Outlawry, the process by which one is excluded from the protection of the law, partly in respect to his property, and partly in respect to his person. The outlaw, says Brac-ton, forfeits home and country, and becomes an exile. Anciently he was known by another name, to wit, frendlesman, as it seems, because he forfeited his friends; for if any of them rendered him any assistance, they suffered the same punishment as the outlaw himself, losing like him both their goods and their life, unless the king of his grace spared them. From the time one was outlawed he was said anciently to bear a wolf's head (caput hipinum gerere), and it is usually stated, as if on the authority of Bracton, that an outlaw might be killed with the same impunity as a wolf; but that author says plainly that one might take the outlaw's life only when he resisted being taken, or endeavored to escape. After his capture, his death or life rested in the hands of the king alone. All males above the age of 12 years might suffer outlawry, because at that age they were all sworn and enrolled in the decennary, and were thus within the law of the realm. Women were "waived," not outlawed, because they were not thus sworn.
They therefore could not be excluded from the benefit of the law, but were abandoned or disregarded by it. - Outlawry was pronounced originally only in cases of treason or felony, when the defendant refused to obey a summons. Next it was extended to trespasses of a flagrant character. But properly it was limited to those processes in which a capias lay, that is, a writ or warrant to take the person of the defendant. In all actions of trespass vi et armis this capias lay at common law, and consequently also, in proper cases, outlawry. In actions of debt, detinue, covenant, and such others as are founded upon mere negligence or laches, capias did not lie at common law, and therefore outlawry was impossible until it was introduced by act of parliament. A distinction was made, in respect to the consequences of outlawry, between criminal and civil cases. In the former, sentence of outlawry operated as a conviction of the offence itself with which the accused was charged. In treasons and felonies therefore he suffered corruption of blood, and forfeiture of all his estate, real as well as personal. In civil cases the ultimate object of the outlawry was to secure access to the defendant's property.
His failure to appear was, accordingly, not accounted a confession of the matter charged; but as a contempt, it deserved and drew after it a forfeiture of personal property and loss of the profits of lands so long as the outlawry lasted. An outlaw will not be heard in the courts where he seeks to originate a legal right, and his adversary may plead the outlaw's disability in bar or in abatement of his suit. Indeed, he cannot appear in court for any other purpose than to reverse his outlawry. He cannot be a juror, for he is not an unimpeached citizen, liber et legalis homo; but if he was outlawed in a civil action, he may be an heir or a witness. The judgment of outlawry may be reversed by writ of error or set aside on motion in the court where it is entered. In some of the United States the process of outlawry has never been known; in others it has been expressly abolished; and it now has no actual existence in any.