local manorial official, was to walk toward this retinue, holding in one hand a chicken for the falcon and in the other a loaf of bread for the dogs. Then the villagers were to host the lord and his retinue.1 The next day, the lord was to gather the peasants around him and ask them what rights were due to him. The peasants were to answer him as they had every year before. Descriptions like this one portray rituals for passing down the law as miniature versions of “royal entries” (joyeuses entrées) of the period, the ceremonial visitations of princes to cities, which had their own rich symbolic language.2 Laws, however, were also passed down in everyday life in quite unspectacular ways. Unwritten rules were invoked by neighbors in conflict; men discussed them in the tavern, mothers impressed them on their children, and longtime residents brought them to the attention of newcomers.3
It is in the nature of unwritten norms that they can never be “looked up” but rather must be defined, updated, and mediated through communicative processes. This ongoing discourse about the law doubtless forms an important background to more strongly formalized procedures. At the same time, these also require a break from everyday communication practices; they do not follow the form of conversations or arguments but rather of an inquiry, or even of actual interrogation.4 This common tendency points to ever more strongly formalized procedures for the establishment of law in the course of the late Middle Ages.
In some cases, but by no means always, the results of such procedures were written down. Among the best documented types of inquiry are two distinct procedures: witness depositions and law declarations (Rechtsweisungen) from manorial courts. These are the main subjects of this chapter, and so I will define them here briefly. Witness deposition procedures were often carried out by regional courts and arbitrating tribunals. Those conducting the depositions could thus investigate the disputed legal regulations before reaching a verdict in a specific case. Often lordship rights in a broad sense were subject to examination; by the end of the Middle Ages, rights regarding inheritance as well as civil and procedural law were increasingly examined as well. In the course of a deposition, several experts with different lordship affiliations were consulted as witnesses. The procedure was somewhat similar to witness examinations in civil or criminal fact-finding inquiries, as indicated by the fact that both procedures were often described with the same terms in the late Middle Ages: in Latin as informatio or inquisitio, in French as enquête, and in German as Kundschaft. For the purposes of this study, this type of procedure will be referred to as a “witness deposition.”
Law declarations were, by contrast, procedures carried out by the courts of local lordships. These courts are referred to as Hofgerichte or Landtage in German, and as plaids généraux in French; throughout this study, I refer to them as “manorial courts.” In these assemblies (which ideally were held regularly), representatives of local dependents and of their lordship came together to regulate local matters and hold court. This could also be the occasion for the solemn promulgation of a whole series of local laws that related to the claims of the lordship, such as legislative authority and dues, but that also dealt with the economic organization and communal life of the village. In the late Middle Ages, these activities were called offnen or weisen, from which derive the terms Offnungen and Weistümer (in French, plaicts) for the documents they produced.5 In this study, I use the verb “to declare” to describe the action and the nouns “declaration” or “declaration procedure” to describe the ceremony or venue in which it took place, while keeping the German term Weistum to refer to the document such an activity produced.
This chapter discusses the development of these methods of inquiry. (The practices of recording—or fabricating—their results in writing will be the topic of Chapters 3 and 4.) Investigating the methods by which witness depositions and law declarations were conducted is not simply a question of researching the history of legal procedures. It is much more important to explain their social and cultural contexts. This avenue leads to questions about the situations in which the procedures were employed and about the possibilities for participation they offered to different groups. Moreover, the ways and means by which law was verified reveal tacit assumptions about the grounds for validity and changeability. Investigating the verification of law makes it possible to reexamine commonly held views about how unwritten law in the Middle Ages was equated with traditional ways of behaving, justified by its age, or considered to be the expression of one of many regional popular conceptions.6
The two types of inquiry are dealt with sequentially in this chapter, with two sections being devoted to each of them. The first two sections deal with the heretofore only patchily examined witness depositions and argue for the distinctive change this type of inquiry underwent in the course of the late Middle Ages.7 During the decades around 1300, deposition inquiries began to rely more heavily on the model of witness examinations in civil and inquisitorial procedures in church courts, and therefore shifted their focus from forming a consensus among local notables to establishing facts. A second rupture occurred around 1400 as the courts of individual power complexes developed their own procedural variations as a way to define legal customs more clearly as elements of the legal order of larger geographic regions. The second two sections are concerned with declaration procedures in manorial courts. Here the main problem is the relationship between oral procedures and the written production of the Weistümer, which began to increase only in the fourteenth century. The research on declaration procedures in manorial courts relies mainly on Weistümer8—an approach that is as obvious as it is problematic. On the one hand, Weistümer claim to reproduce oral legal declarations more authentically than any other genre of document. On the other hand, precisely this claim to representation places the documents under the suspicion of recording oral legal declarations in stylized form. Such stylization can be examined through the use of court decisions and deposition records, for it is here that declaration procedures, their participants, and their courses of action are described from other perspectives.
From Consensus Formation to Fact-Finding
Before taking up the discussion of changes in witness deposition procedures, a few remarks must be made concerning who actually conducted the witness depositions. Only local manorial courts had declaration procedures at their disposal, but they, along with church courts at all levels and the regional courts of great nobles or communal lordships, initiated witness depositions. Furthermore, unlike declarations, witness depositions were also used outside of court proceedings. Three basic types can be distinguished, according to their basic arrangements. The first type consisted of examinations that the court conducted at its own initiative, in which examiners asked a series of witnesses the same set of questions about the laws involved before they pronounced a decision in a case.9 In the second type, the court conducted a separate deposition for each of the two parties in the dispute, which could propose the witnesses to be consulted and the questions to be put to them.10 In depositions of the third type, courts were not directly involved. Instead, ecclesiastical and lay holders of lordship commissioned someone to conduct a deposition about the rights they claimed. In the documents thus produced, the one who commissioned the deposition sought to legitimate his claims in light of legal and extralegal forms of conflict negotiation.11 These three types coexisted during virtually the entire chronological period under study here, with the exception that the second type is attested only from the beginning of the fourteenth century onward. The deposition types were all fundamentally subject to the same procedural developments that will be addressed in the discussion that follows.
Consensus-Oriented Procedures of the Thirteenth Century
The oldest deposition procedures in the region under study are from the beginning of the thirteenth century. They exhibit a marked similarity to the enquêtes par turbe that spread through the kingdom of France at the same time.12 In order to clarify disputed legal regulations, approximately a dozen witnesses were summoned. These witnesses conferred with one another and formulated a collective, definitive statement
