OUTLAWRY. This term, which is derived from the Saxon Utlagh or Oh lagh, signifies an exclusion from the benefits and protection of the law. In English law it is a punishment consequent upon a flight from justice, or a contu macious neglect or refusal to appear and answer for a civil or criminal trans gression, in obedience to the process of a court of competent jurisdiction. By the laws of the Anglo-Saxons, continued after the Conquest, an outlaw, who was also called laughlesman (lawless man) and frendlesman (friendless man), lost his liberam leqem, and had no protection from the frankpledge in the decennary in which he was sworn. A boy under twelve years of age, not being sworn to his law in the decennary, could not be outlawed ; and for the same reason a woman who contumaciously refused to appear could not be outlawed, but was said to be waived (derelicts), and incurred the same penal consequences as an out law.
For centuries after the Conquest an outlaw was said " Gerere caput Inpinum," and might be lawfully killed by any one who met him. Bracton, who wrote about the end of the reign of Henry III., declares that an outlaw " might.be killed by all, especially if he defended himself or ran away, so that it was difficult to take him ; but that when once taken, his life and death were in the king's hands; and if any man then killed him he must answer for it as in the case of any other homicide." (Bracton, lib. iii. cap. 13.) That this practice and law prevailed in his time is further proved by another passage in Bracton (lib. iii. c. 14). Fleta, who wrote rather later than Bracton, mentions the same law, and justifies it. (Fleta, lib. i. cap. 27.) Lord Coke (Co. Lit., 128 b, where he refers to the Year Book,' 2 Ass., p1. 3) ap pears to be wrong in claiming for the judges in the reign of Edward Ili. the merit of abolishing this barbarous prac tice. The 'Year Book' as cited, and another report of the same case iu Fitz herbert's ' Abridgement,' tit. Corone, 148, contain no such resolution, and the case from which it is obvious that Lord Coke derived the above statement, is clearly an authority to show the continuance of the old practice ; indeed so late as the reign of Philip and Mary, Staunforde, in his Pleas of the Crown,' mentions the above case, and speaks of the law upon this subject as doubtful. However, though the technical (mar ty of homicide so committed may have been question.
able, there is no doubt that the practice of killing outlaws like wild beasts had ceased long before Staunforde's time.
The consequences of outlawry are the forfeiture of goods and chattels univer sally. Where it takes place upon a prose cution for treason or felony, it amounts to a conviction and attainder of the offence charged, and therefore all the outlaw's real property, as well as his personalty, is forfeited. Where it takes place upon criminal prosecutions for misdemeanors, or upon civil actions, the profits only of the defendant's lands are, during his life, forfeited to the crown. The outlaw,
having neither the privilege nor protec tion of the law, is incapable of maintain ing any action real or personal ; at the common law he could not be a juror, as he was not " liber et legalis ;" and he is expressly excluded from acting as a juror by stet. 6 Geo. IV. c. 50, § 3.
No person can be outlawed without sufficient notice of the process of the court, and without satisfactory proof of his contumacy. It is therefore required, in the first place, that in all civil cases, and in all indictments for misdemeanors, and probably also for felonies not capital, three consecutive writs of capias, each issuing upon the return of the former one, should be di rected to the sheriff of the county in which the proceeding is commenced. If upon all these writs the return is non est inventus, a writ of exige,t or erigi facial is sued out, which requires the sheriff to cause the defendant to be called or exacted in five successive county courts, or in five successive hustings, if in London ; and if he renders himself, to take him. But if he does not appear at the fifth county court or husting, judg ment of outlawry is forthwith pronounced against him by the coroners, who are the judges for this purpose in the county court, and by the recorder if the proceed ings are in London (Co. Litt., 288 b; Dyer, 223 a, 317 a) ; and the fact of such judgment having been given is returned by the sheriff upon the exigent. Upon this return a writ of capias utlegatum may be issued into any county to arrest the defendant, and other process follows against his property. As an additional security that a man shall not be out lawed without notice of the process to which he is required to appear, the several statutes provide that a writ of proclamation shall issue at the same time with the exigent into the county where the defendant dwells, commanding the sheriff to make three proclamations of him in notorious places in the county a month before the outlawry shall take place.
The only difference between the pro ceedings in outlawry upon an indictment of treason or capital felony and those upon civil actions and prosecutions for inferior crimes, is that one capias is in the former case sufficient before the award of the exigent.
An outlawry may be reversed by writ of error, in which the party may avail himself of errors either of law or fact ; and the slightest mistake in any part of the proceedings will avoid the outlawry. It was formerly necessary to procure a pardon from the crown, by which the outlaw was restored to his law, and be came to all intents and purposes " inla gams." In modern times it is the usual course for the courts to reverse out lawries upon motion, without obliging the parties to sue out writs of error or procure pardons.