Legal Definitions - de clerico convicto commisso gaolae in defectu ordinarii deliberando

The Latin phrase de clerico convicto commisso gaolae in defectu ordinarii deliberando refers to a historical legal writ or process in English law. It literally translates to "concerning the convicted cleric committed to jail for lack of the ordinary being delivered."

In essence, this writ was a legal mechanism used in medieval and early modern England to address situations where a clergyman, having been convicted of a crime in a secular (royal) court, was committed to a secular jail. This occurred because the ecclesiastical authority – typically a bishop or church court, known as the "ordinary" – failed to take custody of the cleric for ecclesiastical punishment, despite the cleric having successfully claimed "benefit of clergy."

The "benefit of clergy" was a privilege that allowed clergy members (and later, anyone who could read) to be tried in ecclesiastical courts rather than secular courts, or to be transferred to ecclesiastical custody for sentencing after a secular conviction. The writ of de clerico convicto commisso gaolae in defectu ordinarii deliberando was a remedy for when the church failed in its duty to receive and deal with such a convicted cleric, leaving them indefinitely imprisoned in a secular jail.

• Example 1: Indefinite Detention Due to Absent Bishop

  Imagine a scenario in 14th-century England where Father Michael, a parish priest, is convicted of petty theft by a local royal court. He successfully claims "benefit of clergy," meaning he should be handed over to the bishop's court for punishment. The secular court commits him to the county jail, awaiting the bishop (the "ordinary") to take custody. However, the bishop is away on a diplomatic mission and has not appointed anyone to act on his behalf in such matters. Father Michael remains in the secular jail for months without resolution. A writ of de clerico convicto commisso gaolae in defectu ordinarii deliberando could be sought to compel his release from the secular jail, arguing that his continued detention is due to the church's failure to fulfill its jurisdictional responsibility.

• Example 2: Jurisdictional Standoff

  Consider a 15th-century case where Brother Thomas, a monk, is found guilty of assault by a sheriff's court. He invokes his clerical privilege, expecting to be transferred to the local bishop's prison. The sheriff commits him to the secular town gaol. However, the bishop and the secular authorities are embroiled in a long-standing dispute over who has ultimate jurisdiction in certain criminal matters involving clergy. As a result, the bishop deliberately delays sending his officials to collect Brother Thomas, hoping to assert his authority by forcing the secular court to release him. Brother Thomas is stuck in the secular jail, a pawn in a jurisdictional standoff. This writ would be the legal tool to address the "defectu ordinarii" (the ordinary's default) and force a resolution regarding Brother Thomas's detention, potentially compelling the bishop to act or ordering his release from secular custody.