Outlaw

Last updated

Newton Knight (1837-1922) was an anti-Confederate rebel soldier and founder of the "Free State of Jones" in the area in and around Jones County, Mississippi, at the height of the American Civil War. Newton-knight.jpg
Newton Knight (1837–1922) was an anti-Confederate rebel soldier and founder of the "Free State of Jones" in the area in and around Jones County, Mississippi, at the height of the American Civil War.

An outlaw, in its original and legal meaning, is a person declared as outside the protection of the law. In pre-modern societies, all legal protection was withdrawn from the criminal, so anyone was legally empowered to persecute or kill them.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.

Contents

A secondary meaning of outlaw is a person systematically avoiding capture by evasion and violence. These meanings are related and overlapping but not necessarily identical. A fugitive who is declared outside protection of law in one jurisdiction but who receives asylum and lives openly and obedient to local laws in another jurisdiction is an outlaw in the first meaning but not the second (one example being William John Bankes). A fugitive who remains formally entitled to a form of trial if captured alive but avoids capture because of the high risk of conviction and severe punishment if tried is an outlaw in the second sense but not the first (Sándor Rózsa was tried and sentenced merely to a term of imprisonment when captured).

In the common law of England, a "writ of outlawry" made the pronouncement Caput lupinum ("[Let his be] a wolf's head"), equating that person with a wolf in the eyes of the law. Not only was the subject deprived of all legal rights, 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]

Ancient Rome

Among other forms of exile, Roman law included the penalty of aquae et ignis interdictio ("interdiction of water and fire"). Such people 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]

The interdiction of water and fire 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]

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 a party 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] The earliest reference to outlawry in English legal texts appears in the 8th century. [5]

Criminal

The term outlawry refers to the formal procedure of declaring someone an outlaw, i.e., putting him outside 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 [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. 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 ]

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 I 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 I and returned to England.

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. [7]

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 treason or felony but failed to appear in court to defend himself, he was deemed convicted. [8] 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 when the offence was abolished in 1938. [9] [10] [11] Outlawry was, however, a living practice as of 1855: in 1841, William John Bankes, who had previously been an MP for several different constituencies between 1810 and 1835, was outlawed by due process of law for absenting himself from trial for homosexuality 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 harsh, including confiscation of chattels (movable property) left behind by the outlaw. [12]

In the civil context, outlawry became obsolete 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 the passing of the Civil Procedure Acts Repeal Act 1879 (42 & 43 Vict. c. 59) in 1879 [13] 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. [14] In Germany and Slavic countries during the 15th to 19th centuries, groups of outlaws were composed of former prisoners, soldiers, etc. Hence, they became an important social phenomenon. They lived off of robbery, and local inhabitants from lower classes often supported their activity. 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.

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 No 2a) [15] 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. [16] 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. [17]

As a political weapon

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

There have been several instances in military and political conflicts throughout history whereby one side declares the other as being "illegal", notorious cases being the use of proscription in the civil wars of the Roman Republic.[ citation needed ] In later times there was the notable case of Napoleon Bonaparte whom the Congress of Vienna, on 13 March 1815, declared had "deprived himself of the protection of the law". [18]

In modern times, the government of the First Spanish Republic, unable to reduce the Cantonal rebellion centered in Cartagena, Spain, declared the Cartagena fleet to be "piratic", which allowed any nation to prey on it. [19] Taking the opposite road, some outlaws became political leaders, such as Ethiopia's Kassa Hailu who became Emperor Tewodros II of Ethiopia. [20]

