of sluices in the stream, pointing out that the millers had not opposed it.141 They remembered a declaration regarding the division of jurisdiction between the territorial lord and the steward, and added that the representatives of the steward had been present at the time. They described how the local lord had given his assent to the inheritance rules as they were declared.142 In such statements, the declaration procedure appears not as a legislative process by a general, authoritative corporate body, but rather more as an arrangement of various agreements between the concerned individuals, groups, and corporate bodies.
The Use of Writing
The common perception that oral declarations were the forerunners and functional equivalents of written Weistümer is misleading in that it tends to gloss over the fact that at times written documents were used alongside the oral declarations at the manorial courts. The witnesses’ declarations in the manorial court did not necessarily serve as recollections of legal content that was not available in written form. Often the participants in such procedures relied on written records as well.143 In a witness deposition from around 1325, witnesses from the village of Rüeggisberg near Bern reported how, in the local manorial court assembly, the representatives of the manorial lord as well as those of the steward compared oral declarations with the contents of scrolls they had brought with them. Legal declarations often began with someone reading “in a loud and understandable voice, word for word” from a parchment list or slip of paper. In such cases, the participants in the court assembly were subsequently asked questions about what had been read.144
Such records were more personal mnemonic aids than authoritative representations of the declarations, for the written formulations could be revisited by the manorial court and amended according to still unwritten regulations. Thus the manorial court of Döttingen in 1398 conducted an inquiry about the “consuetudines, privilegia, jura, proprietates” that a representative of the lordship had read out from a parchment scroll. As the Weistum put it, a transcript consisted of regulations that had been partially written down earlier, partially drawn from memory, and partially agreed on due to current circumstances, and they were now confirmed “in the mode of innovation, renovation, or imitation.”145 It is in the sixteenth century that we find the first substantial evidence that legal declarations at the manorial court approximated the acts of homage, by which officials always read out the same version of a Weistum as a binding statement of the law without allowing debate over its revision and confirmation.146 In contrast, the earlier declaration procedure resembled the proceedings at annual urban citizens’ assemblies, at which secretaries read out individual statutes established by the city council along with charters of privileges, some of them generally applicable, some of them granted on a case-by-case basis. Cities also debated whether, in a given inquiry, old determinations should be repeated or new ones adopted.147
Representatives of lordships, in particular, presented written documents originating from entirely different contexts when they attended legal declarations at manorial courts. In 1459, at the manorial court of Seftigen, the provost of Amsoldingen protested against the declaration of boundaries for his own lordship district by submitting charters from his chapter.148 In Weistum texts themselves, regulations were sometimes justified by appeal to old charters, land lists, and interest records.149 Through the submission and approval of regulations from memoranda, charters, and land lists, provisions were incorporated into Weistümer that had their origins not in declaration ceremonies but in quite different contexts for the delineation of law, such as in agreements between lords or in the privileges of a territorial lordship. In Chapter 4, we will see in greater detail that the contents of Weistümer as a whole often came into being only in very loose connection with the business of the manorial court. There we will also discuss the fact that the recording of Weistümer in many cases had less to do with conflicts at a local level than at a level higher up in the lordly hierarchy, sometimes reflecting the local officials’ needs to document their rights before the court of a territorial lordship.150
In the end, how can we assess the relationship between declaration ceremonies (Weisungen) and the records about them (Weistümer)? Although Weistümer editors sought to establish continuity between them and oral declarations at the manorial courts, historical analysis must also focus on the overlooked ruptures between them, for Weistümer neither incorporated only regulations passed down through oral declarations nor perfectly depicted the declaration procedures. Charters and witness deposition records allow us to correct the image of manorial court assemblies in several respects. First, declaration ceremonies settled disputes not only between a lordship and its dependents but also in the most diverse of constellations: between dependents, between lords and their officials, between rival lords, and so on. Second, the delineation of laws at manorial courts was mingled closely with their practical implementation and thus was not very stable. Written records of Weistümer served a very different purpose. These aimed less at the immediate implementation of law than at its long-term stability, which required strongly stylized depictions of the manorial court. In Weistümer, legal authority could not be attributed to the diverse and changing actors who actually agreed on and practiced the law. Instead, the local order was depicted in an authoritative, almost constitutional abstraction as a “timelessly” valid relationship between a superior and a clearly separated set of inferiors, between a lord and the totality of
