Definition
De excommunicato is a Latin legal phrase meaning "concerning an excommunicated person." In historical English law, it refers to a category of writs and legal procedures governing the civil status and treatment of persons who had been formally excommunicated by the Church—that is, excluded from the sacraments and fellowship of the Roman Catholic or Church of England communion by ecclesiastical authority.
The most practically significant instrument in this category was the writ de excommunicato capiendo ("for taking the excommunicated person"), by which the royal courts would, at the request of ecclesiastical authorities, order the arrest and imprisonment of a person who had been excommunicated and had not sought reconciliation with the Church within forty days. The Crown's secular arm thus enforced ecclesiastical discipline. A companion writ, de excommunicato deliberando (also rendered in some sources as the breve de excommunicato rando, a contracted form appearing in Burrill), operated in the opposite direction: it secured the release of an excommunicated person from prison once the Church certified that he had made satisfaction and been absolved.
Together, these writs formed a procedural bridge between ecclesiastical and temporal jurisdiction, reflecting the medieval and early modern English constitutional arrangement in which the church courts held broad authority over matters of faith, morals, and personal status, while the Crown supplied the coercive power to enforce their judgments.
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Common Confusion
De excommunicato is sometimes loosely treated as a single writ, but it was in fact a genus of writs, each with distinct operative effect. The writ de excommunicato capiendo imprisoned the offender; the writ de excommunicato deliberando released him. Conflating the two produces errors in reading historical pleading records or registers of writs. Burrill's compressed entry—under what appears to be an abbreviated heading—addresses only the release writ. Researchers should not assume any single entry captures the full procedural picture.
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Why It Matters in Research
This term belongs to a category of legal material that is almost entirely historical. No modern common-law jurisdiction retains the practice of imprisoning individuals at the request of church courts. Researchers will encounter de excommunicato primarily in:
1. Pre-nineteenth-century English legal sources, including the Registrum Omnium Brevium (Register of Writs), Fitzherbert's Natura Brevium, and Blackstone's Commentaries (3 Bl. Com. 102 addresses the release writ directly). These are the authoritative sources for writ form and procedure.
2. Ecclesiastical court records and chancery materials from the medieval period through the early modern era. Understanding this writ is essential for interpreting what happened procedurally when excommunication appears in those records.
3. Constitutional history scholarship on church-state relations in England. The writ system around excommunication is one of the clearest illustrations of how royal and ecclesiastical jurisdictions were formally interlocked rather than fully separated.
A research trap: the writ de excommunicato capiendo was not abolished immediately upon the Reformation. The Church of England retained its court system, and the enforcement mechanism persisted in modified form well into the nineteenth century. The Ecclesiastical Courts Act 1813 and subsequent Victorian reforms progressively dismantled it, but researchers dealing with English sources from any period before 1800 should not assume these procedures were inoperative.
Burrill's entry is narrow—covering only the release writ—and a researcher relying solely on it would miss the capiendo (arrest) side of the procedure entirely. Cross-referencing Blackstone and Fitzherbert is essential for the full picture.
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Historical Dictionary Support
Burrill's Law Dictionary provides a compressed entry under what appears to be an abbreviated Latin heading, defining the relevant writ as one "for delivering an excommunicated person from prison, where he had made satisfaction to the church," with citation to the Register of Writs (Reg. Orig. 65b), Fitzherbert's Natura Brevium (F. N. B. 63a), and Blackstone's Commentaries (3 Bl. Com. 102). This is accurate as far as it goes, but the entry is one-directional: it captures the release mechanism only.
Blackstone's treatment in Book III is more complete and situates the writ within the broader system of royal enforcement of ecclesiastical censures. Fitzherbert's Natura Brevium, a fifteenth-century guide to the forms of writs, remains the primary technical source for writ procedure in this area.
What historical dictionaries collectively miss is any account of the reform and abolition of these procedures in the nineteenth century, which is natural given publication dates but requires the researcher to supply that context independently.
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