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An outlaw, in its original and legal meaning, is a person declared as outside the protection of the law. In pre-modern societies, all legal protection was withdrawn from the criminal, so anyone was legally empowered to persecute or kill them. Outlawry was thus one of the harshest penalties in the legal system. In Germanic law, the death penalty is conspicuously absent, and outlawing is the most extreme punishment, presumably amounting to a death sentence in practice. The concept is known from Roman law, as the status of homo sacer, and persisted throughout the Middle Ages.
A secondary meaning of outlaw is a person systematically avoiding capture by evasion and violence. These meanings are related and overlapping but not necessarily identical. A fugitive who is declared outside protection of law in one jurisdiction but who receives asylum and lives openly and obedient to local laws in another jurisdiction is an outlaw in the first meaning but not the second (one example being William John Bankes). A fugitive who remains formally entitled to a form of trial if captured alive but avoids capture because of the high risk of conviction and severe punishment if tried is an outlaw in the second sense but not the first (Sándor Rózsa was tried and sentenced merely to a term of imprisonment when captured).
In the common law of England, a "writ of outlawry" made the pronouncement Caput lupinum ("Let 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 or other wild animal. Women were declared "waived" rather than outlawed, but it was effectively the same punishment.
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. It was later also applied by many other officials, such as the Roman Senate, Roman magistrate, and Julius Caesar as a Roman general and provincial Roman governor during the Gallic Wars.Caesar, Julius. De Bello Gallico, book VI, section XLIV. It fell out of use during the Principate.
An outlaw might be killed with impunity, and it was not only lawful but meritorious to kill a thief fleeing from justice—to do so was not murder. A man who slew a thief was expected to declare the fact without delay; otherwise, the dead man's kindred might Compurgation and require the slayer to pay weregild as for a true man.
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. Archbold Criminal Pleading, Evidence and Practice (30th ed., 1938) p. 71
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. It was obsolete when the offence was abolished in 1938. Archbold (30th ed., 1938) p. 71 Archbold (31st ed., 1943) p. 98Administration of Justice (Miscellaneous Provisions) Act 1938, section 12 Outlawry was, however, a living practice as of 1855: in 1841, William John Bankes, who had previously been an MP for several different constituencies between 1810 and 1835, was outlawed by due process of law for absenting himself from trial for homosexuality and died in 1855 in Venice as an outlaw.
In the civil context, outlawry became obsolete in civil procedure by reforms that no longer required summoned to appear and plead. Still, the possibility of being declared an outlaw for derelictions of civil duty continued to exist in English law until the passing of the Civil Procedure Acts Repeal Act 1879 (42 & 43 Vict. c. 59) in 1879 and in Scots law until the late 1940s. Since then, failure to find the defendant and serve process is usually interpreted in favour of the plaintiff, and harsh penalties for mere nonappearance (merely presumed flight to escape justice) no longer apply.
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.Schmidt–Wiegand, Ruth (1998). "Vogelfrei". Handwörterbuch der Deutschen Rechtsgeschichte Dictionary. 5: Straftheorie Penal. Berlin: Schmidt. pp. 930–32. In Germany and Slavic countries during the 15th to 19th centuries, groups of outlaws were composed of former prisoners, soldiers, etc. Hence, they became an important social phenomenon. They lived off of robbery, and local inhabitants from lower classes often supported their activity. The best known are Juraj Jánošík and Jakub Surovec in Slovakia, Oleksa Dovbush in Ukraine, Rózsa Sándor in Hungary, Schinderhannes and Hans Kohlhase in Germany.
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. The Felons Apprehension Act (1865 No 2a) of New South Wales provided that a judge could, upon proof of sufficiently notorious conduct, issue a special bench warrant requiring a person to submit themselves to police custody before a given date, or be declared an outlaw. An outlawed person could be apprehended "alive or dead" by any of the Queen's subjects, "whether a constable or not", and without "being accountable for using of any deadly weapon in aid of such apprehension." Similar provisions were passed in Victoria and Queensland. Although the provisions of the New South Wales Felons Apprehension Act were not exercised after the end of the bushranging era, they remained on the statute book until 1976.
In modern times, the government of the First Spanish Republic, unable to reduce the Cantonal rebellion centered in Cartagena, Spain, declared the Cartagena fleet to be "piracy", which allowed any nation to prey on it. Taking the opposite road, some outlaws became political leaders, such as Ethiopian Empire's Kassa Hailu who became Emperor Tewodros II of Ethiopia. Rubenson, King of Kings, pp. 36–39 The nobleman Prince William of Orange was declared an outlaw, an enemy of the state and Christendom itself for his involvement in the Dutch revolt and ensuing Eighty Years' War. This led to his death at the hands of Balthasar Gérard, who was promised a Amnesty, 25.000 golden crowns and ascension into the nobility, but was caught and hanged, drawn and quartered for the offence of high treason instead by the court at Delft.
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