Outlaw

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Henry Danvers, Earl of Danby, was outlawed in 1597 by a coroner's court for the murder of Henry Long. He went to France and joined the French army; two years later he was pardoned by Queen Elizabeth and returned to England. Portrait-of-Henry-Danvers-Earl-of-Danby.jpg
Henry Danvers, Earl of Danby, was outlawed in 1597 by a coroner's court for the murder of Henry Long. He went to France and joined the French army; two years later he was pardoned by Queen Elizabeth and returned to England.

In historical legal systems, an outlaw is declared as outside the protection of the law. In pre-modern societies, the criminal is withdrawn all legal protection, so that anyone is legally empowered to persecute or kill them.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. 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.

Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilisations and is set in the wider context of social history. Among certain jurists and historians of legal process, it has been seen as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts; some consider it a branch of intellectual history. Twentieth century historians have viewed legal history in a more contextualised manner more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyse case histories from the parameters of social science inquiry, using statistical methods, analysing class distinctions among litigants, petitioners and other players in various legal processes. By analysing case outcomes, transaction costs, number of settled cases they have begun an analysis of legal institutions, practices, procedures and briefs that give us a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

Roman law Legal system of Ancient Rome (c. 449 BC - AD 529)

Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman Emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.

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In the common law of England, a "Writ of Outlawry" made the pronouncement Caput 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 the "law", but others could kill him on sight as if he were a wolf or other wild animal.[ citation needed ] Women were declared "waived" rather than outlawed but it was effectively the same punishment. [1]

Common law Law developed by judges

In law, common law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

Caput lupinum or caput gerat lupinum is a term used in the English legal system and its derivatives. The Latin term literally means "wolf's head" or "wolfish head", and refers to a person considered to be an outlaw, as in, e.g., the phrase caput gerat lupinum. Black's Law Dictionary, 8th edition reads "an outlawed felon considered a pariah – a lone wolf – open to attack by anyone." A person designated a caput lupinum was a criminal whose rights had been waived. As such, he or she could be legally harmed by any citizen.

Synecdoche class of metonymy, often by means of either mentioning a part for the whole or conversely the whole for one of its parts

A synecdoche is a figure of speech in which a term for a part of something refers to the whole of something or vice versa. A synecdoche is a class of metonymy, often by means of either mentioning a part for the whole or conversely the whole for one of its parts. Examples from common English expressions include "suits", "boots", and "America".

Ancient Rome

Among other forms of exile, Roman law included the penalty of interdicere aquae et ignis ("to forbid water and fire"). 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. [2]

Exile event by which a person is forced away from home

To be in exile means to be away from one's home, while either being explicitly refused permission to return or being threatened with imprisonment or death upon return.

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 BC by Cato the Elder. [3] It was later also applied by many other officials, such as the Senate, magistrates, [2] and Julius Caesar as a general and provincial governor during the Gallic Wars. [4] It fell out of use during the early Empire. [2]

First Punic War First war between the Roman Republic and Carthage, fought between 264 and 241 BCE

The First Punic War was the first of three wars fought between Ancient Carthage and the Roman Republic, the two great powers of the Western Mediterranean. For 23 years, in the longest continuous conflict and greatest naval war of antiquity, the two powers struggled for supremacy, primarily on the Mediterranean island of Sicily and its surrounding waters, and also in North Africa.

Cato the Elder Politician, writer and economist (0234-0149)

Cato the Elder, born Marcus Porcius Cato and also known as Cato the Censor, Cato the Wise, and Cato the Ancient, was a Roman senator and historian known for his conservatism and opposition to Hellenization. He was the first to write history in Latin.

Roman Senate A political institution in ancient Rome

The Roman Senate was a political institution in ancient Rome. It was one of the most enduring institutions in Roman history, being established in the first days of the city of Rome,. It survived the overthrow of the kings in 509 BC, the fall of the Roman Republic in the 1st century BC, the division of the Roman Empire in 395 AD, the fall of the Western Roman Empire in 476 AD, and the barbarian rule of Rome in the 5th, 6th, and 7th centuries.

