II.The Old Confederacy (13th/14th Century – 1798)
1. CONIURATIO, COVENANTS, AND CHARTERS
The Swiss federal constitution uses inter alia the term Schweizerische Eidgenossenschaft to describe the Swiss federal state (besides the words Confédération suisse/Confederazione Svizzera/Confederaziun svizra). With the elements Eid (oath) and Genossenschaft (fellowship), this descriptor is a reminder of the long-lasting tradition of the autonomous organisation of the Swiss regions, based on mutual oath. Since at least the 13th century, these alliances have formed the basis of the Old Swiss Confederacy. Around 1291 (although maybe not until 1309) “all people of the valley community of Uri, the entirety of the Schwyz valley and the community of people from the lower Unterwalden valley” promised to “assist each other by every means possible with every counsel and favour, with persons or goods within their valleys and without, against any and all who inflict on them or any among them acts of violence or injustice against persons or goods”.3 From the 15th century onwards, this charter and its formulae would become part of a historiographic narrative of a continuous efforts and struggle of liberation and resistance against foreign enemies. Around the same time a similar motive emerged with the legend of an oath, taken by WILLIAM TELL and others as part of their resistance against foreign powers. This legend, which has become famous by its literary adoption in FRIEDRICH SCHILLER’S play “William Tell”, and the charter, discussed here, merged since around the late 19th century to a collective, national narrative about the foundation of the Swiss nation.
Both regarding its topic and its basis of validity as an oath, taken by all its associates, this covenant represented a typical legal phenomenon of the High and Later Middle Ages. This phenomenon was that of public peaces (Landfrieden): these were a kind of sworn multilateral agreement between arms bearing persons, i.e. nobles or free peasants as opposed to villeins with obligation to render personal services or to pay duties, carrying the obligation to maintain peace and enforce common rules, as they were established by these public peaces.
The conceptual basis of these public peaces was the idea of creating associations based on collective vows. This kind of association was called sworn union (coniuratio). In a period lacking an overarching governmental power, as embodied in state and statehood during Roman antiquity and since the early modern period in Europe, the sworn union was in particular present in regions without strong royal or noble dominion,4 as a basic means of social and moreover political self-organisation, which enjoyed binding force by virtue of autonomously created legal normativity.
Sworn union, public peaces, and covenants were also key instruments in developing further coordination and cooperation in the Switzerland of today.5 Two lines of development can be distinguished. Firstly, under a network of treaties developed up until 1513, a complex confederate structure between the cantons (then so-called Orte) and associated cantons (zugewandte Orte) emerged. By way of military expansion and annexation, this group of cantons enlarged its territory by common dominions (so-called gemeine Herrschaften) without any kind of membership status. Secondly, several so-called charters (Briefe), whose validity was based on the idea of sworn union (coniuratio) and public peaces (Landfriede), consolidated the organisational structures of the emerging confederacy: the Treaty on Clerics 1370 (Pfaffenbrief)6 between Zurich, Luzern, Uri, Schwyz, Unterwalden, and Zug banned feud and thus violent conflict and excluded ecclesiastical jurisdiction from the territory of the associated partners. In these rules, the concept of jurisdictional territorial closure found a typical normative concretisation. The Sempach Treaty of 1393 (Sempacherbrief)7 both confirmed and amplified the combination of public peace and confederacy. As a peace treaty between Uri, Schwyz, Unterwalden, Luzern, Zurich, Glarus, Zug, and Bern as well as Solothurn, this charter banned violence between the signatories, ordered peace between them during joint military operations and also banned solo military actions by individual allies. Eventually, the Compact of Stans 1481 (Stanser Verkomnis) between Uri, Schwyz, Unterwalden, Luzern, Zurich, Glarus, Zug, and Bern, as well as Freiburg and Solothurn confirmed the former conventions.8 Moreover, the Compact of Stans established a duty to provide mutual assistance against external enemies as well as to combat revolts. It also committed the allies to common warfare. Parallel to this formation of confederate structures, the Federal Diet (Tagsatzung) as central council emerged since 1415 and in a more consolidated structure since 1470. It coordinated the common interests of the confederates: in particular foreign policy matters, questions of common economic politics and policy, and the joint administration of the common dominions.9
2. CUSTOMARY LAW, RECORDS OF LAW, AND SUMPTUARY MANDATES
The sworn union (coniuratio) as a concept for the formation of associations was also dominant on the municipal level.10 Here, the laws of free municipalities and cities, emerging since the 12th century in Switzerland, were based in their validity on an oath made by the citizens. The Zurich Charter of rules for judgement (Richtebrief) for example, which was laid out in written form for the first time in 1304, starts by describing itself as “book of laws of the citizens of Zurich”, which the citizens of Zurich “have set up by peace and for the honor of the city by themselves”.11 The rootage of legal validity in the idea of oath became even clearer in another Zurich municipal law of 1336, which declared every action against itself or other articles of municipal law to be “perjury”.12
There were, however, also other legal sources present. In a society with only a limited range of literacy (with the exception, of course, of the ecclesiastical culture, which was basically defined by its deep commitment to literacy and textuality), naturally there was great importance placed on orality and thus unwritten law, as represented by customary law. This phenomenon was also present in medieval Swiss legal culture: particularly in rural areas, customary law, considered as such based on long-term use of rules, governed apparently in the most cases social and economic relations.
