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What is the origin and basis in the law for the bondsman's right to arrest a person admitted to bail pending trial - in Mr. Justice Holmes' phrase this "trace of the old relation" between accused and surety which still remains? It is bottomed on the common law principle that the accused is transferred to the friendly custody of his sureties and is at liberty only by their permission.
At the time of the Norman Conquest of England, the sureties for the accused were compared to his jailers and were said to be "the Duke's living person". This relationship between them has been described in the cases since those days in picturesque language. For example, it has been said: "The principal is, in the theory of the law, committed to the custody of the sureties as to jailers of his own choosing." The bail have their principal on a string, and may pull the string whenever they may please. "Thus, in legal contemplation, when the accused is released on bail, his body is deemed to be delivered to his sureties. The contract of bail "like debt as dealt with by the Roman Law of the Twelve Tables...Looked to the boy of the contracting party as the ultimate satisfaction."
In early times, bail implied a stringent degree of custodial responsibility and the sanction of the law for any failure on the part of the sureties was harsh. When the accused was released on bail he and his sureties were said to be bound "body for body." As late as the 14th century an English judge, after noting that bail were the accused's keepers, declared that it had been maintained that the accused escaped, the bail would be hanged in his place. But, on the other hand, it seems that during the previous century sureties who failed to produce their man in court got off with a fine, all their chattels theoretically being at the King's mercy. In a modern case the responsibility of the sureties has been described as follows: "If the defendant had been placed in the jail, he could at any time on the call of the case have been brought into court for trial. The bondsmen are as the four walls of the jail, and in order to fully discharged their obligations they are obliged to secure their principal's presence and put him as much in the power of the court as if he were in the custody of the proper officer. As to the modern sanction of the law, of course, if the accused flees and fails to appear in court at the required time, the bail bond is forfeited and the surety is absolutely liable to the government as a debtor for the full amount of the penalty.
With such a stern responsibility of safe keeping to insure the that the accused answered the call of the court, it followed in reason that the law would afford the means to carry it out, as the practical common law did, by recognizing a right of arrest in the bondsman. Although the right arises from the theory of the sureties custody - i.e., the principal is "so far placed in their power that they may at any time arrest him upon the recognizance and surrender him to court" for exoneration - it also bears a resemblance to the right of arrest which existed under the medieval frank-pledge system of law enforcement. That system designed to keep the King's Peace, was one of mutual surety-ship with each man responsible for the good conduct of the other nine members of his tithing, and with each having the duty to aid in the capturing of fugitives from justice. The resemblance is close, for up to the early decades of the 13th century prisoners were often handed over to a tithing, and sometimes a whole township was made responsible for their appearance before the court.
The scope of the bondsman's right to arrest the accused, based on the metaphysical link that binds them, was viewed by the Supreme Court of the United States in the course of its opinion in the interesting case of Taylor vs. Taintor. In this case, which will be discussed below, the court said:
When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge, and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the re-arrest, by the sheriff, of an escaping prisoner." (Emphasis Added.)
As to the above mentioned right of a surety to arrest by means of an agent, it has been held that the surety, in the absence of statutory limitations, may deputize others of suitable age and discretion to take the prisoner into custody, but the latter authority may not be delegated. Where a statute provides the manner in which the power of arrest may be delegated by the bail bondsman, that provision must be followed or the arrest is invalid. In some jurisdictions, a statute provides for an arrest by the sheriff on a direction of the bail endorsed on a certified copy of the recognizance. Where the surety on a bail bond procures the re-arrest of his principal by a sheriff, or other peace officer, it is the general rule that the officer is empowered to make the arrest as an agent of the surety and not as an officer "per se." Where a statute prescribes the formalities to be followed before an arrest may be made by a peace officer as agent of a surety, compliance with the statute is necessary for a lawful arrest.
As to the above mentioned right of a surety to pursue his principal into another State, it has been held that, just as the surety can arrest the and surrender the principal without resort to legal process when the latter remains within the jurisdiction, he can pursue him into another State to arrest him, detain him, and return him to the State whence he fled and where the bail bond was executed, and his presence is required. A surety has the right at any time to discharge himself from liability by surrendering the principal before the bail bond is forfeited and can arrest him for that purpose. His right to seize and surrender the principal is an original right, not a right derived through the State, which arises from the undertaking in the bail bond and the relationship between the principal and bail. It is a private right and not a matter of criminal procedure, jurisdiction does not enter into the question; and there is no obstacle to its exercise wherever the surety finds the principal. The sureties right in such a case differs from that of a State which desires to reclaim a fugitive from its justice in another jurisdiction. In default of a voluntary return, the State can remove a defendant from another State only by the process of extradition and must proceed by way of extradition which can only be exercised by a government.
