Making bail
The origins of bail
This is the second installment in a series on bail in the criminal justice system. The first installment was an introduction, which you can read here.
IN THE introductory installment in this series, I noted that bail has deep evolutionary and historical roots. From the beginning, humans have been in a struggle between order and chaos. We have had to contend not only with the chaos of the world, but with the chaos caused by our fellow man. Humans have been committing offenses against order and against one another, forever. This fact creates a problem that must be solved if a given society is to flourish.
In early societies, offensive behavior was constrained by evolved human tendencies toward punishment reinforced by culture and tradition. I have written previously about mechanisms that have evolved within humans and their societies to do this. The three primary mechanisms are the guilty conscience, retaliation by victims, and third-party punishment. You can read about the development of those practices here.
Third-party punishment is the most effective and formalized of these mechanisms. It is a system whereby a member or members of a group, other than the victim, punish a wrongdoer on behalf of the victim or the group. In early third-party punishment practices, the third-party was often family members of the victim. This is sometimes referred to as blood feud. While blood feuds could be effective at securing justice for the victim and his family, they tended to devolve into intertribal conflict or all-out war. Because of this, third-party punishment systems continued to evolve. Ultimately, the concept of tribunals arose for resolving disputes. This elevated third-party punishment from kin networks to more formal bodies representing the collective. These early tribunals formed the basis of our modern criminal justice systems.
With the development of early tribunals came a taxonomy of offenses, though until more modern times a loosely defined one. For some offenses, such as “persons who were considered to be a danger to society, false accusers, persons of evil repute, habitual criminals, along with persons caught in the act of a crime or the process of escaping,” offenders were never released from incarceration pending “trial.” Instead, they were either mutilated or summarily executed, as noted by Timothy Schnake in The History of Bail and Pretrial Release. Accused offenders not immediately killed or maimed were generally left free until “trial.” Typically, this meant resolution by the ruler or king.
For those categories of offenses where the offender was not immediately drawn and quartered or met some other horrific end, the most likely “punishment” was to pay a “fee” to the victim or his family. These “fees” went by various names depending on where you were, but a common name for many centuries in many places was wergild. A wergild was a monetary value established for a person's life, to be paid as a fine or as compensatory damages if that person was killed or injured by another. The king would enforce payment of the wergild to the person or his surviving family.
The wergild or fee system continued for certain offenses, even as tribunals became more formalized. Our modern system is based heavily on the model developed in ancient Rome. Roman authorities, like earlier societies, still used creative methods of capital punishment for many offenses. However, Roman citizens who believed themselves to be crime victims had recourse outside of the capital and corporal punishment imposed by the state. Citizens could bring their case to a Praetor, a Roman official, who would appoint a Judex, what we call a judge, to oversee a dispute where wergild was the remedy.
Later, the Anglo-Saxon legal system modeled Roman practices. Regarding offenses where the payment of wergild might be the punishment, it was impractical to hold offenders in incarceration. It sometimes took a very long time for a magistrate to arrive to conduct the trial, and jail facilities were sparse. However, the Anglo-Saxons were concerned about offenders fleeing responsibility when released. To remedy this, a rudimentary “bond” system developed where the offender would be released from imprisonment if he or someone on his behalf put up a surety equal to the potential wergild. As noted by John-Michael Seibler and Jason Snead in their paper, The History of Cash Bail, for the Heritage Foundation, “This early system of bail killed two birds with one stone: it simultaneously provided strong incentives to sureties to ensure their charges appeared in court, and guaranteed payment to the victims if they fled.”
In these wergild cases, the practice of putting up a surety equal to the wergild would become what we recognize today as a bail bond.
No matter the category of case, though, the primary emphasis of these early justice systems was on maintaining order. This emphasis was present both in the capital or corporal punishment category of offenses, and in those cases where wergild would be the remedy. The wergild payment, as an early “bail bond” practice, had the specific goal of ensuring that wrongful acts were punished, and victims were compensated.
For early humans to function collectively, systems had to evolve to deal with wrongdoers. It was necessary to discourage wrongdoing, and to make sure victims experienced justice so that the tribe did not devolve into internecine conflict. This emphasis on punishment and justice for the victim persisted from the earliest systems through the Medieval age. During that time, marked by the adoption of the Magna Carta in 1215, formally recognized individual rights began to balance out the existing criminal punishment systems. The next installment in this series will discuss the rise of individual rights in the Middle Ages, and how the recognition of those rights impacted bail practices in the Anglo-Saxon and early American justice systems. We will find that even with the rise of individual rights, bail practices remained oriented toward order.