Definition
*De contumace capiendo* (Latin: "for taking the contumacious person") was an English writ issuing out of the Court of Chancery — specifically through the Petty Bag Office — directing the sheriff to arrest a person who had been declared contumacious by an ecclesiastical court and who refused to comply with that court's decree. The writ functioned as a mechanism for enforcing the judgments of the spiritual courts through the coercive power of the common law: where the ecclesiastical court lacked its own means to physically compel obedience, Chancery supplied the secular arm. It operated as a commitment for contempt.
The writ was issued upon a *significavit* — a certificate from the ecclesiastical court notifying Chancery that the defendant remained in defiance of its authority. Upon that certificate, the writ directed arrest and detention until submission or other compliance. The process was addressed to the sheriff of the relevant county.
Historically, the Church's primary sanction for contumacy was excommunication, which carried civil disabilities alongside spiritual censure. *De contumace capiendo* eventually displaced that mechanism. The Ecclesiastical Courts Act 1813 (53 Geo. III, c. 127, § 2) formally discontinued the use of excommunication as a civil enforcement tool, and thereafter *de contumace capiendo* became the standard substitute in all cases of contempt in the spiritual courts. The writ carried the same force and effect that had formerly belonged to the process following excommunication.
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Common Confusion
*De contumace capiendo* is sometimes loosely conflated with the earlier writ *de excommunicato capiendo*, which issued for the arrest of a person who had been excommunicated and who remained under that sentence. The two writs are related in purpose — both coerced compliance through physical arrest — but they are procedurally and historically distinct. *De excommunicato capiendo* depended on the sentence of excommunication itself; *de contumace capiendo* replaced it after excommunication was stripped of its civil enforcement consequences by 53 Geo. III, c. 127. Researchers encountering either writ in pre-1813 records must determine which mechanism was operative at the relevant date.
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Why It Matters in Research
This is an archaic English writ with no surviving operational equivalent in modern Anglo-American practice. Researchers will encounter it primarily in three contexts: ecclesiastical law sources, Chancery practice manuals, and historical records touching matrimonial and probate disputes (the spiritual courts' principal jurisdictions).
The chronological pivot point is 1813. Sources predating 53 Geo. III, c. 127 may describe either *de excommunicato capiendo* or *de contumace capiendo*, or both, in ways that blur the distinction. Sources written after 1813 treat *de contumace capiendo* as the operative writ and the excommunication-based process as abolished. Any research into pre-1813 ecclesiastical enforcement must account for this transition.
The Petty Bag Office, through which the writ issued, is itself a specialized research target. Records generated by that office — including the significavits that triggered the writ — are an underused source for tracing contempt proceedings in the spiritual courts. Researchers working with English ecclesiastical court records who find a defendant described as contumacious should look for a corresponding Petty Bag entry.
The writ's relevance in American legal history is minimal: the ecclesiastical court system was never transplanted to the colonies, and no American jurisdiction adopted this mechanism. References to *de contumace capiendo* in American legal dictionaries are descriptive of English law only.
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Historical Dictionary Support
The four source dictionaries converge on the essentials: a Chancery writ, triggered by ecclesiastical court declaration of contumacy, enforced by the sheriff through arrest. Black's (both editions) and Bouvier's all agree that the writ functions as a commitment for contempt, and Bouvier's correctly identifies the statutory discontinuation of excommunication as the backdrop. Rapalje & Lawrence adds the most procedural detail, specifying the Petty Bag Office as the issuing office and the significavit as the triggering instrument — information absent from the Black's entries.
Bouvier's entry is somewhat truncated in the available source text, cutting off mid-sentence, but the substance matches the other dictionaries. The Bouvier's entry noting the writ issued "in lieu of excommunication in all cases of contempt in the spiritual courts" is the clearest statement of the writ's post-1813 function.
None of the historical dictionaries addresses the American irrelevance of the writ directly, nor do they trace the earlier history of *de excommunicato capiendo* in a way that helps readers navigate the pre/post-1813 distinction. Researchers relying solely on the dictionary definitions risk treating the writ as though it existed in a static, timeless form when in fact its role was a product of a specific legislative moment.
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Jurisdictional Note
This writ is exclusively English in origin and application. It has no counterpart in American, Scottish, or Irish law, and was never adopted in colonial or post-independence American jurisdictions. Researchers working in comparative ecclesiastical law or English legal history will find it relevant; those working in American legal contexts will not.
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