LITMIR.BIZ

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“peasants” who were interrogated belong to the lowest social classes. Many of them held lower manorial offices or were tithe tenants, and are therefore best described as the peasant ruling class.³⁸

      Significantly, the first examples of witness deposition records that divided the disputed question into many articles also included statements from numerous specialists in the learned law who had studied at the universities of northern Italy.³⁹ Under their influence, forms of inquiry modeled on the example of Roman-canonical civil, defamation, or inquisition procedures—which had spread north from southern Europe across the Alps in the middle of the thirteenth century—found their way into witness depositions about local legal customs. In such processes, the witnesses had to declare assent to or denial of the assertions expressed in individual points or articuli.⁴⁰ According to the same process, the latitude given to those questioned in procedures for law-finding was restricted to assenting to or contradicting a series of points about the alleged legal situation.

      The inquiries thus modeled themselves on the Roman-canonical process of a distinctive division of labor among the witnesses, who reported mere perceptions, and the judge, who drew legal conclusions from them.⁴¹ The methods for establishing laws and facts were so similar that in some cases they blend into each other.⁴² In the course of the fourteenth century, the new procedure for the production of legal documents was accepted in rural areas throughout the entire area in question, as well as by such holders of communal lordship as Zürich, Bern, and Luzern. In the sixteenth century these procedures became the standard for the supreme court of the Holy Roman Empire, the Imperial Chamber Court (Reichskammergericht), which pronounced judgment on and thus sometimes decided which legal customs had validity in the relevant regions.⁴³ The understanding of legal custom was fundamentally altered by the adoption of this procedure. The truth of the witnesses’ statements no longer was authenticated simply through their oath, their reliability as persons, and their consensus, but rather was accessed through the comparison of details in the statements of different witnesses. The objects of such hearings were no longer legal rules. In fact, the impetus behind such procedures was the assumption that legal rules could be ascertained, proven, and known in the same way as facts.

      Innovations of the Chancelleries

      In the fifteenth century the greater territorial lordships began to conduct witness deposition hearings that no longer investigated merely local legal relations but rather aimed to ascertain rules that could claim validity in their entire territories, or at any rate in large subdivisions like bailiwicks, counties, and districts. Thus the procedures began to distance themselves from the model of Roman-canonical processes. The commissioners often now exceeded without a qualm the maximum of forty witnesses dictated by canon law. In a 1484 witness deposition carried out at the order of the court of the city of Constance, for example, no fewer than 349 witnesses appeared on behalf of one of the parties.⁴⁴ In addition, the chancelleries adapted the inquiry procedures to the topography of lordship within their territories.⁴⁵ In what follows, two of these special developments will be presented. A first section is on new ways of conducting witness depositions developed by the territorial administration of cities such as Bern and Zürich. These cities increasingly integrated the local courts in their hinterlands into witness depositions. Second, several sections will follow on the modifications that the Savoyard courts earlier had introduced into witness deposition procedures, for they show with particular clarity how the focus on regulations that would be valid throughout ever larger unified geographic regions resulted in broad changes to the understanding of unwritten legal customs.

       Local Courts and Cities’ Territorial Lordship

      Beginning in the mid-fifteenth century, the courts of the confederated Swiss cities with large territories gradually ceased using only itinerant commissioners to gather witness depositions. Instead, either the court or the litigating parties asked several local courts in villages or towns within the city’s territory to interrogate witnesses about the applicable law. The local judges then consulted witnesses who were under their jurisdiction and had the results recorded in the form of charters that they themselves sealed and then sent to the central authority.⁴⁶

      For example, around 1478 the cloister of Interlaken presented a series of witness depositions in the form of charters before the court of the city council of Bern (Ratsgericht). With them, the cloister hoped to defend its area of legal jurisdiction against the claims of the neighboring town of Thun. In preparation for the court inquiry, the provost of the cloister had called on the local courts of small local lordships such as Aeschi, Unspunnen, Krattigen, Spiez, and Interlaken and requested that their judges consult witnesses who lived in the area. The judge of the court district of Interlaken, which included the cloister itself, had issued four different charters over two days in order to establish separately the statements of each hamlet that belonged to the court’s territory: that is, one each for Flüeh, Leissigen, Habkern, and the principal village of Interlaken itself.⁴⁷ In general, places of residence rather than individual witnesses are the most prominent primary units of examination in such inquiries.

      All the consulted local courts asked the same questions, which were formulated by the provost, but apparently they could avail themselves of very different methods in doing so. To establish the statements of the two most prominent witnesses from the small territory of Unspunnen, for example, they produced two different charters. In the first, the local lord appeared as the issuer and judge, who consulted his bailiff as a witness. In the second, the two switched roles. The bailiff now verified what he had heard while acting as the judge who interrogated his own lord.⁴⁸ The judge of the village court of Krattigen did it all very differently. He made a declaration regarding the disputed legal situation in the name of all those in attendance, although he then had four other residents give endorsements to his statement.⁴⁹ The principle of consulting witnesses individually, which had been widely observed since around 1300, appears to have become more lax in this type of inquiry; instead, local notables once again took part in the inquiry. This process bears some resemblance to inquiry methods from the early thirteenth century, but it can scarcely be explained as a survival of the old procedures. For in spite of their differences, all these inquiries were consistently based on one innovation that had been implemented since the fourteenth century: the witnesses now had to give statements not directly about the valid law but rather about indications for its existence. The delegates who were examined by the local courts filled a need that was characteristic of the late fifteenth century: identifying laws as a characteristic of territorial unity.

      Witness deposition inquiries to verify that legal regulations were accepted throughout larger geographic regions had to take account of the legalpolitical structures of those regions. Geopolitical relationships like those in the region around Lake Thun, where the consultation of 1478 was undertaken, could be encountered in large regions of contemporary Europe: in one legal form or another, all the relevant villages and small lordships were subject to the same overlordship—in this case that of the city of Bern, whose court had the final decision in cases of dispute. Large parts of the judiciary and the local courts, however, were in the hands of various small lay and ecclesiastical lords who practiced local law. These lords could easily have taken it as an infringement of their jurisdiction to have their subjects interrogated as witnesses by the commissioners of the centralized authority, the city of Bern. Such tensions could be avoided by the delegation of the inquiry to the courts of the local lords. The recording of the results of the inquiry in a series of locally produced charters shows the topography of power within the region in which the investigated law had to be recognized.

       How Witnesses Became Advisors

      In the Pays de Vaud, too, witness deposition procedures aimed increasingly at the verification of unwritten rules that could claim validity in large geographic regions. Here, however, this development took place under the auspices of a lordship administration that, by comparison to the territories of the German-speaking cities, was strongly centralized and had largely eliminated local lords. Nonetheless, as mentioned previously, inhabitants of Vaud still claimed the privilege of being judged according to their own legal customs.⁵⁰ This raised new problems, as litigating parties increasingly took appeals from their local courts to the central Savoyard courts which, since they mainly practiced learned law, were

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