CHAPTER- II

THE CONCEPT OF BAIL A HISTORICAL PERSPECTIVE

If one goes to pre-historic times, it is discovered that primitive man who lived in the "ideal
state of nature" was slowly drive to organise himself with others into small tribes which
formed the foundation of social control. To think that man in this original predive state was
happier because the existence of society had not corrupted his inherent freedom of action
would be an error. The fear of hunger, a harsh environment and the struggle for survival itself
made a state of nature, a somewhat undesirable status to live in. To seek protection from
these brutish forces, men formed themselves into societies. Thus, it would seem that the
original state of man-the state of nature rather than being ideal was an existence from which
man sought to escape.

Society probably comes into existence to protect the individual from fear, loneliness,
uncertainty, the unknown or unexpected and the more serious rages of the struggle for
survival. Early man's desire was to overcome these dangers; but being naturally self-
interested, he wanted to do so without surrendering the inherent freedom enjoyed in the
absence of control by society. His ideal concept of control by society, therefore was only to
the point necessary to achieve the desired goals. But throughout history, in entering society,
societal interests have been over-exerted to the extent that the goals sought by men many
times are achieved at the cost of total or near total surrender of individual rights.

Through history the protection of society is directed to a select few rather than all individuals.
Thus, in a large measure, any discussion of the origin and development of the individuals’
rights of man Willene the struggle by individuals to guard that measure of individuals
freedom from their rulers which men have never willingly surrendered to society.1

Early Civilizations:
Of the five earliest civilizations, the legal system of the Chinese the only one not founded on
religion. In the Egyptian, the Mesopotamian, the Herbre and the Hindu legal systems, the law
is conceived as revealed and imparted through the ruler, directly from God and therefore, is a

1
Our Inalienable Rights, p. 9
part of the dictates of religion. The Mohammedan legal system too is of Divine origin.

"With the Greeks however in their maturity, is first met a legal system that is ocular; i.e., it is
not conceived as a part of religion emanating from a divine source”.2

(a) Greek Legal System (1200 B.C. to 300 A.D.):

Greece is noted in history as the "Father of democracy." Certainly, this is not wholly true for
men knew of the concept of justice and democracy long before the Greek Civilization.
Nevertheless, many clear statements of modern political ideals such as justice, liberty and
constitutional government are derived from the reflections of Greek thinkers upon the
institution of city-states.

(i) The Greek City-States:

The peninsula of Greece is crises-crossed by various mountain ranges cutting it into various
sections. Somewhere around 1000 B.C., rugged Greek tribesmen settled in these small fertile
valleys separated from each other by mountain ridges. These communities grew into little
city-states. Each city-state with the surrounding country side formed an independent nation
with a king and a council of leading citizens. Important among these were Athens, Sparta,
Thebes3 etc.

There was a government of oligarchy in Athens i.e., government by a few nobles. This did
not satisfy the Athenians who at length demanded reforms. After a hard and long struggle, a
leader named draco gave the Athenians a written code of law (621 B.C.) people was pleased
that they could at least know what the laws were. Earlier, laws were not written and might
easily be changed by dishonest judges.

Nevertheless, the lot of the poor remained miserable. Many of them were slaves of debt. A
reformer, solon (638-558 B.C.) has to the Athenians a new Constitution. It provided that:

1) All men who were slaves for debt were to be free and in future, no man was to be
2
Wigmore Jhn Henry. Panorama of World's legal systems', Vol. I. p. 283.
3
Stromberg, Roland M. 'A History of Western Civilization1. 1969 (Revised Edn.
 made slave for debt.

2) Every Citizen, no matter how poor, was to be permitted to take part in the assembly.

3) Juries were created to which all citizens could appeal.

This was the Greeks’ move towards the modem ideas of democracy by stressing the
participation of individuals in government.

It is noteworthy that citizens of certain Greek states enjoyed such rights as ISOGORIA or
equal freedom of speech and ISONOMIA or equality before the law, which are prominent
among rights claimed in the modern world.

Later, another reformer Calisthenics appeared who made Athens more democratic by
extending the right of citizenship to all freemen irrespective of their social status 4. The Greek
ideal of civilization was everyone’s right of participation in the activities of the city-state.

(ii) The Stoics:

The rise and development of the Greek city state has been the persistent background of Greek
speculative thought on law and government. At the time when Pedicles was the leader of
Athens there arose a philosopher by the name of Socrates. His disciples Plato (427-347 B. C.)
and Aristotle (384-322 B. C.) came to be known as the Stoic philosophers.

The Stoics formulated the doctrine of natural rights as something which belonged to all men
at all times. The postulates of reason were to the Stoics of universal force. Though previous
thinkers had made familiar the part played by reason in molding behaviors, the Stoics
introduced and innovation. They believed in a cosmic mind which governed the world by
reason but they also asserted that reason was the attribute of all men and not citizens alone.
From this the Stoics develop the first great cosmopolitan philosophy of western thought. The
deference of city states, of Greek and barbarian is rejected and a universal world state is
postulated in which men live as equals.

4
This meant that only native-born men could be citizens, Slaves, foreigners and women remained excluded.
Apart from the doctrine of natural rights, the stoics are accredited with giving to the world
two innovative ideas of utmost importance-the idea of a world society and the Equality of
man.

