Updated: Feb 17
We take the protection of the legal system for granted, but there were individuals in years gone by who, by their actions, forfeited such protection and became outlaws. Find out the history of this aspect of law and discover the very recent example of the last outlaw.
We’ve previously taken a look at some of the Roman legal customs; one particular custom developed over subsequent centuries and entered the legislative systems of various countries, including the United Kingdom.
Romans took their oaths very seriously. Those who broke the oaths that they had taken could be subject to the punishment of homo sacer, which is best translated as “the man who is set apart”. Those punished in this manner were cast out, losing the protection of the law. They could be killed by anyone and whoever did so would face no legal sanction. As well as this, they lost all legal rights, including the right to own land.
The concept of the outcast, unprotected and a legitimate target for anyone who sought to kill them, would endure for centuries after the fall of the Roman Empire. The Old Norse for such people was ‘utlagr’ or ‘outside the law’ which has come into English as ‘outlaw’.
Under English common law, a writ of outlawry used the wording “Caput gerat lupinum” (which means ‘may he have the head of a wolf’) which meant that in the eyes of the law, the person would have the same protection from attack as if he were a wolf or wild animal – in effect, none. They could be hunted and killed with impunity by anybody. Outlaws were also prevented from receiving support, such as food or shelter and if anyone did render them such support, they were at risk of being charged with aiding and abetting the outlaw – and could be outlawed themselves.
Outlawry could only be used against men over the age of fourteen. There were two possible types of outlawry – criminal or civil. The criminal variety was most often caused by indictments for treason, rebellion, conspiracy or other serious felonies, whilst civil outlawries were usually the result of failure to pay debts. During the early mediaeval period, most outlawries were for criminal acts although by the late mediaeval period, both criminal and civil actions were included in outlawries. The punishments for civil outlawry were nevertheless harsh, and those subject to it could find that all their movable property (known as chattels), left behind when they fled, was confiscated by the courts.
A criminal outlaw did not need to be guilty of the crime for which he was outlawed. If he was accused of a crime and did not appear in court to defend himself against the accusations, he was then guilty of evading justice and so the process of outlawry began. It fell to the sheriff to find and apprehend the defendant; he was ordered to do this by a writ of capias. In cases of civil and minor criminal matters, the writ of capias could be issued three times in succession, and in cases of more serious crimes such as treason, rebellion or murder, once or twice.
If, despite his best efforts, the sheriff was unable to find the defendant, the courts would then issue a writ of exigent, which directed the sheriff to issue a proclamation at five successive county courts which demanded the defendant appear to answer the charges against him. If there was no sign of the defendant by the fifth time the proclamation was read, he would then be declared an outlaw.
In some towns, including Battle, Beverley, Colchester, Colchester, Durham, Hexham, Norwich, Ripon, Wells, Winchester, Westminster and York, churches could provide sanctuary to those subject to outlawry. They were allowed to stay there for a limited period, between thirty and forty days, during which time the clergy would make representations on their behalf.
After that time, they were handed over and presented with a choice – either undergo the trial that they had fled, or abjure the realm, which meant they had to leave the kingdom within a particular time and could not return without the permission of the king.
If an individual was involved in treason, rebellion or homicide, their lands and possessions would usually be seized and would return to the ownership of the crown in a process known as ‘escheat’.
In order to reverse a declaration of outlawry, the outlaw had to appear in person before the court. Two possible reasons for a reversal were that an error had been made in the court’s deliberation that led to the outlawry in the first place, or that a pardon had been issued, thereby removing the need for the writ of outlawry. If the reason for an individual being declared an outlaw was that they had committed a serious offence, they could have the declaration reversed by petitioning parliament.
The end of outlawry
As the years went on and the law regarding arrest, imprisonment and trial became more codified, criminal outlawry grew progressively rarer. After the eighteenth century, it is hardly seen at all.
Civil outlawry still existed in English law until 1879 when the Criminal Code (Indictable Offences) Act came into force. In Scotland, it remained in being until December 1949. The last Scottish outlaw was Charles Shaw Bland, who jumped bail in 1949 after being charged with housebreaking and assault.