In historical legal systems, an outlaw is declared as outside the protection of the law. In pre-modern societies, this takes the burden of active prosecution of a criminal from the authorities. Instead, the criminal is withdrawn all legal protection, so that anyone is legally empowered to persecute or kill them. Outlawry was thus one of the harshest penalties in the legal system, since the outlaw had only himself to protect himself, but it also required no enforcement on the part of the justice system. In early Germanic law, the death penalty is conspicuously absent, and outlawing is the most extreme punishment, presumably amounting to a death sentence in practice.
The concept is known from Roman law, as the status of homo sacer, and persisted throughout the Middle Ages. It was only in the modern period that the principle of habeas corpus was established, requiring that criminals must be judged in person by a court of law before they can legally be punished.
In the common law of England, a "Writ of Outlawry" made the pronouncement Caput gerat lupinum ("Let his be a wolf's head," literally "May he bear a wolfish head") with respect to its subject, using "head" to refer to the entire person (cf. "per capita") and equating that person with a wolf in the eyes of the law: Not only was the subject deprived of all legal rights of the law being outside of the "law", but others could kill him on sight as if he were a wolf or other wild animal.
Legal history
Ancient Rome
Among other forms of exile, Roman law included the penalty of interdicere aquae et ignis ("to forbid fire and water"). People so penalized were required to leave Roman territory and forfeit their property. If they returned, they were effectively outlaws; providing them the use of fire or water was illegal, and they could be killed at will without legal penalty.[1]
Interdicere aquae et ignis was traditionally imposed by the tribune of the plebs, and is attested to have been in use during the First Punic War of the third century BCE by Cato the Elder.[2] It was later also applied by many other officials, such as the Senate, magistrates,[3] and Julius Caesar as a general and provincial governor during the Gallic Wars.[4] It fell out of use during the early Empire. [5]
In the UK
In English common law, an outlaw was a person who had defied the laws of the realm, by such acts as ignoring a summons to court, or fleeing instead of appearing to plead when charged with a crime. In the earlier law of Anglo-Saxon England, outlawry was also declared when a person committed a homicide and could not pay the weregild, the blood-money, that was due to the victim's kin.
Criminal
The term Outlawry referred to the formal procedure of declaring someone an outlaw, i.e. putting him outside of the sphere of legal protection. In the common law of England, a judgment of (criminal) outlawry was one of the harshest penalties in the legal system, since the outlaw could not use the legal system to protect them if needed, e.g. from mob justice. To be declared an outlaw was to suffer a form of civil or social[6] death. The outlaw was debarred from all civilized society. No one was allowed to give him food, shelter, or any other sort of support – to do so was to commit the crime of aiding and abetting, and to be in danger of the ban oneself. In effect, (criminal) outlaws were criminals on the run who were "wanted dead or alive".
An outlaw might be killed with impunity; and it was not only lawful but meritorious to kill a thief flying from justice — to do so was not murder. A man who slew a thief was expected to declare the fact without delay, otherwise the dead man’s kindred might clear his name by their oath and require the slayer to pay weregild as for a true man.[7] Because the outlaw had defied civil society, that society was quit of any obligations to the outlaw — outlaws had no civil rights and could not sue in any court on any cause of action, though they were themselves personally liable.
By the rules of common law, a criminal outlaw did not need to be guilty of the crime he was outlawed for. If a man was accused of a crime and, instead of appearing in court and defending himself from accusations, fled from justice, he was committing serious contempt of court which was itself a capital crime; so even if he were innocent of the crime he was originally accused of, he was guilty of evading justice.
In the context of criminal law, outlawry faded not so much by legal changes as by the greater population density of the country, which made it harder for wanted fugitives to evade capture; and by the international adoption of extradition pacts.
The Third Reich made extensive use of the concept.[8] Prior to the Nuremberg Trials, the British jurist Lord Chancellor Lord Simon attempted to resurrect the concept of outlawry in order to provide for summary executions of captured Nazi war criminals. Although Simon's point of view was supported by Winston Churchill, American and Soviet attorneys insisted on a trial, and he was thus overruled.
Civil
There was also civil outlawry. Civil outlawry did not carry capital punishment with it, and it was imposed on defendants who fled or evaded justice when sued for civil actions like debts or torts. The punishments for civil outlawry were nevertheless harsh, including confiscation of chattels (movable property) left behind by the outlaw.
In the civil context, outlawry became obsolescent in civil procedure by reforms that no longer required summoned defendants to appear and plead. Still, the possibility of being declared an outlaw for derelictions of civil duty continued to exist in English law until 1879 and in Scots law until the late 1940s. Since then, failure to find the defendant and serve process is usually interpreted in favour of the defendant, and harsh penalties for mere nonappearance (merely presumed flight to escape justice) no longer apply.
In other countries
Outlawry also existed in other ancient legal codes, such as the ancient Norse and Icelandic legal code. These societies did not have any police force or prisons and criminal sentences were therefore restricted to either fines or outlawry.
Outlawing as political weapon
There have been many instances in military and/or political conflicts throughout History whereby one side declares the other as being "illegal", notorious cases being the use of Proscription in Republican Rome's civil wars. In later times there was the notable case of emperor Napoleon whom the Congress of Vienna, in 13 March 1815, declared to be "outside the law". In modern times, the government of the First Spanish Republic, unable to reduce the Cantonalist rebellion centered in Cartagena, Spain, declared the Cartagena fleet to be "piratic", which allowed any nation to prey on it.
Taking the opposite road, some outlaws became political leaders, such as Ethiopia's Kassa Hailu who became Emperor Tewodros II of Ethiopia.
Popular usage
Though the judgment of outlawry is now obsolete (even though it inspired the pro forma Outlawries Bill which is still to this day introduced in the British House of Commons during the State Opening of Parliament), romanticised outlaws became stock characters in several fictional settings. This was particularly so in the United States, where outlaws were popular subjects of newspaper coverage and stories in the 19th century, and 20th century fiction and Western movies. Thus, "outlaw" is still commonly used to mean those violating the law[9] or, by extension, those living that lifestyle, whether actual criminals evading the law or those merely opposed to "law-and-order" notions of conformity and authority (such as the "outlaw country" music movement in the 1970s).
See also
References
- ^ Berger, Adolf. "Interdicere aqua et igni," in Encyclopedic Dictionary of Roman Law, p. 507
- ^ Kelly, Gordon P. A history of exile in the Roman republic. Cambridge University Press, 2006, p. 28
- ^ Berger, 507.
- ^ Caesar, Julius. De Bello Gallico, book VI, section XLIV.
- ^ Berger, 507.
- ^ Zygmunt Bauman, "Modernity and Holocaust".
- ^ F. Pollock and F. W. Maitland, The History of English Law Before the Time of Edward I (1895, 2nd. ed., Cambridge, 1898, reprinted 1968).
- ^ Shirer,"The Third Reich."
- ^ Black's Law Dictionary at 1255 (4th ed. 1951), citing Oliveros v. Henderson, 116 S.C. 77, 106 S.E. 855, 859.
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