Definition
A writ of English common law origin directed to the sheriff, commanding the arrest and custody of a person who has been outlawed in a civil or criminal action. Upon arrest, the sheriff was required to hold the person until the return day and then present him before the court to answer for his contempt of the legal process that produced the outlawry. The name translates literally as "that you take the outlaw."
The writ functioned as a mechanism of enforcement: once a defendant had been formally outlawed — typically by failing to appear in response to successive writs — the capias utlagatum provided the court's means of compelling his physical submission to judicial authority.
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Common Confusion
The capias utlagatum is one of several writs in the capias family, each serving a distinct purpose. The basic capias directed arrest of a defendant to answer a suit; the capias ad satisfaciendum (ca. sa.) directed arrest to compel satisfaction of a judgment; the capias pro fine directed arrest for nonpayment of a fine. The capias utlagatum is distinguished by its trigger: it arose not from a pending suit or unsatisfied judgment in the ordinary sense, but specifically from the condition of outlawry — a separate legal status imposed on a person who had evaded process entirely. Researchers encountering any capias writ in historical records should confirm which variant is at issue before drawing conclusions about the procedural posture of the case.
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Why It Matters in Research
This is a term of almost exclusively historical significance. Researchers will encounter it in English common law records, plea rolls, and early American colonial and state court materials that borrowed from English practice, but it has no operative legal role in modern American or English law.
Several navigational points matter:
First, the writ's relevance was already contracting before most American legal sources were written. Rapalje & Lawrence note that outlawry was abolished in civil cases, which eliminated the capias utlagatum's primary field of operation. By the time American legal dictionaries were being compiled in the nineteenth century, the writ survived, if at all, only in criminal contexts. Researchers reading nineteenth-century American treatises that discuss this writ should treat those discussions as backward-looking, not as descriptions of live practice.
Second, outlawry itself is the predicate concept. The capias utlagatum cannot be understood without understanding what outlawry meant procedurally — the sequence of failed process, the exigent writs demanding the defendant's appearance, and the formal declaration of outlawry that followed noncompliance. The capias utlagatum was the arrest mechanism that followed that declaration. Researchers tracing a case through English plea rolls or early American records who encounter this writ have strong evidence that a prior outlawry proceeding occurred and should look upstream in the record for that process.
Third, jurisdiction matters for American research. English common law transplants were uneven. Some early American states adopted the full English capias and outlawry system; others modified or rejected it by statute. The writ's appearance in early American records is not uniform across colonies and states and should not be assumed to track English practice exactly.
Fourth, the writ is occasionally misread in manuscript records due to abbreviation. "Cap. utlag." or "ca. utlag." in a margin or docket entry refers to this writ. Confusion with other capias abbreviations is a genuine archival hazard.
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Historical Dictionary Support
Black's Law Dictionary and Burrill's Law Dictionary are in close agreement and appear to draw from the same sources — both cite the Registrum Omnium Brevium (Reg. Orig.) and Blackstone's Commentaries (3 Bl. Comm. 284) as authority. Their definitions are functionally identical: the writ lies against a person outlawed in an action, directs the sheriff to take and hold him, and requires presentment to the court on the return day to answer for his contempt. Burrill adds a reference to Stephens and to the Common Pleas (Com. 569), providing slightly more bibliographic depth for researchers who wish to trace the writ's development through primary sources.
Rapalje & Lawrence's entry is more fragmentary — the source material provided appears to have been corrupted by a typesetting or compilation error, with the capias utlagatum entry bleeding into a separate entry on capital and stock. What survives confirms the writ's function as an arrest mechanism for outlaws and notes the abolition of outlawry in civil cases, an important evolutionary marker that neither Black's nor Burrill flags as prominently.
None of the three dictionaries discuss American statutory modifications or the writ's reception in American jurisdictions, which is a meaningful gap for researchers working in early American legal records. Blackstone's Commentaries, Book III, Chapter 19 (on process) remains the most useful single source for understanding the writ's English procedural context.
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Jurisdictional Note
The capias utlagatum was an English common law writ and its American reception was inconsistent. Some early American states continued English outlawry practice by common law adoption; others modified or abolished it by statute in the late eighteenth or early nineteenth century. Researchers should not assume that the English procedure described in Blackstone or the common law dictionaries governed any particular American jurisdiction without checking that state's early statutes and court rules.
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