Definition
A Latin phrase meaning "for taking the excommunicated person." De excommunicato capiendo was a writ issuing out of the Court of Chancery in England, directed to the sheriff, commanding him to arrest and imprison a person who had been formally excommunicated by an ecclesiastical court and who had remained contumacious — that is, had refused to submit to the church's authority — for forty days or more. The writ served as the temporal arm of ecclesiastical discipline: because the church itself had no power to imprison, it called upon the secular authority to enforce its censures. Upon certification from the bishop that a named individual stood excommunicated and remained obstinate, Chancery would issue the writ, and the sheriff would execute it by taking the person into custody until submission or absolution.
The writ was one of the principal mechanisms by which the boundary between ecclesiastical and civil jurisdiction was managed in pre-modern English law. It was not a criminal process in the ordinary sense; the imprisonment was coercive rather than punitive, intended to compel the excommunicant's return to obedience rather than to punish a specific offense.
Common Confusion
De excommunicato capiendo is sometimes loosely equated with de contumace capiendo, but these are distinct writs. De contumace capiendo was a later form that developed as the practical successor to de excommunicato capiendo, particularly after ecclesiastical jurisdiction contracted in the nineteenth century. The earlier writ required certification of actual excommunication; the later writ focused on contumacy — defiance of ecclesiastical process — without necessarily requiring the full sentence of excommunication to have been pronounced. Researchers working in English legal history should verify which writ is at issue in any given source or proceeding.
Why It Matters in Research
This term belongs almost entirely to the history of English ecclesiastical law and the medieval and early modern relationship between church courts and the common law courts. Researchers will encounter it primarily in sources dealing with the jurisdiction of ecclesiastical courts, the operation of the Court of Chancery as an administrative body, or the history of writs.
The writ was formally abolished in England by the Ecclesiastical Courts Act 1813, which substituted the writ de contumace capiendo in its place. Any source dated after 1813 referring to de excommunicato capiendo is either using archaic terminology or discussing pre-abolition history. Researchers using ecclesiastical court records, chancery rolls, or older common law treatises should be alert to this transition.
The writ also illuminates the constitutional boundary that English law maintained between spiritual and temporal power. The church could excommunicate; it could not imprison. Only when the secular sovereign acted through the sheriff did enforcement become physical. This jurisdictional architecture recurs across many areas of Law Mind corpus research touching ecclesiastical courts, benefit of clergy, and the broader relationship between canon law and the common law.
Because the writ was essentially administrative — triggered by episcopal certificate rather than by adversarial proceeding — it leaves a documentary trail in chancery records and episcopal registers rather than in common law court records. Researchers unfamiliar with this should not expect to find it in Year Books or plea rolls in the same way as ordinary common law writs.
Historical Dictionary Support
Burrill's Law Dictionary identifies de excommunicato capiendo as a breve — a writ — by which the sheriff was commanded to take an excommunicated person and imprison him. Burrill's entry, though fragmentary in the available text, accurately reflects the core function of the writ: it was the instrument through which Chancery translated the ecclesiastical sentence into civil detention. Older English legal dictionaries, including Jacob's Law Dictionary and Tomlin's Law Dictionary, provide similar descriptions and consistently locate the writ's origin in the cooperative relationship between the ecclesiastical and secular jurisdictions.
What historical dictionaries tend not to address is the procedural mechanism by which the writ was obtained — the episcopal certificate of excommunication and continued contumacy — or the conditions under which a person might be released, which turned on submission to the ecclesiastical authority rather than on any secular judicial determination. Researchers relying solely on dictionary definitions will miss the procedural texture that appears only in chancery practice manuals and ecclesiastical law treatises such as Burn's Ecclesiastical Law.
Jurisdictional Note
De excommunicato capiendo was exclusively an English writ rooted in the particular structure of the English ecclesiastical court system. It has no direct American counterpart; the constitutional separation of church and state in the United States foreclosed any equivalent mechanism. Researchers working in American legal history will not encounter the writ in American sources except as a historical reference.
Encyclopedia Cross-Reference
Law Mind Encyclopedia — Ecclesiastical Courts
Law Mind Encyclopedia — Writs
Law Mind Encyclopedia — Court of Chancery (Historical)