Legal Definitions - de homine capto in withernamium

de homine capto in withernamium

This Latin phrase refers to a historical legal writ, or court order, used in English law. It literally translates to "for taking a man in withernam."

In essence, de homine capto in withernamium was a powerful legal tool designed to prevent the obstruction of justice when a person, known as a "bondman" (someone held in service or obligation, often as security for a debt), was unlawfully removed. If an individual took a bondman out of the local jurisdiction specifically to prevent that bondman from being legally recovered or returned to their rightful claimant (a process known as replevin), this writ allowed for the arrest and imprisonment of the person who had taken the bondman. The individual would remain jailed, without the possibility of bail, until the bondman was brought back and made available for legal proceedings.

Here are a few examples illustrating how this historical writ might have been applied:

• Imagine a medieval lord who had a serf, a person legally bound to his land and service. If a neighboring lord, perhaps in an act of rivalry or to gain labor, enticed this serf away and moved them to a distant estate in another county, specifically to prevent the original lord from reclaiming their serf through legal means, the original lord could petition for a writ of de homine capto in withernamium. This would lead to the arrest and imprisonment of the neighboring lord until the serf was returned.

  This example demonstrates the writ's application when a "bondman" (the serf) was unlawfully removed from a lord's jurisdiction to thwart a legal claim, resulting in the imprisonment of the remover.

• Consider a scenario in the 17th century where a merchant, deeply in debt, had pledged an indentured servant as collateral to a creditor. Just as the creditor was about to legally claim the servant due to the merchant's default, the merchant secretly moved the servant to a different shire, hoping to hide them and avoid fulfilling the agreement. The creditor could then seek a writ of de homine capto in withernamium against the merchant. The merchant would be jailed until the indentured servant was brought back and made available to the creditor.

  Here, the indentured servant functions as the "bondman," and their removal by the merchant to prevent legal recovery by the creditor perfectly illustrates the circumstances under which this writ would have been issued.

• In a historical guild system, an apprentice was legally bound to a master for a specific period of training and service. If a rival master, seeking to gain an advantage or poach skilled labor, persuaded an apprentice to leave their original master and then moved them to a town outside the original master's legal reach, the original master could invoke de homine capto in withernamium. This would compel the rival master's imprisonment until the apprentice was returned to their rightful place.

  This situation highlights how an apprentice, bound by contract, could be considered a form of "bondman." Their unlawful removal to obstruct the original master's legal right to their service would trigger the application of this writ.