The case of Taylor vs. Taintor, noted above, which was decided by the Court in 1873, dealt with the problems raised by the interstate travel of the principal on a bail bond and the liabilities on the surety agent in that regard. The holding of the court was that where a principal was allowed by his bail to go into another State, and while there, was delivered upon a requisition from a third State upon a criminal charge committed in that State, such proceedings did not exonerate the bail.
The case arose in the following manner: A man named McGuire was charged, by information, with the crime of grand larceny in Connecticut and arrested upon a bench warrant. The court fixed the amount of bail to be given at $8,000. McGuire was released from custody on a bail bond in that sum, with two sureties, conditioned that he appear before the court on a set day the following month. After his release on bond, McGuire went to New York where he lived. While he was there however, he was seized by New York officers upon the strength of a requisition made upon the Governor of New York by the Governor of Maine charging McGuire with a burglary, alleged to have been committed by him in the latter State before the Connecticut bail bond was taken. Subsequently, McGuire was delivered to Maine officers who removed him against his will to that State where he was later tried and convicted on the burglary charge.
When, due to the New York arrest and removal, McGuire failed to appear before the Connecticut court on the appointed day, his bail bond was forfeited. Neither of his sureties knew when they entered on the bond that there was any criminal charge against McGuire other than the Connecticut grand larceny. The treasurer of the State of Connecticut successfully sued to recover the amount of the bail bond and the State high court, and ultimately the Supreme Court of the United States, affirmed the judgment.
In reaching this conclusion, the Court declared at the outset that according to settled law the sureties will be exonerated when the performance of the condition of a bail bond is rendered impossible by the act of God, The act of the obliges (The State), or the act of the law. On the other hand, it is equally settled that if the impossibility is created by the sureties, the right of the State are in no way affected.
As to exoneration by "the act of the law" the Court explained, the sureties will be exonerated if the principal is arrested in the state where the obligation is given and is sent out of that State by the Governor upon the requisition of the Governor of another State. In so doing, the Governor represents the sovereignty of the State; the State can no longer require the principal's appearance before the court, and the obligation it has taken to secure his appearance loses its binding effect. But if the principal is imprisoned in another State for the violation of the law of a criminal law of that State, the principal and his sureties will not be protected. The law which renders the performance impossible, and therefore excuses failure, must be a law operative in the State where the obligation was assumed and which is obligatory in its effect upon her authorities. The Court stated that where a demand is properly made by the Governor of one state upon the Governor of another, the duty to surrender a fugitive is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter State have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied. The Court noted that bail may doubtless permit the principal to go beyond the limits of the State within which he is to answer. But it is unwise and imprudent to do so because if evil ensues, the bail must bear the burden of the consequences and cannot case them upon the state.
After laying out the foregoing principles, the Court declared that the
If McGuire had remained in Connecticut, he would probably not have been delivered over to the Maine authorities, and would not have been disabled to fulfill the condition of his obligation. If the demand had been made upon the Governor of Connecticut, he might properly have declined to comply until the criminal justice of his own State had been satisfied. It is not to be doubted that he would have exercised this right, but had he failed to do so, the obligation of the bail bond would have been released. But here, the sureties were at fault for McGuire's departure from Connecticut, and they must take the consequences. Indeed, their fault reached further for, having permitted McGuire to go to New York, it was their duty to be aware of his arrest when it occurred, and to interpose their claim to his custody.
When McGuire was arrested in New York the original imprisonment under the Connecticut information was continued. The prosecution in Connecticut was still pending and its court's jurisdiction could not be suspended by any other tribunal. Though he was beyond the jurisdiction of Connecticut, McGuire was still, through his bail, in the hands of the law of that State and held to answer for the offense with which he was charged. Had the facts been made known to the Governor of New York by the sureties at the proper time, it is to be presumed that he would have ordered McGuire to be delivered to them and not to the authorities of Maine.
The act of the Governor of New York in making the surrender was not "the act of the law" within the legal meaning of those terms. In the view of the law, it was the act of McGuire himself. He violated the law of Maine, and thus put in motion the machinery provided to bring him within the reach of the punishment for his offense. But for this, such machinery, so far as he was concerned, would have remained dormant. McGuire cannot be allowed to avail himself of an impossibility of performance thus created. What will not avail him cannot avail his sureties. His contract is identical with theirs. They undertook for him what he undertook for himself.
The constitutional provision and the law of Congress, under which the arrest and delivery of McGuire to Maine were made, are obligatory upon every State and are a part of the law of every State. Every Governor, however, acts separately and independently for himself. In the event of refusal, the State making the demand must submit. There is no alternative. But in McGuire's case no impediment appeared to the Governor of New York, and he properly yielded obedience.; The Governor of Connecticut, if applied to, might have intervened and by a requisition have asserted the claim of Connecticut. It would have then been for the Governor of New York to decided between the conflicting demands.
The Court concluded by noting that the State of Connecticut was not in
any sense a party to what was done in New York and that if McGuire had
been held in custody in New York at the time fixed for his appearance
in Connecticut, it would not in any way affected the obligation of the