Outlawry

Outlawry was a form of legal punishment in which a person was placed outside the protection of the law, forfeiting all rights and property. Typically, an accused person who fled from justice or did not appear before a court could be declared an outlaw. Once a person received this designation, they could be pursued and killed by anyone without any legal repercussions. The concept originated in Anglo-Saxon England as a method of enforcing laws during a time when local governments did not have organized police forces or standing armies. Forms of outlawry later spread to other parts of Europe and were even brought to the American colonies as part of English common law.

Background

The concept of banishing, or removing, a person from a community or social group has likely been used as a form of punishment since ancient times. One of the earliest known examples of banishment as a legal punishment was found in the laws of ancient Greece, where convicted murderers were forced into exile. Roman law also allowed a form of exile in which a Roman citizen found guilty of a serious crime could choose voluntary banishment over the death sentence. The Romans had various degrees of banishment, with some sentences being temporary and others permanent. In most cases, if an exiled person illegally returned to their community or region, they risked immediate execution at the hands of any Roman citizen. One obscure facet of Roman law was the concept of homo sacer, or “sacred man.” A person subject to this status was considered to have been abandoned by both civil and religious law and could be killed without repercussion but could not be sacrificed as part of a religious ritual.

The Germanic tribes that populated much of northern and central Europe followed a code of laws the Romans called the leges barbarorum, or “laws of barbarians.” After the fall of Rome in the late fifth century, the Germanic tribes began to spread across Europe. Three of these tribes—the Angles, Saxons, and Jutes—traveled to the island of Britain and established several kingdoms there by the sixth century. The laws of the Anglo-Saxon kingdoms incorporated elements from both Roman law and that of the earlier Germanic peoples. A set of laws believed written in the seventh century by King Æthelberht is considered the oldest known example of an Anglo-Saxon legal system.

Overview

Anglo-Saxon laws were considered the judgments or “dooms” handed down by the king. Although each set of laws incorporated local legal traditions, they were based on a type of compensation system tied to the social standing of both the accused and the victim. The law established a specific value, or wergeld, that the accused was ordered to pay depending on their status as a noble, freeman, or enslaved individual. The accused was ordered to pay higher amounts of wergeld if they committed a more serious offense or if that offense was committed against a higher social class.

If a defendant failed to appear before a representative of the king or local court or broke his oath and fled from punishment after a verdict, the Anglo-Saxon legal system allowed that person to be declared outside the protection of the law. The origin of the term outlaw comes from the Old English word utlaga, which simply means “one placed outside the law.” A person who was deemed to be an outlaw forfeited all legal rights and could have their property seized by the king. More serious was the loss of any legal protection, meaning an outlaw could be hunted down and lawfully killed by anyone. A sentence of outlawry was seen as a way to ensure people would adhere to the laws of the kingdom and follow the orders of the king. Medieval societies had no police organizations to enforce laws, and kings relied on armies provided by loyal nobles and trained knights to fight battles. Outlawry placed the enforcement of the laws in the hands of the general populace, who were usually more than willing to uphold the social standards of the time.

In medieval England, only men over the age of fourteen could be declared outlaws, and at first, only for criminal offenses. Later English law allowed the sentence to be used in civil trials, typically in cases involving large debts. Women were declared to have been “waived,” which was, in essence, the same punishment as outlawry, the only difference being women did not have to swear an oath in court. When a defendant did not attend court, a sheriff would be dispatched to track down and arrest the person. If the fugitive could not be found, the sheriff would file five court proclamations ordering the defendant to appear and address the charges. After the fifth proclamation, the absent defendant was officially declared an outlaw. In some cases, declarations of outlawry were temporary and were reversed after a period of time. Permanent outlawry could only be reversed if a defendant personally appeared in court and pleaded for a pardon or proved that an error had been made.

Outlawry was also used in Scandinavian countries, where it generally amounted to an automatic death sentence. The judgment was usually applied for crimes such as murder, rape, kidnapping, armed robbery, and what was considered to be “malevolent sorcery.” Many Scandinavian societies allowed the practice of honor killings in which a person and their family were allowed to seek revenge for injustices done against them. As a result, a declaration of outlawry was a social stigma that equated to a mark of death. The only legal recourse to reverse a charge of outlawry was to pay a large fine to public officials.

Because outlawry was a part of English common law, it was also used as a legal punishment in the American colonies. After the United States declared its independence, several states and territories retained the punishment, but it was never used by the federal government. The practice was officially abolished in England in 1879 and in the rest of the United Kingdom by 1949. The sentence survived in some places in the United States into the twentieth century. North Carolina had outlawry statutes on its legal books into the twenty-first century, although the statutes had long since been declared unconstitutional and were not enforced.

Bibliography

Byrne, Eugene. “Q&A: When and Why Was the Medieval Law of Outlawry Eventually Repealed?” History Extra, 26 June 2017, www.historyextra.com/period/medieval/qa-when-and-why-was-the-medieval-law-of-outlawry-eventually-repealed. Accessed 28 Nov. 2024.

Carella, Bryan. “The Earliest Expression for Outlawry in Anglo-Saxon Law.” Cambridge University Press, 27 June 2017, www.cambridge.org/core/journals/traditio/article/earliest-expression-for-outlawry-in-anglosaxon-law/4639444DB5AF7A85092D6D565D9729EF. Accessed 28 Nov. 2024.

Jones, Timothy S. Outlawry in Medieval Literature. Palgrave Macmillan, 2010.

Kapp, M. Keith. “Outlawry.” Encyclopedia of North Carolina, 1 Jan. 2006, www.ncpedia.org/outlawry. Accessed 28 Nov. 2024.

Lambert, Tom, and Thomas Benedict Lambert. Law and Order in Anglo-Saxon England. Oxford UP, 2017.

McCoy, Daniel. “Outlawry in the Viking Age.” Norse Mythology for Smart People, norse-mythology.org/outlawry-viking-age. Accessed 28 Nov. 2024.

Mills, Catherine. “Giorgio Agamben (1942– ).” Internet Encyclopedia of Philosophy, www.iep.utm.edu/agamben. Accessed 28 Nov. 2024.

“Outlaws and Outlawry in Medieval and Early Modern England.” The National Archives, www.nationalarchives.gov.uk/help-with-your-research/research-guides/outlaws-outlawry-medieval-early-modern-england. Accessed 28 Nov. 2024.