Legal Definitions - de contumace capiendo

The term de contumace capiendo refers to a historical legal writ, or formal written order, issued in England. It was a mechanism used to enforce the decisions of ecclesiastical courts (church courts) when an individual stubbornly refused to obey their orders.

Specifically, this writ was issued by the Court of Chancery at the request of an ecclesiastical court. Its purpose was to authorize the arrest and imprisonment of a person who was found to be "contumacious"—meaning they were in contempt of the ecclesiastical court by deliberately disobeying its lawful commands or refusing to appear.

This legal tool became particularly significant after the Ecclesiastical Courts Act of 1813. Before this act, church courts could use excommunication as a powerful means to compel obedience. However, once that power was removed for contempt cases, the de contumace capiendo writ provided a secular enforcement method, allowing the state's authority to back the church courts' judgments.

Here are some examples of how the de contumace capiendo writ might have been used:

• Refusal to Pay Church Dues: Imagine a wealthy landowner in the early 19th century who was ordered by an ecclesiastical court to pay his legally mandated tithes (a portion of his income or produce due to the church). If the landowner steadfastly refused to comply with this order, the ecclesiastical court, no longer able to excommunicate him for this offense, could petition the Court of Chancery for a de contumace capiendo writ. This writ would then authorize the sheriff to arrest the landowner and hold him until he agreed to pay the outstanding tithes, thereby enforcing the church court's financial judgment.

• Disobedience in a Matrimonial Case: Consider a situation where an ecclesiastical court, which historically handled marriage and divorce cases, ordered a husband to provide financial support (alimony) to his estranged wife. If the husband ignored this order and refused to make the payments, the wife's legal representatives could ask the ecclesiastical court to seek a de contumace capiendo writ. This writ would then lead to the husband's arrest, compelling him to either comply with the support order or face continued imprisonment, thus ensuring the enforcement of the matrimonial decree.

• Failure to Appear as a Witness: In a historical probate case (the legal process of proving a will), an ecclesiastical court might have summoned a crucial witness to testify about the validity of a will. If this witness repeatedly failed to appear despite proper summons, demonstrating contempt for the court's authority, the ecclesiastical court could request a de contumace capiendo writ. This writ would empower law enforcement to arrest the recalcitrant witness and bring them before the court to provide their testimony, ensuring the judicial process could proceed.