PRACTICAL TREATISE

ON

THE LAW OF BAIL

PART THE FIRST.

BAIL IN COMMON LAW ACTIONS.

CHAPTER I.

ON THE ORIGIN, PROGRESS, AND GENERAL NATURE OF THE LAW OF BAIL.

DURING the early periods of our Constitution, and whilst the feudal polity prevailed in its ancient integrity, little attention was directed to the improvement of the law of personal property. Arts, manufactures, and commerce were comparatively unknown. The majority of the people were feudatories, and the wealth of the more opulent members of the state, consisted of possessions less mutable and of a more permanent nature than mere personal chattels. Land, was the only species of wealth, that could be esteemed valuable in the opinion of a people, whose time, when not employed in military occupations, was devoted to the pursuits of agriculture. From these circumstances, civil injuries to personal property, were not only insignificant in number, but unimportant in their consequences, when contrasted with the progressive augmentation, which succeeded the abolition of the feudal tenures.

The gradual introduction and increase of trade, and the consequent accumulation of wealth, enriching and aggrandizing the industrious classes of the community, soon enlarged and strengthened general credit. Civil employments and occupations necessarily became more extended, and the relative situation of the people made it no longer indispensably requisite, to devote such a rigid attention to military avocations. It was not until an alteration so conducive to the general advancement of society had taken place, that attempts were made to correct the insufficiency of the existing laws, and to obviate the inconveniences attending their execution. By degrees, new remedies were introduced, through the medium of legislative and judicial interference.

To prevent inconvenience resulting to the lord from the coerced absence of his dependants, the person of a vassal, according to the feudal system, was not liable to be attached for civil injuries. This exemption, which had presented many obstacles against improvement in the law, was in effect removed by the first act of parliament, which authorized the arrest and detention of a person for injuries unaccompanied by violence.

By the common law, a defendant was not amenable to process against his person for civil injuries, unless in cases of aggressions committed with force or vi et armis ; in which case he was subject to a writ of capias ad respondendum.

At the period of which we are now writing, when any member of the community sustained an injury which demanded redress through the interposition of the superior courts of law, he sued out of the Court of Chancery an original writ, containing a concise statement of the wrong he had sustained, and commanding the sheriff of the county where the injury arose, or was supposed to have been committed, to require the person charged with

the offence, either to do justice to the complainant, or to appear in court and answer the accusation to be exhibited against him.

Of these original writs there were two, a Præcipe and a Si te fecerit securum: the former applicable to cases where something certain was demanded'; the latter where nothing specific was required, but a general satisfaction for some aggression, which a court of justice could not determine without the intervention of a jury. But before the sheriff was permitted to execute either of these writs, he was ordered to take security from the aggrieved party for the prosecution of his suit with effect. This salutary precaution was adopted, to guard and protect the accused from any injury that might result to him, from the institution of a groundless and untenable complaint. The security required to be given by the plaintiff for pursuing his claim with effect, were not merely nominal, but real and substantial pledges: persons capable of indemnifying the party from the mischievous consequences which might accrue, from the exhibition of a unfounded or malicious charge.

Upon a return, to either of these writs, that the defendant had been summoned by the sheriff, an attachment issued to compel a due acquiescence with the command in the original writ. This attachment and all other subsequent writs were called process, because they proceeded from the original or first institution of a complaint. They were witnessed in the name of the chief justice of the court of common law, founded on the non-appearance of the defendant, according to the object and exigency of the orignal writ.

But, in actions of trespass for injuries accompanied with force, the attachment was part of the orignal writ, and peremptorily commanded the person charged with

infringing the peace, to be attached without any prelimi nary summons or monition. In either case, if the accused did not answer, he not only forfeited the goods thus attached, but was compellable to appear, by distresses successively renewed, called a distringas infinite. The defendant, if he had any substance, was thus gradually deprived of it, till he acted in obedience with the king's writ; or, if he had no property, the law, considering him incapable of rendering satisfaction, looked upon all further process as nugatory; in which case, in actions for injuries without force, the process terminated.

A different practice however prevailed with regard to injuries conimitted vi et armis. Such aggressions required, in the state of society at that period, more prompt and speedy relief than mere breaches of contract: process by capias ad respondendum was provided against the person of the offender, if he omitted or neglected to appear to the writs of original and attachment, or had no effects which could be distrained. But as this unrestricted immunity of the defendant's person in matters of contract rather encouraged than intimidated indigent and fraudulent wrongdoers, a capias was at length provided, by which the defendant could be arrested for injuries as well of a pecuniary as of a forcible nature.

The earliest statute which gave this remedy for injuries unattended by a breach of the peace, was the statute of Marl. 23. in the 52 Hen. 3. (a) which enacted, "that if bailiffs, who ought to make account to their lords, do withdraw themselves, and have no lands or tenements, whereby they may be distrained, then their bodies shall be taken, so that the sheriff shall cause them to make

(a) This is the generally received opinion, but Mr. Reeve in his valuable History of the English Law, doubts the accuracy of this conjecture. See Vol. II. p. 439. Vol. I. p. 480.

their account." This act was circumscribed and confined in its operation, to the now almost obsolete action of account, and was not followed by any new regulation, till the 11 Edw. 1. c. 1. commonly called "the statute merchant;" which rendered the person of the debtor liable to arrest, if he had not sufficient goods and chattels to satisfy the claims against him. It was soon, however, ascertained that this enactment would prove abortive, and frustrate the object of its introduction, as it induced the debtor to conceal his personal chattels and live exclusively on his land. A statute was therefore passed in the thirteenth year of the reign of the same king, permitting execution to issue against the body, lands, and goods of persons indebted on bonds or other specialties, but whose effects nevertheless could not be sold, until three months had elapsed, from the time of suing out the execution; and if at the expiration of that period the creditors were not satisfied, they were authorized to detain him in prison and keep possession of his lands until their debts were liquidated. (b)

By the statute 25 Edw. 3. c. 17. a writ of capias was extended to actions of debt and detinue; and it was not until the expiration of one hundred and fifty years, after the extention of the right to arrest the person of the wrongdoer in trespass, account, debt, and detinue, that a corresponding privilege was given in actions on the case. This material alteration was effected by the 19 Hen. 7. c. 9. enacting "that like process be had hereafter in actions upon the case in any of the courts, as in actions of trespass or debt." Immediately after the introduction of this mode of procedure, the capias came into general use in all cases of private wrongs, without any attention

(b) See the Statute of Merchants, 13 Edw. 3. stat. 3. chap. 1.