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and legal historians have been inclined toward an assumption that the oral legal culture of the Middle Ages equated law with traditions that were rooted in the people of a region through a combination of narratives and customs. Paradoxically, such an understanding is most visible in the late phases of the development of procedure. First, only late procedures in which the witnesses were consulted about detailed events assumed that laws could be deduced from customary habits. Second, only late procedures were built on the presumption that unwritten laws conformed to a legal understanding that was spread throughout the entire regional population. Finally, only the model of written law helped gain acceptance for the idea that unwritten legal customs had to be investigated as components of a coherent system of norms, a customary law. Such assumptions were thus in no way remnants of an old unwritten culture. They were connected far more closely with the practicalities of learned law and the organizational needs of the new territorial lordships.

      Law Declarations in Local Courts

      Thanks to the Weistümer we have ample information about the process by which unwritten laws were passed down in manorial courts. These documents, which originated sporadically in the thirteenth century and increasingly in the fourteenth and fifteenth centuries, do not merely contain series of local legal regulations. They also suggest more or less forcefully that even before they were written down, their contents had been declared from memory in a formal procedure at the local manorial court assembly. Some Weistümer regulate the course of these assemblies in the form of normative instructions. Others, such as that of the cloister of Engelberg mentioned at the beginning of this chapter, preface the actual legal statements with a prologue that describes how the lord arrived at the place and called together his peasants to record the laws defined in the subsequent Weistum. It is worth dwelling on these vivid descriptions for a while, for they have made an enduring impression on the perceptions of declaration procedures in modern research.

       The Depiction in the Weistümer

      According to the accounts in Weistümer, manorial court assemblies followed strongly ritualized forms. The lord convened these gatherings at a given place one to three times annually, on fixed dates. The dependents were obliged to appear under pain of fine. Many Weistümer describe first the arrival of the lord and his festive reception by the peasants. Mainly Weistümer emphasize that the court assembly, in addition to the law declaration process itself, also included acts of exchanging gifts, eating and drinking together, and other forms of sociability, which could have a marked symbolic character.⁸⁵ Weistümer often contrast the right of the lord to be hosted by the people of the place before and during the assembly, the so-called right of hospitality (Gastungsrecht), with the corresponding rights of the inhabitants. Many records state that the lord and his followers spent the proceeds of substantial fines on drinks during the legal assembly.⁸⁶ Such ritual depictions oscillate between celebrating the preeminence of the lord over his peasants and evoking a camaraderie between them that rested on reciprocity and patriarchally influenced forms of interaction.

      The pronouncement of the law was to be embedded in such rituals. Most Weistümer describe these moments much less exactly than the background events. Some Weistümer report in direct speech how lords elucidated local legal relations with successive questions (along the lines of, “Who is the lord here?”; “What dues may he collect?”; “Who may keep his cattle in the woods?”). While such Weistümer are not especially numerous, they have shaped some basic assumptions of modern research. These include, first, the idea that law declaration assemblies were there to regulate a binary relationship between the “inferiors” and their “superior,” that is, between the totality of local peasants and their lords.⁸⁷ Second, declarations are generally seen as alternative media that made it possible to pass down without writing a definitive law that was nonetheless unaltered.⁸⁸ Third, Weistümer give the impression that they arose from the procedures of oral legal declarations, reproduced them faithfully, and therefore in the end took over their functions and replaced oral tradition.⁸⁹ Gadi Algazi summed up conceptions of such unwritten but still orderly legal traditions in the concise phrase that peasants filled the role of “living archives” of legal knowledge to which lords could refer on the occasion of manorial court sessions.⁹⁰

      A certain skepticism about such a depiction of declaration procedures is justified, because in most Weistümer normative and descriptive elements merge fluidly with one another. In this way, these documents present manorial courts as traditions that were static, and to some extent idealized, in both form and content. These seem oddly detached from the diversity of actual circumstances that must have provided the immediate circumstances for each declaration. This is especially evident when—in the best tradition of source criticism—one compares the picture provided by the Weistümer with the one provided by other genres of documents. Thus plentiful charters, for a long time scarcely noticed in the research, can bear witness to the concrete local conflicts in manorial courts which formed the basis for declaration ceremonies, and witness deposition transcripts contain statements from witnesses who answered questions about legal regulations in which they reported their memories of declaration ceremonies. Thanks to such documents, the picture of the declarations conveyed through the Weistümer can be scrutinized. In what follows, we must first discuss the circle of participants in manorial court assemblies. What sorts of people are concealed by the terms “peasants” and “lords”? Later sections will take up the political functions and the course of action of the declaration procedures.

       “The Peasants”

      Manorial courts frequently have been understood in modern research as encounters between a lord and his local peasants. Such a description of the protagonists of legal declarations seems clear at first glance, but it is actually quite abstract. Even the question of who exactly took part in the manorial court on behalf of the dependents is by no means trivial. The usual description in modern research of these participants as “peasants” does not entirely reflect the terms commonly used in late medieval documents, such as “associates of the court” (hofgenossen) or “men” (homines).

      The idea that obligatory attendance resulted in something like a cross section of the entire local male population works best in the case of the manorial courts of those who held territorially defined jurisdiction rights, a group that admittedly grew during the late Middle Ages.⁹¹ But much more often, a lord who claimed primarily landlord rights presided over a manorial court. In such cases, the obligation to attend referred primarily to people who had leased lands from him and accordingly owed him yearly rent. Most contemporaneous documents expressed this situation in a picturesque phrase: the duty to appear at the manorial court was placed on those who held land from the lordship that was at least “seven foot-lengths wide and seven footlengths long” (“sieben Schuh weit und sieben Schuh breit”), as recorded in various Weistümer from the vicinity of Zürich.⁹² Although manorial courts were on the whole thought of as masculine domains, a few women, especially widows, could also be subject to the obligation of attendance thus defined;⁹³ in addition, numerous male heads of household were exempt from it by the same standards, for in many places a majority of the households worked land that they did not hold directly from the lordship but rather in a secondary lease relationship from the hereditary tenants (Erblehensträger). Under such circumstances, only a relatively small portion of the resident male population was obliged to take part in the manorial court.⁹⁴

      In the same way, the circle of participants in the manorial court of a landlord could extend far beyond the local population. The Weistum for the Aargau village of Holderbank, for example, names the participants in a declaration ceremony of 1470 and mentions their places of residence. They came from villages in the vicinity, including Niederlenz, Möriken, and Hendschiken, and from the neighboring town of Lenzburg, but apparently none of the individuals listed by name was a resident of Holderbank itself.⁹⁵ Especially in areas that were close to cities, a majority of hereditary tenants could consist of urban citizens who used the legal form of a peasant lease to invest capital in agricultural lands, which they in turn leased to local producers. Thus one Weistum from Albisrieden near Zürich ordered the residents of the village to take care that the urban citizens from whom they held their lands appeared at the manorial court.⁹⁶

      Finally, the obligation to take

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