CHAPTER 9 The Ecclesiastical System

1 Territorial Government and the System

The development of the ecclesiastical court system in the late is a success story. It had an enormous upsurge both qualitatively and quan- titatively in the aftermath of the Fourth Lateran Council (1215) and became a central pillar of the legal culture, profiting society as a whole. Milestones passed along the way were the learned study of , the codification of the Corpus Iuris Canonici on the juridical level, and the formation of the offici- alate on the institutional level. By the mid-fourteenth century, both processes had concluded, in central Germany as elsewhere. The result was an ecclesiastical organization of law that had no secular counterpart. It possessed a legal code that bore the stamp of , an efficient procedure based on written documents, trained professional (the ), and a spatially comprehensive stratified organizational structure where various bodies had specific competences. In keeping with the ecclesiastical hierarchy, its structures included the archdeacon’s court and the ’s court, below which were the archiepiscopal and papal courts, as well as papally delegated judges who sat locally.1 There were consequences. The accessibility, efficiency, and transparency of the ecclesiastical courts of law made them attractive to the , and a gener- ous interpretation of the stipulations of made it possible for these courts to take on disputes that had a purely secular origin. They claimed juris- diction over a wide legal field: ratione personarum, it included all members of the (the ), the poor, widows, and orphans, but also cru- saders, pilgrims, members of universities, and even merchants; ratione rerum, it included numerous sectors of public life connected to the church’s sacra- ments (e.g., matters concerning and wills), and where transgressions were regarded as sinful (e.g., breaches of contract, since contracts were usu- ally confirmed with a religious oath). These legal fields were known as causae

1 About ecclesiastical jurisdiction, see Hashagen, “Charakteristik”; Johanek, “Bischof,” 94–101; Mikat, 264–309; Plöchl, Vol. 2, 346–400; Trusen, “Kanonisches Recht”; further: Buchholz-Johanek.—about the situation in Central Germany, see Diestelkamp, “Geistliche Gerichtsbarkeit”; id., “Geschichte”; Gramsch; Hannappel; Hilling; Lück, 50–78; May, Organisation; id., Generalgericht Erfurt.

© koninklijke brill nv, leiden, ���7 | doi ��.��63/9789004353862_010 238 CHAPTER 9 spiritualibus annexae or (in view of their disputed position between the ec- clesiastical and the secular courts) causae mixti fori. In addition, there were regulations of canon law that permitted the treatment of secular cases when it appeared that the secular courts did not guarantee the administration of jus- tice. This meant that the ecclesiastical courts represented, almost everywhere, a serious competitor for the secular law courts.2 From a superficial point of view, the conflict between territorial sovereignty and the ecclesiastical court system had already been generated by the overlap with the secular administration of justice. These “smoldering conflicts about competence” (to use Paul Mikat’s term) were structurally inevitable, because there was never any unambiguous demarcation between the secular and the ecclesiastical legal spheres. The Corpus Iuris Canonici gives information about the precise competence claimed by the ecclesiastical side, but agreement on this point was never reached. Despite the acknowledgment in principle of the separate areas of competence, the boundaries always remained unclear. They were in a state of flux, just like the balance of power between church and state.3 However, the resoluteness with which the secular side accelerated the con- flict at the end of the Middle Ages points to deeper causes connected with constitutional history. From this perspective, the conflict can be seen to be the consequence of an intensified secular government. Control over the law courts played a central role, since the preservation of justice and peace was traditionally the most important task of legitimate government.4 The eccle- siastical courts had a wide-reaching impact on society, but it was impossible for the prince to exercise a direct authority over them. Accordingly, the secular power had to aim at pushing back the ecclesiastical competitor and building up indirect control mechanisms. In addition, financial interests prompted the attempt to remove the ecclesiastical competitor from the field, since court fees and fines were coveted sources of income.5 This reveals the great impact of the conflict with the ecclesiastical court system on the construction of territorial church government: paradigmati- cally, church politics could not be restricted to a religious sphere (however one might wish to define this), because the close fusion between church and soci- ety generated political power struggles. The clash between the ecclesiastical

2 See Plöchl, Vol. 2, 347–349; Lück, 51–53; Mikat, 266–272; Johanek, “Bischof,” 97–100; Albert, 27–56, 335–340. 3 See Mikat, 293 f., the quote 270. 4 About the term “government” see p. 32–36. See also Janssen, “Gute Ordnung,” 161; Johanek, “Bischof,” 100. 5 See Lück, 274.