Definition
A writ issuing out of the English Court of Chancery directing the imprisonment of a person who had been declared contumacious — that is, willfully disobedient — by an ecclesiastical court. The writ arose as a secular enforcement mechanism after the ecclesiastical courts lost their primary coercive tool. When a person failed to obey a lawful citation or sentence of a spiritual court, the ecclesiastical judge could formally pronounce that person contumacious and in contempt, then certify (or "signify") that finding to Chancery. Chancery would then issue the writ, committing the contumacious party to civil imprisonment. The full Latin phrase is most commonly encountered in legal sources as *de contumace capiendo* — "for taking the contumacious person."
Common Confusion
CONTUMACE CAPIENDO vs. EXCOMMUNICATO CAPIENDO: These writs served the same functional purpose at different periods of English legal history. *Excommunicato capiendo* was the older writ, enforcing ecclesiastical contempt through arrest of an excommunicated person. The Ecclesiastical Courts Act of 1813 (53 Geo. III, c. 127) abolished excommunication as a coercive sanction in contempt proceedings and replaced the *excommunicato capiendo* with the *de contumace capiendo*. Researchers encountering either writ in historical records should note which era the source reflects — the two are not concurrent alternatives but sequential replacements.
Why It Matters in Research
This term appears almost exclusively in English legal sources and is of negligible relevance to American law. Its importance in the Law Mind corpus is primarily historical and taxonomic.
The term marks a specific transitional moment in ecclesiastical jurisdiction: the 1813 statutory reform that decoupled spiritual contempt from ecclesiastical punishment and rerouted enforcement through the secular Court of Chancery. Documents predating 1813 will use *excommunicato capiendo*; documents after 1813 should use *de contumace capiendo* or refer to the signification procedure. A source using these terms in the wrong era is either anachronistic or in error — a useful diagnostic when dating undated manuscripts or evaluating the reliability of secondary accounts.
Researchers working in ecclesiastical court records, Chancery practice guides, or treatises on contempt procedure will encounter this writ. It also appears in broader discussions of the relationship between English civil and ecclesiastical jurisdictions — a perennial topic in legal history touching probate, marriage, tithes, and defamation as they were handled by the church courts.
Because Burrill's simply cross-references *de contumace capiendo* without independent treatment, and because Black's entries are truncated in available sources, researchers should treat this term as an access point directing them to fuller treatment under the *de* form of the phrase.
Historical Dictionary Support
The historical dictionaries in the Law Mind corpus agree on the basic function of the writ but present it with varying completeness. Black's (1st ed.) provides the most substantive account, correctly identifying the 1813 statute (53 Geo. III, c. 127, § 2) as the operative reform, describing the signification procedure to Chancery, and situating the writ as the replacement for excommunication. Black's (2nd ed.) begins the same treatment but is truncated in the available text. Burrill's offers no independent definition, redirecting to *de contumace capiendo* — which is the form under which Burrill likely provided fuller treatment.
None of the historical dictionaries address the writ's practical obsolescence following the broader 19th-century reforms to ecclesiastical jurisdiction, including the transfer of probate and matrimonial jurisdiction to secular courts in 1857. By the time most American legal dictionaries were compiled, this writ had little practical significance even in England, which may explain the sparse treatment. Researchers should not mistake brevity in these sources for marginality in the historical record — the writ was actively used and litigated during the period when ecclesiastical courts held significant civil jurisdiction.
Jurisdictional Note
This writ is exclusively English in origin and application. It has no American counterpart. American courts developed independent contempt enforcement mechanisms without the ecclesiastical court infrastructure that made this writ necessary. Researchers encountering the term in American sources will find it only in historical or comparative discussions of English practice.