Also see: Homo sacer.

England

A statue of Robin Hood, a heroic outlaw in English folklore Robin Hood Memorial.jpg
A statue of Robin Hood, a heroic outlaw in English folklore

In English common law, an outlaw was[ when? ] 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. [1]

English law legal system of England and Wales

English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.

A summons is a legal document issued by a court or by an administrative agency of government for various purposes.

Crime unlawful act forbidden and punishable by criminal law

In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term "crime" does not, in modern criminal law, have any simple and universally accepted definition, though statutory definitions have been provided for certain purposes. The most popular view is that crime is a category created by law; in other words, something is a crime if declared as such by the relevant and applicable law. One proposed definition is that a crime or offence is an act harmful not only to some individual but also to a community, society or the state. Such acts are forbidden and punishable by law.

Criminal

The term outlawry referred to the formal procedure of declaring someone an outlaw, i.e. putting him outside the sphere of legal protection. [1] 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 for protection, e.g. from mob justice. To be declared an outlaw was to suffer a form of civil or social [5] 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. A more recent concept of "wanted dead or alive" is similar, but implies that a trial is desired (namely if the wanted person is returned alive), whereas outlawry precludes a trial.[ citation needed ]

Civil death is the loss of all or almost all civil rights by a person due to a conviction for a felony or due to an act by the government of a country that results in the loss of civil rights. It is usually inflicted on persons convicted of crimes against the state or adults determined by a court to be legally incompetent because of mental disability.

Social death is the condition of people not accepted as fully human by wider society. It is used by sociologists such as Zygmunt Bauman and historians of slavery and the Holocaust to describe the part played by governmental and social segregation in that process. Examples of social death are:

Aiding and abetting is a legal doctrine related to the guilt of someone who aids or abets in the commission of a crime. It exists in a number of different countries and generally allows a court to pronounce someone guilty for aiding and abetting in a crime even if they are not the principal offender.

An outlaw might be killed with impunity; and it was not only lawful but meritorious to kill a thief fleeing 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. [6]

By the rules of common law, a criminal outlaw did not need to be guilty of the crime for which he was an outlaw. If a man was accused of a treason or felony but failed to appear in court to defend himself, he was deemed to be convicted of the said offence. [7] If he was accused of a misdemeanour, then he was guilty of a serious contempt of court which was itself a capital crime.[ citation needed ]

In the context of criminal law, outlawry faded out, 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 adoption of international extradition pacts.[ citation needed ] It was obsolete by the time the offence was abolished in 1938. [8] [9] [10] Outlawry was, however, a living practice as of 1855: in 1841, a William John Bankes, formerly a MP on several times 1810...1835, was outlawed by due process of law for absenting himself from trial for indecent exposure, and died in 1855 in Venice as an outlaw.

Civil

There was also a doctrine of civil outlawry. Civil outlawry did not carry the sentence of capital punishment. It was however 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. [11]

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 plaintiff, and harsh penalties for mere nonappearance (merely presumed flight to escape justice) no longer apply.[ citation needed ]

In other countries

Erik the Red was outlawed by the Icelandic Althing for three years (so in about 982 he went viking and explored Greenland). Eric the Red.png
Erik the Red was outlawed by the Icelandic Althing for three years (so in about 982 he went viking and explored Greenland).
In 1878, Ned Kelly and his gang of bushrangers were outlawed by the Government of Victoria, Australia Ned Kelly in 1880.png
In 1878, Ned Kelly and his gang of bushrangers were outlawed by the Government of Victoria, Australia

Outlawry also existed in other ancient legal codes, such as the ancient Norse and Icelandic legal code.

