English customs which have been preserved to us are somewhat more advanced, but one of the noticeable features in their procedure is the giving of security at every step.  All lawyers will remember a trace of this in the fiction of John Doe and Richard Roe, the plaintiff’s pledges to prosecute his action.  But a more significant example is found in the rule repeated in many of the early laws, that a defendant accused of a wrong must either find security or go to prison. 2 This security was the hostage of earlier days, and later, when the actions for punishment and for redress were separated from each other, became the bail of the criminal law.  The liability was still conceived in the same way as when the bail actually put his own body into the power of the party secured.

One of Charlemagne’s additions to the Lex Salica speaks of a freeman who has committed himself to the power of another by way of surety. 3 The very phrase is copied in the English laws of Henry I. 4 We have seen what this meant in the story of Huon of Bordeaux.  The Mirror of Justices 5 says that King Canute used to judge the mainprisors according as the principals when their principals not in judgment, but that King Henry I. confined Canute’s rule to mainprisors who were consenting to the fact.

As late as the reign of Edward III., Shard, an English judge, after stating the law as it still is, that bail are a prisoner’s [250] keepers, and shall be charged if he escapes, observes, that some say that the bail shall be hanged in his place. 1 This was the law in the analogous case of a jailer. 2 The old notion is to be traced in the form still given by modern writers for the undertaking of bail for felony.  They are bound “body for body,” 3 and modern law-books find it necessary to state that this does not make them liable to the punishment of the principal offender if he does not appear, but only to a fine. 4 The contract also differed from our modern ideas in the mode of execution.  It was simply a solemn admission of liability in the presence of the officer authorized to take it.  The signature of the bail was not necessary, 5 and it was not requisite that the person bailed should bind himself as a party. 6

But these peculiarities have been modified or done away with by statute, and I have dwelt upon the case, not so much as a special form of contract differing from all others as because the history of its origin shows one of the first appearances of contract in our law.  It is to be traced to the gradual increase of faith in the honor of a hostage if the case calling for his surrender should arrive, and to the consequent relaxation of actual imprisonment.  An illustration may be found in the parallel mode of dealing with the prisoner himself.  His bail, to whom his body is supposed to be delivered, have a right to seize him at any time and anywhere, but he is allowed to go at large until [251] surrendered.  It will be noticed that this form of contract, like debt as dealt with by the Roman law of the Twelve Tables, and for the same motive, although by a different process, looked to the body of the contracting party as the satisfaction.