Presented by: Scott G.
Mahalick
Written
By Inspector Charles A. Donelan, Federal Bureau of Investigation
(Taken from the FBI Law Enforcement Bulletin, December, 1972, and
January, 1973)
Reprinted with permission
An odd byway of arrest law which arouses the curiosity of the
professional law enforcement officer is the right of a bondsman to
arrest a person who has been admitted to bail pending trial. The
reason it stirs his interest is plain for in the words of the
Supreme Court of the United States:
"No right is held more sacred, or is more carefully guarded, by
the common law, than the right of every individual to the
possession and control of his own person, free from all
restraint or interference, unless by clear and unquestioned
authority of law."
i
To find the origin and nature of the bondsman's right to arrest
under authority of law, we must go back, as in so many other aspects
of arrest law, the Common Law of England.ii
Purpose of Bail
The principle of bail is basic to our system of justice and it's
practice, as old as English law itself. When the administration of
criminal justice was in it's infancy, arrest for serious crime meant
imprisonment without preliminary hearing and long periods of time
could occur between apprehension and the arrival of the King's
Justices to hold court. It was therefore a matter of utmost
importance to a person under arrest to be able to obtain a
provisional release from custody until his case was called. This was
also the desideratum of the of the medieval sheriff, the local
representative of the Crown in criminal matters, who wore many hats
including that of bailing officer. He preferred the conditional
release of persons under arrest to their imprisonment for several
reasons. For example, it was less costly and troublesome; the jails
were easy to breach and under then existing law the jailer was
hanged if a prisoner escaped;
iii
the jails were dangerous to health and, as there was no provision
for adequate food, many prisoners perished before the trial was
held. iv Influenced by
factors such as these, the sheriff was inclined to discharge himself
of the responsibility for persons awaiting trial by handing them
into the personal custody of their friends and relative. Indeed, in
its strict sense, the word bail is used to describe the person who
agrees to act as surety for the accused on his release from jail and
becomes responsible for his later appearance in court at the time
designated. v As surety, the
bail was liable under the law for any default in the accused's
appearance.
Between the 13th and 15th centuries the sheriff's power to admit to
bail was gradually vested, by a series of statutes, in the justices
of the peace. In the case of a person committed for a felony, the
justices of the peace had authority to require, if they thought fit,
his remaining in jail until the trial took place, but, on the other
hand, a person committed for trial in a misdemeanor case could, at
common law, insist on being released on bail is he found sufficient
sureties. vi Writing in the
mid-1700's, Blackstone described the arrest-bail procedure of his
day in the following passage;
"When a delinquent is arrested... he ought regularly to be
called before a justice of the peace...If upon...inquiry it
manifestly appears that either be committed to prison or give
bail; that is, put in securities for his appearance to answer
the charge against him. This commitment, therefore, being only
for safe custody, wherever bail will answer the same intention
it ought to be taken...(Bail is...a delivery or bailment of a
person to his sureties, upon their giving (together with
himself) sufficient security for his appearance; he being
supposed to continue in their friendly custody, instead of going
to goal."
vii
The notion of bail pending trial has not changed over the centuries.
For instance, Mr. Justice Robert I. Jackson of the Supreme Court in
discussing its purpose said:
"The practice of admission to bail, as it evolved in
Anglo-American law, is not a device for keeping persons in jail
upon mere accusation until it is found convenient to give them a
trial. On the contrary, the spirit of the procedure is to enable
them to stay out of jail until a trial has found them guilty.
Without this conditional privilege, even those wrongfully
accused are punished by a period of imprisonment while awaiting
trial and are handicapped in consulting counsel, searching for
evidence and witnesses, and preparing a defense... Admission to
bail always involves a risk that the accused will take flight.
That is a calculated risk which the law takes as the price of
our system of justice."
viii
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