Excommunication

An ecclesiastical sentence pronounced by a spiritual judge against a Christian man, by which he is excluded from the body of the church, and disabled to bring any action or sue any person in the common-law courts.

Bac. Abr.; Co. Litt. 133, 134; Nance v. Busby, 91 Tenn. 303, 18 S. W. 874, 15 L. R. A. 801.

In early times It was the most frequent and the most severe method of executing ecclesiastical censure, although proper to be used, said Justinian (Nov. 123), only upon grave occasions. The effect of it was to remove the excommunicated person not only from the sacred rites, but from the society of men. In a certain sense it interdicted the use of fire and water, like the punishment spoken of by Cajsar (lib. 6, de Bell. Gall.) as inflicted by the Druids. Innocent IV. called it the nerve of ecclesiastical discipline. On repentance, the excommunicated person was absolved and received again to communion. These are said to be the powers of binding and loosing,—the keys of the kingdom of heaven. This kind of punishment seems to have been adopted from the Roman usage of interdicting the use of Are and water. Fr. Duaren, De Sacris Eccles. Ministeriis, lib.

1, cap. 3. See Ridley, View of the Civil and Ecclesiastical Law 245.

It was the process by which the English ecclesiastical courts enforced their process. If the excommunicate did not submit within 40 days, the court signified the fact to the crown and thereon a writ excommunicato capiendo issued to the sheriff, who took and imprisoned the offender till he submitted. When he submitted, the bishop signified this fact, and a writ de excommunicato deliberando (to release an excommunicate) issued. An excommunicate could not serve upon juries, be a witness in any court, or bring an action, real or personal. In 1813 the writ de contumace capiendo was substituted to enforce appearance and punish contempt, the rules applicable being the same as before. Excommunication is still a punishment by the earlier writ for offences of ecclesiastical cognizance, but the only penalty is imprisonment not exceeding six months; 1 Holdsw.

Hist. E. L. 400.

For the form of the writ see id.

433.

EXCOMMUNICATO CAPIENDO (Lat. for taking an excommunicated person). In Ecclesiastical Law. A writ issuing out of chancery, founded on a bishop's certificate that the defendant had been excommunicated, returnable to the king's bench.

4 Bla. Com. 415; Bac. Abr. Excommunication, E. See Cro. Eli/.. 224, 680; Cro. Car. 421; Cro. Jac. 567; 1 Salk. 293.