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 19th-century newspaper coverage and stories and 20th-century fiction and Western movies. Thus, "outlaw" is still commonly used to mean those violating the law [21] 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). "Outlaws and outlawry in medieval and early modern England". British National Archives . Retrieved 20 June 2012.
  2. 1 2 3 Berger, p. 507.
  3. ↑ Kelly 2006, p. 28.
  4. ↑ Caesar, Julius. De Bello Gallico, book VI, section XLIV.
  5. ↑ Carella, B (2015). "The Earliest Expression for Outlawry in Anglo-Saxon Law". Traditio. 70: 111–43. doi:10.1017/S0362152900012356. S2CID   233360789.
  6. ↑ Bauman, Zygmunt (n.d.). Modernity and Holocaust. p. [ page needed ].{{cite book}}: CS1 maint: year (link)
  7. ↑ Pollock & Maitland 1968, p. 53.
  8. ↑ Archbold Criminal Pleading, Evidence and Practice (30th ed., 1938) p. 71
  9. ↑ Archbold (30th ed., 1938) p. 71
  10. ↑ Archbold (31st ed., 1943) p. 98
  11. ↑ Administration of Justice (Miscellaneous Provisions) Act 1938, section 12
  12. ↑ William Blackstone (1753), Commentaries on the Laws of England, Book 3, Chapter XIX "Of Process"
  13. ↑ "The" Public General Acts: Passed in the ... Years of the Reign of ... Being the ... Session of the ... Parliament of the United Kingdom of Great Britain and Northern Ireland and the Church Assembly Measures. Law Journal Reports. 1879.
  14. ↑ Schmidt–Wiegand, Ruth (1998). "Vogelfrei". Handwörterbuch der Deutschen Rechtsgeschichte [Dictionary of the History of German Law]. 5: Straftheorie [Penal theory]. Berlin: Schmidt. pp. 930–32. ISBN   3-503-00015-1
  15. ↑ "Felons Apprehension Act (1865 No 2a)". New South Wales legislation. Retrieved 4 September 2013.
  16. ↑ ANZLH E-Journal. "Outlawry in Colonial Australia: The Felons Apprehension Acts 1865–1899" (PDF). Retrieved 4 September 2013.
  17. ↑ ANZLH E-Journal. "Outlawry in Colonial Australia: The Felons Apprehension Acts 1865–1899" (PDF). Retrieved 4 September 2013.
  18. ↑ Timeline: The Congress of Vienna, the Hundred Days, and Napoleon's Exile on St Helena, Center of Digital Initiatives, Brown University Library
  19. ↑ "Cartagena Public Salvation Board" (pdf) (in Spanish). The Murciano Canton. 24 July 1873. Retrieved 7 January 2015.
  20. ↑ Rubenson, King of Kings, pp. 36–39
  21. ↑ Black's Law Dictionary at 1255 (4th ed. 1951), citing Oliveros v. Henderson, 116 S.C. 77, 106 S.E. 855, 859.

Related Research Articles

A misdemeanor is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than administrative infractions and regulatory offences. Typically, misdemeanors are punished with prison time of no longer than one year, monetary fines, or community service.

Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear; that is, it is a larceny or theft accomplished by an assault. Precise definitions of the offence may vary between jurisdictions. Robbery is differentiated from other forms of theft by its inherently violent nature ; whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony in jurisdictions that distinguish between the two. Under English law, most forms of theft are triable either way, whereas robbery is triable only on indictment. The word "rob" came via French from Late Latin words of Germanic origin, from Common Germanic raub "theft".

<span class="mw-page-title-main">Bushranger</span> Australian outlaws active during the 19th century

Bushrangers were armed robbers and outlaws who resided in the Australian bush between the 1780s and the early 20th century. The original use of the term dates back to the early years of the British colonisation of Australia, and applied to transported convicts who had escaped into the bush to hide from the authorities. By the 1820s, the term had evolved to refer to those who took up "robbery under arms" as a way of life, using the bush as their base.

<span class="mw-page-title-main">Buggery Act 1533</span> English legislation criminalizing sodomy

The Buggery Act 1533, formally An Acte for the punishment of the vice of Buggerie, was an Act of the Parliament of England that was passed during the reign of Henry VIII.

An ex post facto law is a law that retroactively changes the legal consequences or status of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; it may extend the statute of limitations; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

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.

A Bill for the more effectual preventing clandestine Outlawries, usually referred to as the Outlawries Bill, is customarily the first bill on the agenda of the United Kingdom's House of Commons at the start of each session of Parliament. It is used symbolically to signal the Commons' right to consider matters not contained in the speech from the throne given by the Monarch.

