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.