Legal Definitions - de excommunicato capiendo

The term de excommunicato capiendo refers to a historical legal writ used in England, primarily during the medieval and early modern periods, within the system of ecclesiastical law.

It was a formal order issued by a secular (non-church) court, typically at the request of the church authorities. This writ commanded a sheriff or other secular official to arrest and imprison an individual who had been formally excommunicated by the church. The imprisonment was not intended as a punishment for the original offense that led to excommunication, but rather as a means to compel the excommunicated person to reconcile with the church and submit to its spiritual authority.

This writ highlights a period when the church held significant legal power, and secular authorities were often tasked with enforcing ecclesiastical judgments. It was eventually replaced by other legal mechanisms, such as the writ de contumace capiendo.

Here are some examples illustrating its application:

• Imagine a wealthy merchant in 15th-century England who was excommunicated by his bishop for persistently refusing to pay his required tithes (a portion of his income due to the church) and for openly defying the church's warnings. If the merchant remained unrepentant and continued to ignore the church's authority, the bishop could petition the King's court for a de excommunicato capiendo writ. This writ would then legally obligate the local sheriff to arrest the merchant and hold him in prison until he agreed to reconcile with the church, perhaps by paying his overdue tithes and seeking forgiveness.

  This example demonstrates how the writ was used to enforce financial obligations to the church and compel submission from defiant individuals through secular imprisonment.

• Consider a villager in the 14th century who was excommunicated for committing a serious moral offense, such as adultery, and then publicly refused to perform the penance (acts of atonement) assigned by the ecclesiastical court. If this individual remained defiant and showed no intention of seeking absolution or reconciliation with the church, a de excommunicato capiendo writ could be issued. The sheriff would then be legally bound to apprehend and detain the villager, holding them in custody until they demonstrated a willingness to reconcile with the ecclesiastical authorities and fulfill their religious obligations.

  Here, the writ was applied to enforce compliance with church discipline and moral judgments, using imprisonment to encourage repentance and reconciliation.

• Suppose a powerful landowner in the 16th century was excommunicated for interfering with church property rights or for defying a direct order from the bishop regarding a religious matter within their estate. If this landowner, despite being excommunicated, continued to ignore the church's authority and refused to seek reconciliation, the church could obtain a de excommunicato capiendo writ. This would empower the local sheriff to arrest the landowner and imprison them, not as a direct punishment for the original offense, but specifically to compel them to reconcile with the Church and acknowledge its spiritual jurisdiction.

  This illustrates the writ's use against influential individuals who challenged the church's temporal or spiritual authority, using the threat of imprisonment to force reconciliation.