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How American Commercial Bail Developed Differently From Other Common Law Countries

NCJ Number
International Journal of Comparative and Applied Criminal Justice Volume: 18 Issue: 2 Dated: (Fall 1994) Pages: 265-276
F E Devine
Date Published
12 pages
This article examines how the American branch of the common- law heritage came to deviate so strikingly from the rest of the common-law countries on the matter of commercial bail.
Beginning in the second half of the 19th Century, courts principally in Ireland, England, and India began to act against payment to bail sureties, based on the belief that any indemnification of them, even partial, undermined their reliability. Irish courts considered indemnified potential sureties to be unreliable. If all potential sureties are indemnified, bail was denied. In England, courts declared agreements to indemnify sureties illegal contracts contrary to public policy, which would not be enforced by the courts. Although India accepted the refinement of this position, England proceeded to declare agreements to pay bail sureties to be criminal conspiracies. Meanwhile, in the United States, a circumscribed version of the position that indemnification contracts were against public policy -- and therefore illegal and unenforceable -- actually gained acceptance between 1870 and 1912. In 1912, however, Justice Holmes in Leary v. U.S. renounced the common law concept of bail sureties in favor of an "impersonal and wholly pecuniary" view. This terminated the anti- indemnification movement. Courts soon noted the detrimental effects of commercialism on bail. 12 references and 49 cited cases


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