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 sureties
in this case were not entitled to be exonerated  because:

When the Connecticut bail bond was forfeited for the nonappearance of  McGuire, the action of the Governor of New York, pursuant to the requisition of  the Governor of Maine, had spent its force and had come to an end. McGuire was  then held in custody under the law of Maine to answer to a criminal charge  pending there against him, a fact which, as explained above, cannot avail the  sureties.

 

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 bail bond.