There was, however, an increasingly emerging need to establish these rules in written form so as to create a basis for reliable expectations. Consequently, the so-called “Offnungen” (literally: “disclosure”) emerged. In principle, they claimed to be merely written records of long existing non-written rules, governing in particular the relations between peasants and their lords, between free peasants (with regard to the use of common municipal goods, for example woods, meadows, or lakes), and between lords. A document created around 1300, for example, regarding Pfäfers Abbey claimed to be a list of “the rights and powers of the Lord’s house of Pfaevers, which it has from ancient times on all things, over people and goods”.13 In reality, however, Offnungen usually represented the result of negotiations about claims, duties, and rights between all participants, and were largely based on consensual action.14
Customary law and its transformation into written law could also be observed in cities and larger regions. Here, the term “law of the city”/ “law of the land” was used, which essentially referred to the sum of unwritten or only partially written rules that governed the city or the region. A typical example demonstrating the strong presence of the concept of customary law would be the liberties, rights and customary laws of Vaud (Libertez, Franchises et Coustumes … du Pays de Vauld). These were compiled by decree of the Bern dominion in 1577 and in 1616 were transformed into the so-called laws and statutes (Loix et statuts). This change of title also indicated a trend in the history of secular Swiss legal sources in the transition from the late middle ages to the early modern period: the increasing importance of statutory legislation enacted by superiors – usually urban councils and cantonal governments.
“The sumptuary law” (Sittenmandat) represented a particularly wide spread type of legislation during the 16th and the 17th centuries. These sumptuary laws were intended to establish a broad range of economic and in particular social regulation, ranging from price-caps intended to protect those on low income against poverty to topics like alcohol consumption during marriage or the ban of luxury goods. In laws such as the “Statutory mandate and order of our gracious lords, mayor and small and grand council of Zurich” 1650, the rise of legislative and governmental power indicated the emergence of early modern statehood with its wide-ranging claim of power. It was inter alia this kind of development that would find a strengthened continuation in the period following the French Revolution.
3The Federal Charter of 1291, Preamble; the English translation follows the proposal by the Bundesbriefmuseum, online available at www.admin.ch (https://perma.cc/WB95-DKAD).
4For a very short, but coherent survey see KARL UBL, Corporate Order, in Brill’s Encyclopedia of the Middle Ages (https://perma.cc/K4JU-NDSN).
5For an outline of this period in Swiss history see CLIVE H. CHURCH/RANDOLPH C. HEAD, A Concise History of Switzerland, Cambridge 2013 (6th printing 2017), pp. 22; ROGER SABLONIER, The Swiss Confederation, in Christopher Allmand (ed.), The New Cambridge Medieval History, vol. 7, Cambridge 1998, pp. 645, online available at www.cambridge.org (https://perma.cc/C7WY-UUGA).
6CHURCH/HEAD, p. 31.
7CHURCH/HEAD, p. 33.
8CHURCH/HEAD, pp. 58, SABLONIER, pp. 662.
9On the latter aspect see RANDOLPH C. HEAD, Shared Lordship, Authority and Administration: The Exercise of Dominion in the Gemeine Herrschaften of the Swiss Confederation, 1417–1600, in Central European History, Volume 30, Issue 4, Cambridge 1997, pp. 489, available online at www.cambridge.org (https://perma.cc/736U-JHCV).
10As a survey see SABLONIER, pp. 656.
11Original: Züricher Richtebrief 1304, Introduction, II.21, in: Daniel Bitterli (ed.), Die Rechtsquellen des Kantons Zürich, Neue Folge, Erster Teil, Erste Reihe, Erster Band, Zurich 2011 (online available at www.ssrq.ch (https://perma.cc/68ND-6ATQ), p. 1: „Hie vahet an das buoch der gesetzeden der burger von Zurich … D]ise gesezeden, die an disem buoche geschriben sint, hant die burger von Zurich dur vride und dur besserunge der stat ze eren und in selben uf gesezet.“
12First Sworn Compact, Erster Geschworener Brief 16th July 1336, in: Werner Schnyder (ed.), Quellen zur Zürcher Zunftgeschichte, vol. 1, Zurich 1936, n. 3, pp. 8, section y: Who violates the rules of the compact, „der sol meineidig sin und sol sin burgrecht verlorn han und sol dar zu Zurich in die stat niemer mere komen“.
13Original: Sammlung Schweizerischer Rechtsquellen, XIV. Abteilung: Die Rechtsquellen des Kantons St. Gallen, 3rd part: Die Landschaften und Landstädte, vol. 2: Die Rechtsquellen des Sarganserlandes, by Sibylle Malamud/Pascale Sutter, Basel 2013, no. 8, pp. 6, online available at www.ssrq.ch (https://perma.cc/6DJJ-QU5S), p. 7: „Dis sint des gotzhuses von Pfaevers rehtungen, die es von alter behebt an allen sachen, uber lút und úber gu°t“.
14On the whole issue see SIMON TEUSCHER, Lords’ rights and peasant Stories: Writing and the Formation of Tradition in the later Middle Ages, translated by Philip Grace, Philadelphia 2012.