Homo sacer is a figure of Roman law: a person who is banned and might be killed by anybody, but must not be sacrificed in a religious ritual. Italian philosopher Giorgio Agamben takes the concept as the starting point of his main work Homo Sacer: Sovereign Power and Bare Life (1998).

<span class="mw-page-title-main">Capital punishment in India</span>

Capital punishment in India is the highest legal penalty for crimes under the country's main substantive penal legislation, the Indian Penal Code, as well as other laws. Executions are carried out by hanging as the primary method of execution per Section 354(5) of the Criminal Code of Procedure, 1973 is "Hanging by the neck until dead", and is imposed only in the 'rarest of cases'.

An accessory is a person who assists, but does not actually participate, in the commission of a crime. The distinction between an accessory and a principal is a question of fact and degree:

<span class="mw-page-title-main">Clarke gang</span> Australian bushrangers

The Clarke gang was a group of bushrangers active in the mid-1860s in the southern goldfields of New South Wales, Australia. The membership of the gang fluctuated over time, the two core members being brothers Thomas and John Clarke, from the Braidwood district.

The major world religions have taken varied positions on the morality of capital punishment and, as such, they have historically impacted the way in which governments handle such punishment practices. Although the viewpoints of some religions have changed over time, their influence on capital punishment generally depends on the existence of a religious moral code and how closely religion influences the government. Religious moral codes are often based on a body of teachings, such as the Old Testament or the Qur'an.

Hostis humani generis is a legal term of art that originates in admiralty law. Before the adoption of public international law, pirates and slavers were generally held to be beyond legal protection and so could be dealt with by any nation, even one that had not been directly attacked.

<span class="mw-page-title-main">Vagrancy</span> Condition of homelessness without regular employment or income

Vagrancy is the condition of wandering homelessness without regular employment or income. Vagrants usually live in poverty and support themselves by travelling while engaging in begging, scavenging, or petty theft. In Western countries, vagrancy was historically a crime punishable with forced labor, military service, imprisonment, or confinement to dedicated labor houses.

<span class="mw-page-title-main">Offences Against the Person Act 1837</span> Act of Parliament of the United Kingdom

The Offences Against the Person Act 1837 was an act of the Parliament of the United Kingdom that amended the law to lessen the severity of punishment of offences against the person, lessening the severity of the punishment of offences.

<span class="mw-page-title-main">Fugitive Felon Act</span> United States federal law

The Fugitive Felon Act, abbreviated FFA, is a United States federal law that criminalizes interstate flight in order to avoid prosecution or giving testimony in state felony proceedings, a crime termed unlawful flight.

Caput lupinum or caput gerat lupinum are terms used in the English legal system and its derivatives. The terms were used in Medieval England to designate a person pronounced by the authorities to be a dangerous criminal, who could thus be killed without penalty.

<i>Vogelfrei</i> German term for a banished person

Vogelfrei in German usage denotes the status of a person on whom a legal penalty of outlawry has been imposed. However, the original meaning of the term referred to independence, being "free as a bird".

Capital punishment in Sudan is legal under Article 27 of the Sudanese Criminal Act 1991. The Act is based on Sharia law which prescribes both the death penalty and corporal punishment, such as amputation. Sudan has moderate execution rates, ranking 8th overall in 2014 when compared to other countries that still continue the practice, after at least 29 executions were reported.

<span class="mw-page-title-main">French criminal law</span>

French criminal law is "the set of legal rules that govern the State's response to offenses and offenders". It is one of the branches of the juridical system of the French Republic. The field of criminal law is defined as a sector of French law, and is a combination of public and private law, insofar as it punishes private behavior on behalf of society as a whole. Its function is to define, categorize, prevent, and punish criminal offenses committed by a person, whether a natural person or a legal person. In this sense it is of a punitive nature, as opposed to civil law in France, which settles disputes between individuals, or administrative law which deals with issues between individuals and government.

References

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.