Outlaw

Lore & Background

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. Women were declared 'waived' rather than outlawed, but it was effectively the same punishment. The earliest reference to outlawry in English legal texts appears in the 8th century. 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. 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. 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. 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.

Reader's Guide

Outlawry was one of the harshest penalties in legal systems, effectively a civil or social death. The outlaw could not use the legal system for protection, and no one was allowed to give him food, shelter, or any other support—to do so was to commit the crime of aiding and abetting. An outlaw might be killed with impunity, and it was not only lawful but meritorious to kill a thief fleeing from justice. 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. 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. Though the judgment of outlawry is now obsolete, romanticised outlaws became stock characters in several fictional settings, particularly in the United States, where outlaws were popular subjects of 19th-century newspaper coverage and stories and 20th-century fiction and Western movies.

Did You Know?

• 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.
• 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.
• Women were declared 'waived' rather than outlawed, but it was effectively the same punishment.
• 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.