used, for example, to clarify regulations for the use of woods and meadows,13 lordship and jurisdiction rights,14 claims to taxes and dues,15 and rights of patronage over churches.16 The consultations followed the framework of a court or arbitration procedure, and thus their results were not recorded in a separate document but rather were included in the records themselves, which the court issued along with its ruling. Usually the names of the consulted witnesses were included, but not what each individual had said. Instead, the scribe recorded the final result at which the group of witnesses had arrived together.
In many cases, the rule defined by the witnesses applied so specifically to the case in question that their statement already anticipated the decision of the court. An example of this is provided by the official court decision charter recording an arbitration hearing that was adjudicated by members of the lay and ecclesiastical elite of the Bernese Oberland in 1239. This panel decided a dispute between the cloister of Interlaken and the knight Heinrich von Wimmis over the regulations governing the use of a fish pond. The court record describes how the disputants together swore in and consulted ten specifically named witnesses from the region. The conclusion of their statement is introduced by the words “All of those sworn in said …” (“Hii omnes jurati dixerunt …”) and appears to be the verdict itself, which is followed only by the closing formula in the records. Numerous records of the thirteenth century follow this pattern. The remarks of the adjudicating officials are preceded by “from the account of [there follows the list of witnesses] I discovered” (“… ab ipsis relatione cognovi …”); “we established through reliable witnesses that …” (“… invenimus per testes fideidignos quod…”); or a remark that the decision was approved “by the advice” (“de consilio”) of witnesses.17
Although the regulation being stated was contested between the parties, and the witnesses often had to take an oath to tell the truth, the records give scarcely any details about how the witnesses justified their statements. They neither say that it was according to old or godly regulations nor list examples of the regulations being followed on previous occasions. It was virtually impossible to disprove statements made in this way. How the witnesses arrived at their collective statements doubtless varied greatly, and we have only fragmented evidence of the procedures. For German-speaking regions there are a few examples in which seven witnesses agreed on a statement and seven other witnesses unanimously swore to its correctness.18 An arbitration record from 1266 states that a dispute could be decided through a witness deposition only if its findings were unambiguous.19 In contrast, a document of the canon chapter of Lausanne from 1236 states that in the case of contradictory answers, whichever rule can be agreed on by the majority of consulted witnesses should be followed.20 Despite all the differences in the details, this type of procedure had one consistent feature: in practice, it relied on the idea that the court relinquished the delineation of valid laws to the deliberations of the group of witnesses.
Such procedures are reminiscent of the jury trials of the early Middle Ages. Janet Nelson said of these, in a summary of Karl Kroeschell’s observation, “Law in the early Middle Ages was what experienced men declared to be and used as the law.”21 Unlike the case in jury trials, valid law in these instances was defined by people who were explicitly identified as witnesses and thus were clearly differentiated from the actual members of the court.22 Courts delegated to such groups the duty of defining the applicable rules in a dispute and thereby relinquished to them a great deal of their discretionary authority.
In contrast to the declarations of manorial courts, it was not the dependents of a particular lordship who participated in such witness depositions but rather mostly high-ranking persons with noble or knightly titles. A dispute over jurisdiction in the region of Emmental in 1236 was decided by an arbitration panel that included two priests and five knights. They consulted as witnesses around fourteen men for whom no titles were given, but also four other priests and eight other knights.23 In the witness deposition from 1263 about the causes for which the Cluniac priory of Romainmôtier could levy special fees (aides) on the inhabitants of the village of the same name, they consulted, among others, two free nobles (Edelfreie) and two knights, as well as two priests, a deacon, and the priors of no fewer than four cloisters in the area.24 Generally, clerics appear with similar frequency as witnesses in legal witness depositions of the thirteenth century.25 The prominence of the witnesses consulted indicates that the witness deposition procedures of the thirteenth century were aimed not least at involving a wide circle of ecclesiastical and lay notables of the area in the process of delineating local law.
Changes around 1300
There were countless short-lived experiments with new ways of conducting witness inquiries about unwritten law, often tailored to a specific occasion. But apart from this, a substantial change took place between 1270 and 1300 that modeled proceedings increasingly on the principles of Roman-canonical procedure. In the new form of inquiry, the old procedure was fragmented in three ways. First, court inquiries were increasingly separated both temporally and spatially from the actual court hearings. The judges appointed commissioners, who consulted witnesses in their places of residence. Second, the collectivity of witnesses was dissolved. Instead of meeting together, the witnesses were now each sworn in individually and consulted separately from the others (“secrete”) in individual interrogations. Third, the commissioners no longer asked the witnesses only a few direct questions about declaring the disputed legal regulations but rather divided the subject of the examination into separate questions or articles. The results of the consultation thus no longer constituted a single formulated statement on which the witnesses had agreed, but rather several statements that could diverge more or less from one another.
An early example of the third change and the shift to an inquiry that included more separate questions is a record created in 1296 at the order of the counts of Savoy. They wished to clarify their lordship relationships around Lake Geneva, where they had founded the town of Morges a few decades before. In fact, the first question concerned the overall legal situation for which the inquiry sought evidence, namely that the House of Savoy had direct lordship (dominium directum) over the area. The witnesses, however, had to answer additional questions in their individual interrogations. The second question was whether the area belonged to the castle Vufflens; the third concerned the exact legal form of this affiliation and whether the city lay within the seynoria of Vufflens. Finally, the witnesses had to specify the nature of the Savoyard claim to Vufflens and answer whether this lordship was a tenure that could be bestowed on local nobles and which was required to be regularly renewed.26
Such questions could be multiplied almost endlessly. An inquiry about the rights to use the forest on the shores of Lake Brienz likewise contains four questions.27 This trend was taken even further in a witness deposition from 1312 concerning the right of presentation to the church of Hilterfingen, which is composed of no fewer than twenty-seven separate questions or articuli.28 The first and the last questions on the list would be asked during most later witness depositions: the witnesses had to state their personal information (age, place of residence, and lordship affiliation) and give information about the representativeness of their statements: they were to confirm that these facts were public (manifestum) and well-known (notorium), that they reflected common talk (vox et fama). In such procedures, the witnesses were no longer required merely to pronounce lordship rights but also to justify them.
During this time articuli that were asked directly on normative statements were noticeably pushed to the margins and in the end disappeared entirely. A late and accordingly significant example is provided by a witness deposition from 1397. It concerns a dispute between the lord of Oron and the bishop of Lausanne. Under debate was the boundary between the jurisdictions of the two lords. The questions no longer required simply an explicit description of this boundary.29 Instead, the witnesses were required to recall events such as imprisonments, executions, and confiscations by officials, which could indicate the regular practice of lordship rights in the contested area. Large parts of the witness statements were concerned
