Weistümer legitimized the regulations they contained, which were derived from the manorial court, but at the same time, they transcended the statements that had originally been closely bound up with particular situations and persons.
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Not only were witness depositions and declarations at manorial courts very different procedures for the clarification of unwritten law; they each also took many different forms. Nonetheless, the main trends in the late medieval development of these procedures can be related to one another and to a general change in legal concepts. Both procedures collected statements from members of the middle and lower classes. This was less an expression of democratic forms of dispute resolution than the result of attempts to organize laws according to the geographic boundaries of their validity. Whereas witness depositions were increasingly used to explain regulations as components of territorial legal orders, declarations at the manorial court constituted the law of a particular place. Often they concerned the settlement of conflicts among multiple lordships and their respective officials rather than the regulation of the relationship between a lord and his local dependents.
A marked change in the cultural understanding of unwritten law is initially apparent in the witness deposition procedures. Here the chancelleries of church courts and great power complexes modeled themselves increasingly on the basic procedures of witness examination in Roman-canonical civil and inquest procedures. This development coincided with a move away from procedures that were concerned primarily with the formation of consensus among notables. In their place arose rigid interrogations based on the assumption that law involved established facts that were expressed in conventional activities and did not need to be agreed on but only discovered. In the fifteenth century further procedural variants developed that made it easier to root law, thus understood, in large geographic regions and to understand the regulations being investigated as components of a coherent regional customary law. Although this was unwritten, it was understood by analogy to written legal codes.
Declaration procedures, by contrast, underwent a much less marked change, but they were subject to new interpretations in connection to their increasingly frequent recording in written Weistümer at the end of the Middle Ages. Charters and witness deposition records show that declarations in manorial courts were mainly concerned with negotiating individual agreements between relevant notables in specific situations. In contrast, Weistümer depict this activity as a ritualized act: the pronouncement of whole series of regulations that had always been pronounced in an ancient ritual involving lords and peasants. The simplified depiction of the protagonists and the course of events of the declaration served not least to legitimate the contents of the Weistümer through an unchanging tradition that purportedly reached back to the time before their transcription.
The reorganization of the witness deposition procedure and the increased production of written Weistümer coincided with ruptures in the conception of law in three regards: in both cases, there were changes from negotiable to stable norms, from isolated regulations to coherent systems of regulations, and from a law legitimated through agreement between notables to one legitimated through the knowledge of homogeneous, geographically defined populations. The result of these developments expressed itself initially at the end of the Middle Ages, as unwritten law was increasingly equated with tradition and the awareness of the people as a whole. This conception hardly reflects a primeval or folkloric understanding of law; instead, it resulted from the adaptation of procedures for defining unwritten law to the new requirements of lordship institutions.
CHAPTER 2
Dealing with Lordship Rights
Between 1469 and 1471 Savoyard courts handled an inheritance dispute between the high noble brothers Guillaume and Hugues de Chalon regarding the small lordships of Grandson, Montagny, Belmont, and Echallens in the Pays de Vaud. Commissioners of the court interrogated approximately sixty witnesses. To determine their loyalties—according to the standard court procedure of the time—the witnesses were asked what their relation was to the two brothers in the conflict. Almost half of those examined stated that they had sworn an oath of loyalty to Guillaume before his brother had made a claim to the lordships. Two witnesses explicitly explained that they therefore preferred Guillaume rather than his adversary to win the case.1 About one in five witnesses claimed to be a friend (amicus) of his lord. Similarly, in a witness deposition from 1433, one witness stated clearly what may well have been tacitly understood in many of these claims of friendship. When asked about his relationship to his lord, he answered that he was his friend, as a dependent must be to his lord.2
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Medieval rural lordship has the reputation of being paternalistic and personal. The units of lordship that exercised everyday authority were often small and had only a rudimentary administrative apparatus at their disposal. Against this background it seems obvious that legal documents describe face-to-face relationships as the backbone of the organization of lordship. But exactly how should one imagine the personal relationships that were constitutive of lordship? This chapter examines how actors experienced their local lords, and lordship in the abstract: how they made agreements about lordship rights, and how they dealt with them in everyday life. It thus attempts to clarify the relationship between everyday lordship and the conventions of its description in legal documents. How everyday, truly, were the customary laws that were ostensibly derived from peasants’ everyday activities?
Late medieval records of local laws such as Weistümer and charters describe local and especially rural legal regulations predominantly in the form of lordship rights. Primarily they define the dependents on whom a lordship could impose requirements of particular dues, labor obligations, or obedience. Restrictions on the rights of a lordship arose primarily from the rights of others.3 Most people were subordinate simultaneously to different lordships that exercised qualitatively different rights. In medieval legal documents local networks of the reciprocally defined claims of legal entities, who are described either as “lords” or as “dependents,” appear as the rural legal order.
Especially in German-speaking areas, social historians have until recently considered the relationship between lords and peasants as the central problem of late medieval rural lordship organization, and have therefore relied heavily on the descriptive categories of contemporary Weistümer and charters. As a pioneer of this strand of research, Otto Brunner bears the credit—and blame—for having overcome a constitutional history that relied too heavily on nineteenth- and twentieth-century conceptions of constitution and state. For Brunner the local rural legal structure rested on personal relationships between lords and peasants, which could not be described in terms of modern institutional categories.4 These relationships were forged through feelings of loyalty and conceptions of justice that committed them to a reciprocal exchange of benefits, so that the peasants were obligated to obedience and dues only insofar as their lord promised them “protection” (Schutz und Schirm) in exchange. The cause of conflicts, according to Brunner, was less the relationship between lords and peasants than the relationships between lords. These lords pursued feuds against one another, not least because they had to defend their subordinates from the assaults of other lords.5 This harmonious picture of the relationship between the rulers and the ruled is rooted in an idealization of authority by the self-confessed National Socialist Brunner—a background that the majority of German-speaking research has unjustly seen as inconsequential.
A few years ago, Gadi Algazi persuasively showed that the talk of loyalty and reciprocity conforms to an ideological construct that unilaterally championed the views of the lords, and, moreover, which was whitewashed by Otto Brunner: a construct that only poorly conceals the actual and often forcible oppression of the peasants.6 Algazi showed that the descriptions of the lordpeasant relationship in legal documents are more normative than descriptive—but without going so far as to subject the categories of lords and peasants to the same rigorous
