Outlaw

Most people know that both the Old West and Olde England had outlaws. The difference is that American criminals were outlaws until they were caught; then they became convicts. In England it was the conviction that made them outlaws.

Outlawry in England was a form of punishment for serious crime. It was originally used in various situations where some other, more normal, form of legal retribution could not be applied. For example, in Anglo-Saxon England the punishment for what we could today call a “crime” was to pay compensation to the victim or his family; a person who failed to do that could be declared an outlaw (the Saxons called him a laughlesman, “lawless man”). In later times outlawry was used against people who refused to appear in court when required. By at least the 16th century the process was fairly standardized: a person who failed to respond five times to fives summons spaced thirty days apart could be made outlaw. The theory was that failure to appear was tantamount to an admission and so the defendant could be punished.

An outlaw lost his legal rights. He was civiliter mortuus, civilly dead. He could not sue, though he could be sued. Before the Norman Conquest he was referred to as caput lupinum, to have the “head of a wolf,” meaning that he could be treated like a wolf: killed on sight. Sheriffs cried “Wolf’s Head” to call out the village to catch an outlaw; in this way the phrase eventually came to mean “outlaw” and thereby to become in time a popular name for English pubs. But by the middle of the 13th century, if not earlier, an outlaw could be killed only by a person attempting to capture him and then only if the outlaw tried to resist or to flee. By the time of Edward III (middle of the fourteenth century) only a sheriff could kill an outlaw.

An outlaw also lost his property, but not necessarily all of it. He lost his personal property. For more serious crimes such as murder or treason, he lost his real property and suffered “corruption of the blood”— in other words, he could not inherit property nor pass property on to his heirs. Otherwise he lost the income from his real property during his life but his heirs inherited it.

Personal property was taken by the crown; real property at first went to the outlaw’s lord, consistent with the feudal system. This taking of property later came to be the whole point of the procedure: outlawry was used in civil cases for debt, and the outlaw’s property — or at least some claim to it — passed to the creditor, who obtained it through a series of writs, similar to the way civil judgments are executed today.

An early outlaw lost not only his property but, in theory, his friends as well because he lost the protection of the frankpledge. The frankpledge was a group of men, commonly twenty, pledged to have certain responsibilities toward each other. One of those responsibilities was to turn in other members of the frankpledge who violated the law; those who did not could themselves be punished. So the outlaw, both as a legal and as a practical matter, had to avoid the members of his frankpledge.

(What of the most famous outlaw, Robin Hood? He is probably fictional. The earliest Robin Hood stories seem to date from the mid-to-late 14th century; Robin is supposed to have lived in the time of King John, about 150 years earlier. The late 14th century was a time of peasant unrest (there was a rebellion in 1381) and so such stories would have been appealing. Putting Robin in the time of King John was natural since he was already one of the traditional “bad kings” of England.)

Outlawry was not necessarily permanent. By the mid-13th century a sentence of outlawry passed in accordance with the law could be set aside by the king’s grace if it were found to be incorrect (the example given by Bracton, author of a famous legal treatise from that period, is of an alleged murderer whose victim is found alive after the outlawry); if not passed in accordance with established law and procedure it could be pronounced void (Bracton’s examples include defective warrants or orders, a defect in the original suit, and an allegedly-murdered man found alive before the outlawry). Later, a sentence of outlawry could be removed by appeal in the original case or by a separate action. But for the most part the outlaw faced the same alternatives that “outlaws” face today: hide in a city, where a stranger might find work; go to an empty or sparsely-populated area; or leave the country. As travel became easier, the last alternative became the most common.

Outlawry in civil cases was never used in the United States; England abolished it by statute in 1879. Outlawry in criminal cases existed in the colonies and early United States but became obsolete, in part because of the adoption of extradition treaties. England abolished outlawry in criminal cases in 1938.

But we still use the same ideas and procedures. Criminals, whom we can convict in absentia, lose certain civil rights and can regain them upon application to the court. Default judgments are taken when litigants fail to appear and can result in what is essentially forfeiture of property through various writ processes (execution, etc.). Disputes between property owners with normal title and those claiming through execution, sheriff’s deeds, etc. were as common in medieval England as they are today.