Definition
Acting in a manner that violates positive law or legal right. In criminal law, "unlawfully" is a term of pleading as much as a term of substance — it signals that the act alleged was done in violation of a specific legal prohibition, as distinguished from conduct that might be wrongful in a moral or general sense but not legally prohibited.
The word carries two overlapping functions:
1. PLEADING FUNCTION: In indictments and criminal informations, "unlawfully" is the formal marker that the act charged transgressed a legal rule. Its inclusion (or omission) can affect the sufficiency of the charging instrument, particularly for statutory crimes.
2. SUBSTANTIVE FUNCTION: As a modifier within the definition of an offense, "unlawfully" distinguishes criminal from lawful versions of the same act — for example, distinguishing an unlawful killing from a lawful one, or unlawful detention from lawful arrest.
Common Language
Modern common usage (Wiktionary): "In a manner not conforming to the law."
Historical common usage (Webster's 1913): Not meaningfully distinct from the modern common usage; the word carried the same general sense of acting contrary to law.
Editorial note: The gap between common and legal meaning here is not about definition but about function. Ordinary speakers use "unlawfully" simply as a synonym for "illegally." In legal drafting and criminal pleading, however, the word is a term of art with specific consequences for the sufficiency of an indictment — consequences that turn on whether the underlying offense was a common law crime or a statutory creation. That functional dimension is invisible in everyday usage.
Common Confusion
"Unlawfully" is sometimes treated as interchangeable with "illegally," "wrongfully," "criminally," or "feloniously" in charging instruments, but these words are not equivalent. "Feloniously" signals the grade of the offense; "wrongfully" implies a moral departure that may or may not coincide with legal violation; "criminally" is a conclusion of law. "Unlawfully" specifically connects the act to a prohibition in positive law. Substituting one for another in a charging document can be consequential, particularly in jurisdictions that scrutinize indictment language closely.
Why It Matters in Research
The critical research insight is that the necessity of the word "unlawfully" in a charging document depends on whether the offense was recognized at common law or created by statute — and this distinction shifted the word's importance dramatically across periods of legal history.
For statutory crimes, especially those unknown to the common law, courts historically required the indictment to use the word "unlawfully" (or equivalent statutory language) to put the defendant on notice that the charge rested on a positive enactment rather than common law principles. If the statute itself used "unlawfully," omitting it from the indictment could be fatal to the charge. Researchers reading older indictments, writs, or criminal pleadings should be alert to whether the word appears and whether the underlying offense was statutory or common law — the answer tells you something about the drafting conventions and jurisdictional expectations of the period.
In modern practice, many jurisdictions have relaxed strict pleading requirements through procedural rules, making the presence or absence of "unlawfully" less dispositive. Researchers comparing historical charging instruments to modern equivalents should not assume that modern permissiveness about pleading language applied in earlier periods.
The word also appears frequently as a statutory element — embedded in the definition of the offense itself rather than added by the pleader. When "unlawfully" is part of the statutory text, prosecutors must prove the act was unlawful as an element of the crime, not merely allege it as a formal marker. This distinction between "unlawfully" as pleading convention and "unlawfully" as a substantive element of proof is a recurring source of interpretive difficulty in older case law.
Researchers should also note that some early sources treat "unlawfully" and "wrongfully" as near-synonyms in civil pleading contexts, even though their functions diverged in criminal practice. Bouvier's citation pattern (New York and North Carolina reporters) suggests the word was being tested in appellate courts throughout the nineteenth century, and researchers working in state criminal records from that era should check whether local courts imposed requirements beyond the general common law baseline.
Historical Dictionary Support
Black's (1st and 2nd editions) are in precise agreement, word for word: both editions define the term primarily through its indictment function — marking an act as a violation of positive law — and both note its particular relevance when the statute uses the same phrase. Neither edition engages meaningfully with the civil use of the word or with its role as a substantive element of proof.
Bouvier adds the most texture, distinguishing explicitly between cases where the word is necessary (statutory crimes, or where the statute uses it) and cases where it is unnecessary (common law crimes that are manifestly illegal on their face). Bouvier also gestures toward civil usage by pairing it with "wrongfully." The Chitty and Moody citations embedded in Bouvier point to English criminal pleading practice, suggesting the American rule tracked English authority closely on this point.
What the historical dictionaries collectively miss: they treat "unlawfully" almost entirely as a pleading formality and say little about the word's substantive role as a definitional element when it appears within the offense itself. They also do not address how procedural reform movements in the late nineteenth and early twentieth centuries gradually eroded the strict necessity of the term in many American jurisdictions.
Jurisdictional Note
The requirement that "unlawfully" appear in an indictment for statutory crimes was stronger and more consistently enforced in American jurisdictions following strict common law pleading traditions. Federal practice and many reformed state codes progressively relaxed this requirement, so researchers should treat older state court decisions on indictment sufficiency as jurisdiction-specific and period-specific rather than as universal authority.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Criminal Pleading; Statutory Offenses; Elements of a Crime