Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
Publisher/Edition
New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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OUTLAWRY

III.21.1

OUTLAWRY. The declaring one by superior authority outside of the protection of all law, was a proceeding not unknown to the Greeks and Romans, but was inflicted by them when offenses had been committed against the national religion, and was more in the nature of ecclesiastical excommunications and interdicts such as are found in some Christian countries.

III.21.2

—At common law process of outlawry originally lay only in cases of treason, but was at later periods extended to minor offenses and even to civil actions. The consequences, however, of a judgment in outlawry, and the legal steps to obtain it, were very different in the last mentioned cases.

III.21.3

—In Bacon's Abridgment outlawry is defined as a punishment inflicted on a person for contempt and contumacy, in refusing to be amenable to and abide by the justice of that court which has lawful authority to call him before it. And as this is a crime of the highest nature, being an act of rebellion against the state or community of which he is a member, so does it subject the party to divers forfeitures and disabilities, for hereby he loses liberam legem, is out of the king's protection. It is further said in the same place, that in outlawry in treason and felony the law interprets the party's absence as a sufficient evidence of his guilt, and, without requiring further proof, accounts him guilty of the fact, on which ensues corruption of blood and forfeiture of his whole estate, real and personal, which he holds in his own right.

III.21.4

—One of the most memorable proceedings in outlawry was directed against the well-known agitator and member of parliament, Wilkes Booth, in consequence of his withdrawing to France, while an information for libel was pending against him (1770). On technical grounds (Lord Mansfield presiding) the proceeding was quashed. The process of outlawry was so beset with technical difficulties that it could hardly ever be successfully maintained. In the United States it never was generally recognized either in criminal or civil cases. This process of outlawry, as found in the common law, as applicable to minor offenses and even to civil cases, if it ever prevailed on the continent of Europe, was soon superseded by process and judgment in contumaciam, taken from the Roman and canon law even in criminal cases. Parties sued or indicted may, under that process, be summoned by publication and be condemned in their absence, but not without evidence being heard, which condemnation, however, upon appearance within certain prescribed periods, may be set aside on terms.

III.21.5

—Outlawry in the English sense was there confined to high and capital crimes, and was frequently applied by the secret courts, held by certain tribunals in some parts of Germany, under imperial sanction (Vehm Gerichte) in the middle ages. Those convicted, when within the power of the tribunal, were at once executed by the subordinate officials, and those who escaped were outlawed, and liable to be executed wherever found by officers or members of the brotherhood. In Rome and Greece everybody could kill an outlaw, and it is a somewhat disputed point whether at earlier times this was not also allowable at common law before it was expressly prohibited by statute. In the holy German empire outlawry, called Reichs-Acht (Bann), played a great part, but it was more of a political than strictly legal process. It was adopted in cases of felony, committed by the great vassals against the emperor, their liege lord; also in cases of great crimes and misdemeanors not strictly breaches of fealty. The imperial great bann had to proceed from the diet; the lower bann could be pronounced by local courts, and had but a local application. Upon complaint, sustained by the estates of the empire assembled in diet, the accused was summoned, usually three times, and upon default conviction followed and declaration of outlawry. With the great vassals the decrees could only be enforced by a real war. The outlawry of Henry the Lion (the head of the Guelph faction), duke of Saxony and Bavaria, was perhaps the most noted instance of this process. Having failed to heed the summons to answer the impeachment at three different sessions of the diet, outlawry (the Ober- or Aber-Acht) was pronounced against him at the diet held at Wurzburg (1180) by the emperor Frederick I. (Barbarossa, chief of the Ghibelins). It was a political act more than a legal one, as it also declared a forfeiture of his estates held as benefices, and not in his own right, which was not usual either at common law or at the German law. Henry took up arms, but being unsuccessful, fled to his father-in-law, the king of England. Later, amnestied, he was reinstated into Brunswick and Luneburg, his allodial possessions.

III.21.6

—The outlawry of the elector John Frederick of Saxony, and of Philip, landgrave of Hesse, the Protestant leaders in the reformation, was wholly irregular, being declared by a mere edict of the emperor Charles V., without sanction of the diet (Reichstag) 1547. Equally irregular had been the outlawry of Martin Luther, by a mere minority of the diet of Worms in 1521, when the session, by the departure of most of the members, had been virtually closed. Some of the most powerful princes of the empire at once protested against it, and the emperor never took steps to execute it. All formalities had been neglected. The only resolution that was legally passed against Luther was one binding the estates of the empire not to obstruct the papal bulls against Luther, which had only a clerical effect by excommunicating him. Other imperial outlawries sanctioned by the diet were those against the elector palatine Frederick, king of Bohemia, and his allies, in 1619, and against the electoral princes of Bavaria and Cologne in the war of the Spanish succession, on account of their alliance with France in 1702. An attempt to outlaw Frederick the Great of Prussia, at the commencement of the seven years war (1758) failed in its initial steps. Purely political acts, without any legal proceedings, were the outlawry of the Baron de Stein, ex-minister of Prussia, by Napoleon I., in 1809, and that of Napoleon himself by the princes assembled at the Vienna congress in 1815, as also that of Gen. B. F. Butler by the confederate states.

GUSTAVE KOERNER.

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