In early modern times, the term Vogelfrei and its cognates came to be used in Germany, the Low Countries and Scandinavia, referring to a person stripped of his civil rights being "free" for the taking like a bird. [12] In Germany and Slavic countries in 15th–19th centuries groups of outlaws composed from former prisoners, soldiers etc. became an important social phenomenon. They lived from robbery and their activity was often supported by local inhabitants from lower classes (as a form of a social people resistance against oppressive political and economic systems). The best known are Juraj Jánošík and Jakub Surovec in Slovakia, Oleksa Dovbush in Ukraine, Rózsa Sándor in Hungary, Schinderhannes and Hans Kohlhase in Germany etc.

The concept of outlawry was reintroduced to British law by several Australian colonial governments in the late 19th century to deal with the menace of bushranging. The Felons Apprehension Act (1865) [13] of New South Wales provided that a judge could, upon proof of sufficiently notorious conduct, issue a special bench warrant requiring a person to submit themselves to police custody before a given date, or be declared an outlaw. An outlawed person could be apprehended "alive or dead" by any of the Queen's subjects, "whether a constable or not", and without "being accountable for using of any deadly weapon in aid of such apprehension." Similar provisions were passed in Victoria and Queensland. [14] Although the provisions of the New South Wales Felons Apprehension Act were not exercised after the end of the bushranging era, they remained on the statute book until 1976. [15]

The Third Reich made extensive use of outlawry in the persecution of Jews or other persons deemed undesirable to the state. [16]

As political weapon

Napoleon Bonaparte on HMS Bellerophon after his surrender to the British in 1815. Eastlake - Napoleon on the Bellerophon.jpg
Napoleon Bonaparte on HMS Bellerophon after his surrender to the British in 1815.

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.[ citation needed ] In later times there was the notable case of Napoleon Bonaparte whom the Congress of Vienna, on 13 March 1815, declared he had "deprived himself of the protection of the law". [17]

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.[ citation needed ]

Taking the opposite road, some outlaws became political leaders, such as Ethiopia's Kassa Hailu who became Emperor Tewodros II of Ethiopia.[ citation needed ]

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 [18] 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

Notes

  1. 1 2 3 National Archives staff (26 January 2012). "The outlaw in medieval and early modern England". British National Archives . Retrieved June 20, 2012.
  2. 1 2 3 Berger, p. 507.
  3. Kelly 2006, p. 28.
  4. Caesar, Julius. De Bello Gallico, book VI, section XLIV.
  5. Bauman, Zygmunt (n.d.). Modernity and Holocaust. p. [ page needed ].
  6. Pollock & Maitland 1968, p. 53.
  7. Archbold Criminal Pleading, Evidence and Practice (30th ed., 1938) page 71
  8. Archbold (30th ed., 1938) page 71
  9. Archbold (31st ed., 1943) page 98
  10. Administration of Justice (Miscellaneous Provisions) Act 1938, section 12
  11. William Blackstone (1753), Commentaries on the Laws of England, Book 3, Chapter XIX "Of Process"
  12. Schmidt–Wiegand, Ruth (1998). "Vogelfrei". Handwörterbuch der Deutschen Rechtsgeschichte [Dictionary of the History of German Law]. 5: Straftheorie [Penal theory]. Berlin: Schmidt. pp. 930–932. ISBN   3-503-00015-1
  13. New South Wales government website. "Text of the Felons Apprehension Act (1865)" (PDF). Retrieved 4 September 2013.
  14. ANZLH E-Journal. "Outlawry in Colonial Australia: The Felons Apprehension Acts 1865-1899" (PDF). Retrieved 4 September 2013.
  15. ANZLH E-Journal. "Outlawry in Colonial Australia: The Felons Apprehension Acts 1865-1899" (PDF). Retrieved 4 September 2013.
  16. Shirer, William L. (2011). The Rise and Fall of the Third Reich: A History of Nazi Germany. pp. 233, 439.
  17. Timeline: The Congress of Vienna, the Hundred Days, and Napoleon's Exile on St Helena, Center of Digital Initiatives, Brown University Library
  18. 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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