Definition
Capiendo (Latin: "for taking" or "that he be taken") is a general term for a class of writs authorizing the arrest or seizure of a person. The name derives from the operative word in the writ's command — that the sheriff or officer take the named individual into custody. Several distinct writs bore this name or incorporated it as part of their title, each addressing a different procedural circumstance in which physical seizure of a person was the prescribed remedy.
The most commonly encountered forms in historical legal sources are:
1. DE EXCOMMUNICATO CAPIENDO: A writ issuing out of Chancery, directed to the sheriff, commanding the arrest of a person who had been excommunicated by an ecclesiastical court and remained in contempt of that censure for forty days. The writ provided the secular arm of enforcement for ecclesiastical discipline, bridging canon and common law process.
2. CAPIENDO PRO FINE (or in the context of redisseisin): A writ that lay to secure the release of a person imprisoned for a redisseisin — a second dispossession of land after a writ of novel disseisin had already restored the original possessor — upon payment of a fine to the Crown. The imprisonment for redisseisin was a recognized common law consequence; this writ offered the imprisoned party a mechanism for discharge.
3. DE HÆRETICO COMBURENDO: Although Bouvier's cross-references capiendo in connection with this writ, de hæretico comburendo was the writ commanding the burning of a convicted heretic. It belongs to a distinct and extreme category of historical writs. The connection to capiendo reflects the broader family of writs involving physical compulsion against persons, but researchers should treat de hæretico comburendo as a separate subject.
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Common Confusion
Capiendo is not a single writ but a descriptive Latin term applied across a family of arrest and seizure writs. Researchers encountering "capiendo" in a historical document must identify which specific writ is meant from context. The term appears both as a standalone writ name and embedded within compound writ titles (de excommunicato capiendo, capiendo pro fine). Conflating these distinct instruments will produce research errors, particularly when tracing procedural history or identifying the issuing court.
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Why It Matters in Research
This term presents a classic terminological trap in historical legal sources: a Latin label that functions as a genus, not a species. Primary source documents — plea rolls, Chancery records, ecclesiastical court papers — will use capiendo in different senses depending on period and procedural context.
For researchers working in the Law Mind corpus:
The de excommunicato capiendo is the most frequently appearing variant in treatise and practitioner literature, because it sat at the intersection of ecclesiastical and common law jurisdiction — a persistent and contested boundary in English legal history. Sources treating church-state relations, jurisdiction of spiritual courts, or Reformation-era legal changes will invoke this writ repeatedly.
The redisseisin-related capiendo appears in materials on land law and the real actions. It is tightly connected to novel disseisin and the broader body of possessory assizes. Rapalje & Lawrence's cross-reference to "Fine sur Concessit" signals that the discharge mechanism involved a formal fine acknowledged before a court — researchers following this thread need to understand fine as a concluded legal agreement, not merely a monetary penalty.
Bouvier's treatment is fragmentary in the digitized entries above, with cross-references pointing outward rather than providing substantive definitions. This is characteristic of Bouvier's method for procedural terms — he frequently dispatches readers to the operative writ name rather than defining capiendo independently. Do not treat Bouvier's brevity here as indicating the term is unimportant; follow his cross-references.
Historical sources predating the abolition of the forms of action (Judicature Acts, 1873–1875 in England; reform came earlier and unevenly in American jurisdictions) will treat writs in capiendo as live procedural instruments. Post-reform sources treat them as historical curiosities or use them to explain predecessor procedures.
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Historical Dictionary Support
Rapalje & Lawrence provide the most substantive definition in the available sources, anchoring capiendo to the specific context of redisseisin and identifying the Registrum Omnium Brevium (Reg. Orig. 222b) as the authoritative procedural source. The Registrum Originale was the standard reference for writ forms in English practice; this citation is historically reliable and traceable.
Bouvier dispatches the term with cross-references to de excommunicato capiendo and de hæretico comburendo, without independent definition. This reflects Bouvier's organizational choice to consolidate discussion under the full writ names rather than the shared Latin particle. Researchers should follow those entries in Bouvier for substantive treatment.
Neither source addresses the full family of capiendo writs systematically. For comprehensive treatment, older practitioner texts such as Fitzherbert's Natura Brevium and the Registrum itself provide the writ forms directly.
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Jurisdictional Note
The ecclesiastical dimension of de excommunicato capiendo gave this writ no meaningful American reception — there were no established church courts in the United States exercising coercive civil jurisdiction. American legal materials referencing capiendo will almost exclusively concern either historical English practice or the land-law variant. English historical sources, by contrast, engage the ecclesiastical writ extensively.
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