12 November 2007


Hmmm . . . You can't be an outlaw any more in Virginia:
§ 19.2-10. Outlawry abolished.

No proceeding of outlawry shall hereafter be instituted or prosecuted.
So, the first thing that runs thru my head is that this could prove problematic to prosecuting people who have acted outside the law. Things like this must be checked out.

The first step is a quick run to my trusty old three volume Webster:
Outlawry - 1a: the act of outlawing:the act or process of putting someone outside the protection of the law. b: banishment, exile. c: the act or process of making something illegal. 2: the state of living outside the law.
Aha! It seems that while it is possible that outlawry is the act of outlawing an act, the more likely and dominate use of the word is to be put, and live, outside the protection of the law. But wait, that can't possibly be allowed under the federal constitution, can it?

Well, a computer search of federal supreme court cases doesn't yield much. However, Green v. United States, 1958, 356 U.S. 165 is somewhat helpful. For one thing, it tells us that outlawry came from Ye Olde English law and was adopted by the Several States, but not the federal government. For another it gives a quick description of how it worked:
[A]t early English law, courts dealt with absconding defendants not by way of contempt, but under the ancient doctrine of outlawry, a practice whereby the defendant was summoned by proclamation to five successive county courts and, for failure to appear, was declared forfeited of all his goods and chattels. 4 Blackstone Commentaries 283, 319.
OK, way back when, if you were a 98 lb. weakling, the authorities summoned you to court for trial by combat against Mongo, the 6'8" man-giant (don't shoot him with that crossbow, you'll just make him mad), and you make the prudent decision not to participate you lost your land. Let's see what that evolved into under Virginia law.

Pulling out my trusty 1873 Code of Virginia, I find this:
When judgement of outlawry entered, or corrected, &c.; what judgment in outlawry to be rendered.

27. Judgment of outlawry shall be rendered by the court of the county or corporation in which the prosecution is, and may be reviewed, corrected or reversed, on motion, or by writ of errorcoram nobis.

28. When a person is outlawed, the same judgment, execution and disabilities shall ensue and be awarded as if he were convicted of the offence with which he was charged.
That doesn't say anything about failing to appear in court. However, the sections around it are mostly instructions on what to do when criminally charged parties fail to appear in court, so I infer that it is, as the federal supreme court stated, a statute dealing with someone who didn't come to court.

It's interesting that there seems to be a very serious concern with the possibility of error expressed under Code sec. 27 and that, under Code sec. 28, the remedy seems to have changed from the English version in which lands are grabbed to a conviction of outlawry carrying the same punishment as the crime a person couldn't be convicted of because he didn't come to court.

Basically, it's a failure to appear statute. Don't show up for court to face your bank robbery charge and we can't convict you of bank robbery. We can, however, make a judgment of outlawry and sentence you to 20 years on that instead. We still have a failure to appear statute, Va. Code sec. 19.2-128, but you can only get 5 years under it and must be present when tried - not quite as convenient as outlawry appears to have been.

I wonder why judgments of outlawry were done away with. I see a federal constitutional issue, or two, with that kind of action, but the statute was done away with before the federalsupremes started enforcing the federal constitution against the States.

Anyone out there got any insights? How about knowledge about how this has been handled in other States?

1 comment:

Anonymous said...

That's interesting. The Texas Code of Crim Procedure addressed it. I believe in the Texas context it's Webster's 1a definition. Here's the statute:

Art. 1.18. [15] [13] OUTLAWRY AND TRANSPORTATION. No citizen shall be outlawed, nor shall any person be transported out of the State for any offense committed within the same.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, eff. Jan. 1, 1966.