Legal Definitions - clerico convicto commisso gaolae in defectu ordinarii deliberando

The term clerico convicto commisso gaolae in defectu ordinarii deliberando is a historical Latin legal phrase. It refers to a specific type of legal order, known as a writ, that was used in medieval English law.

This writ was issued by a secular (non-church) court. Its purpose was to command the immediate transfer of a cleric (a member of the clergy, such as a priest or monk) who had been convicted of a felony (a serious crime) in a secular court, from the secular jail directly into the custody of the "ordinary" (a superior church official, like a bishop).

The key aspect was that this transfer occurred "in defectu ordinarii," meaning without the ordinary first performing the usual preliminary step of questioning or verifying the cleric's right to claim "benefit of clergy." "Benefit of clergy" was a historical privilege that allowed clerics (and later, anyone who could read) to be tried in ecclesiastical (church) courts for certain crimes, often resulting in more lenient sentences than those imposed by secular courts. This writ essentially streamlined the process, ensuring the convicted cleric was handed over to church authority without delay or the church's prior procedural checks regarding the claim of clergy.

• Example 1: Imagine a parish priest in 14th-century England is found guilty of grand larceny (a serious theft) by a royal court jury. Under normal circumstances, the bishop might first need to confirm the priest's clerical status before taking custody. However, if the court issued a clerico convicto commisso gaolae in defectu ordinarii deliberando writ, the sheriff holding the priest would be compelled to immediately deliver him to the bishop's prison, bypassing any preliminary verification by the bishop regarding the priest's right to claim benefit of clergy at that specific point in the process. The writ ensured the transfer happened directly upon conviction.

• Example 2: A monk from a local abbey is accused and subsequently convicted of assault with intent to cause grievous bodily harm in a county court. The secular judge, wanting to ensure the convicted monk is dealt with by the appropriate ecclesiastical authority without procedural delays, issues this specific writ. This legal order would mandate that the jailer holding the monk release him into the custody of the abbot (who served as the ordinary for the monastery), even if the abbot had not yet formally asserted or verified the monk's claim to benefit of clergy. The writ compelled the transfer directly.

• Example 3: During a period when the King's courts sought to assert their authority over serious crimes, a high-ranking canon is convicted of treason by a royal tribunal. While the church still maintained jurisdiction over its members, the Crown might use a clerico convicto commisso gaolae in defectu ordinarii deliberando writ. This would ensure the immediate transfer of the convicted canon from the royal prison to the custody of his bishop, without the bishop first having to conduct an inquiry into the canon's right to claim benefit of clergy. The writ served as a direct command for the handover, reflecting the procedural interplay between secular and church law.