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The History Of Surety Bonds

Through the pages of history, you can find "surety."

Surety is a person who takes on responsibility for another OR surety is something that gives assurance against loss, damage, or default.

You can still hear that term in modern courts, where bail is known as a surety bond.

From Bible to Babylon to the USA
It seems societies have long struggled to ensure the good behavior of their citizens - from the Bible (Old Testament times) through the laws of the Babylonian King Hammurabi (1700 B.C.), and through English common law to the late 20th Century in the United States of America, one can read about a surety.

The Code of Hammurabi and old English law were similar. Entire communities, including their governors in the kingdom of Babylon, pledged to find and execute an offender or be responsible to the victim. In England, everyone over 14 was responsible to his community for general good behavior. The English community was called a "tithing" and consisted of 10 freeholders and their families, knit together as a unit of society, and bound to the king for the peaceable behavior of each other.

The Bible sometimes warns against becoming a surety for a stranger and may provide the basis for the term "losing one's shirt" in Proverbs 20:16, which says "Take this garment that is surety for a stranger."

It has always been difficult for any one person to be another's surety, for that person could face disasters ranging from death to financial suicide if he failed. And, just as today, a person asked to post a bond was faced with the possibility of financial ruin or refusing the request of a friend or relative who needed bond and often had no other alternative.

The next development was the surety company, first formed in London in 1840. The first corporate surety in the United States came into being in 1876. It was the Fidelity and Casualty Company.

Contract Law to Procedural Rules
Throughout the 19th Century and most of the 20th Century, American courts basically saw actions undertaken to assure the appearance of a defendant in court or payment of a bond as a contractual matter between the bail company agent and the defendant. Agents of the state would rarely interfere.

In the late 1900s, courts in the United States began to place some limits on a bondsman's activities in capturing a fugitive. In earlier court cases, there had been no requirement for due process or equal protection of the law because the private contract between bail and the principal was beyond the boundaries of constitutional requirements. After all, the principal had agreed to the bail terms already! Bond agents could pursue their principals anywhere in the Unites States and return them without extradition proceedings.

In the late 1960s and into the 1970s, a few key court cases indicated a trend toward tighter controls on bail agents. A Pennsylvania case in 1971 (Smith vs. Rosenbaum, 333 F Supp 35 E.D. PA 1971) set a precedent that brought activities of bail agents under "state action." This decision increased the possibility that bail agents would face claims against them for abridging the civil rights of their principals.

Many in the bail industry invite greater protection against an abusive surety or bail agent. But, as the court stated in Nicolls vs. Ingersoll, restricting bail agents too severely could impair their right to protect their bonds. Deprived of their enforcement remedies, few bondsmen might be willing to write (uncollateralized) bonds, making it more difficult for an accused person to obtain bail.

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