Folia Theologica et Canonica 10. 32/24 (2021)

Ius canonicum

CRIMINAL JURISDICTION OF MEDIEVAL HOLY SEES

139

The interdictum was a less frequently used but more frightening punishment. In connection with this sanction, the aspect that has become more and more emphasized (and especially in the late Middle Ages) is that it is specifically an injustice, since the punishment also affects the masses of the innocent personally. At the Council of Basel (1431-1447), it was decided that this severe punishment could only be imposed if the underlying sin was actually committed by an entire community - however, others could not be punished by the crimes of some in the future.

II. Criminal lawsuits in southern German provinces

The so-called high judgment (Hochgerichtsbarkeit), so the judgment involving blood power in the Frankish age was the responsibility of the counts, who received or derived their judicial jurisdiction from the king. This county court (Landgericht) was later seized by the Vogts. This was the result of the natural development through which the division of labor was established, according to which the church judges essentially the preservation of moral and religious values, while criminal proceedings, which inevitably require the use of physical violence, are primarily the responsibility of secular authorities.

Bishops and archdeacons used church punishments more and more extensively during their Sendgerichtsbarke on their occasional visitatio with varying zeal3. In place of the old adversarial lawsuit Pope Innocent III. put the inquisitorial procedure4. The ecclesiastical judge could also initiate proceedings against the person concerned on the basis of a simple rumour (publica fama, vulgata fama). These studies were primarily aimed at screening heretics out of society and preventing the spread of heresies. Thus, the type of litigation originally used for canon law proceedings soon found its way into secular justice, in a more unbridled form, along with the application of the institution of tortura5.

3 For the so-called Send as a legal institution see Paarhammer, H., Rechtsprechung und Verwaltung des Salzburger Offizialates. 1300-1569 (Dissertationen der Universität Salzburg 8), Vienna 1977. 97.

4 ln the diocese of Salzburg, the investigative procedure was demonstrably introduced under the educated canon, Archbishop Otto von Lonsdorf, and by around 1300 it was already a fully established form, as the Baumgartenberger Formulary shows: “Inquisitio dicitur ab inquirendo, debent enim visitatores inquirere veritatem facti. Est autem inquisitio data a superiore auctoritas inquirendi de aliquo iudice vel prelato, per quem locus aliquis est infamatus, quoniam causa inquisitionis est infamia.” Fontes Rerum Austriacarum, II. 25, 57. Cf. Hageneder, O., Die geistliche Gerichtsbarkeit in Ober- und Niederösterreich. Von den Anfängen bis zum Beginn des 15. Jahrhunderts (Forschungen zur Geschichte Oberösterreichs 10) Graz-Wien-Köln 1967. 255.

5 In German, torture was first mentioned in the Wiener Neustadt town law in the second half of the 13th century; cf. Schmidt, E., Einführung in die Geschichte der deutschen Strafrechtspflege, Göttingen 19833 87.