Greece also stands important for its incipient development of constitutional rule. Aristotle,
Plato's famous disciple, made one of the earliest studies of the forms of government when he
reviewed the constitutions of various city states. The drawing up of the "rules of the game"
which the governed and the government alike should follow marks a significant step towards
protection of an individual.

While great changes were going on in the Eastern Mediterranean world, the little city of
Rome on River Tiber was growing.

(b) The Roman period (500 B.C. to 500 A.D.):

Italy was not cut up into small valleys as Greece was by mountains. The western plain was
large enough so that the chief city of Rome could control all of it. Besides the central position
of Italy made it possible to gain control of western Mediterranean at a time when it had no
civilization of its own.

The Early Republic:

It was an elected government of aristocrat only (patricians). The poor workmen and farmers
made the plebian class who had no say in the matter of government. The most important body
in the government was the Senate which was composed of patricians who held office for life.
It had a lot of power in approving of laws, taxation, foreign policy etc. The Assembly which
comprised of weapon bearing men had very little power.

Plebeians Versus Patricians:

The plebeians, dissatisfied with no power granted to them threatened to leave Rome and
found their own city. The Patricians required them for their army. After a struggle that lasted
a century and a half, the plebeians managed to secure (for themselves) a written code of law-
The Twelve Tables.5
5
450 B.C.
Early in the third century B.C., the Assembly constituted by the plebeians and hither to
almost powerless in front of the Senate had also wrenched from the senate the power to make
laws. This brought the distinction between the plebeians and patricians to an end. Rome
became is democracy.

The Roman democracy differed from the Athenian democracy in that whereas the Athenian
was a direct or pure democracy in which all citizens shared in making the law, in Rome it
was the representatives of the people who made the law. This was a democracy suited to a
larger population as compared to the legal systems of Tiony city states like Athens, Pericle,
etc.

Through a series of wars covering more than two centralists, being restless and ambitious to
extend their domain initiated a new concept of conquest that made laws and order effective
immediately upon seizure of new territory. The Romans did not make subjects or slaves of
their conquered people but made them Italian allies in return for military aid and taxes from
6
7
H2]them. This resulted in the establishment of an effective and uniform legal system
throughout the Roman erective. But as their domain grew, they found the application of the
Roman civil law or jus civil upon a diverse people difficult.

The jus civil or the ancient civil law of Rome was applicable to Roman citizens only and not
other races and tribes living under different customs. The ancient idea of citizenship made it
impossible to apply Roman law as such and run the risk of having a parallel legal system for
other races. They looked to the stoic doctrine of natural law postulated by Greek
philosophers. According to them natural rights belong to all men at all times and are binding
on all men
everywhere.

The practical genius of Roman jurisprudence used the Greek conception of nature based on
reason (jus natural) in order to transform the ancient and closed system of civil law into a
cosmopolitan system fit to rule a diverse
people. The Roman Praetor faced with the task of applying law to foreigners under their rule
amalgamated material supplied by foreign laws and customs and relying largely upon
common sense and reason enveloped such legal principles which were applicable to
foreigners. These general principles of justice and reason that the Roman magistrate
developed empirically from case to case came to be identified as the "jus gentium" for the
law of nations. This was available to persons of allnastions including citizens whereas the jus
civil was available to citizens only.

Natural law apart from transforming the old jus civil now created the bases on which Roman
and foreign people could live together under a common rule of law.

At no other period had the ideal of natural law exercised as creative an influence. Roman
legal development. Courts of Justice or basilicas, various tribunals, professional judges and
the Roman praetor came to the forefront. There was a strong legal procession in Rome,
Cicero was one of the most famous Roman Advocates. “The zenith of Roman Juristic science
was achieved in the second and third centuries Anno Domini. By this period Roman legal
system had advanced for beyond that of earlier races; oriental or Greek. The administration of
justice had been separated from political administration-what resembles our theory of
separation of powers.

The Roman law did not exist in one written unit, but was found in the Court Records
scattered over a wide area over a great many years.

We agree with judge R.N. wilkin that " law came to the world through Rome, just as we say
that philosophy and art came through Greece". Rome thus became the cradle of
jurisprudence- the science of law. Said judge walking," The law is the gift of Rome to the
world. Prior to the time of Roman Republic there were laws, but no such concept as the
law."6

It is important to note that by Justinian's time Italy had fallen pray to number of invasions
triggered by Atilla the Hun, and had weakened considerably. Justicnish, ruling from
Constantinople made one last attempt to regain a part of the western Roman Empire but after
his death the west and East separated again. The Empire was dead.
The offices of the Roman Empire but after his death the west and East
6
Wilkin. R.N.. ' The Spirit of the legal profession., p.3
separated again. The Empire was dead.

The offices of the Roman government fell into the hands of the Huns. Barbarian tribes
occupied most of Roman territory that were ruled by chieftains. The roman legal system was
replaced by crude laws and superstitions.

(c) Christianity
:
By this time, Christianity had been born and had spread all over the Roman Empire. There
was a vast slave population due to Prisoners of Wars Captured aj/along during the Roman
conquests who were turned into slaves, because of the mightily rift between the rich and the
poor, the poor found no respite in worshipping their emperor and began to follow the simple
teachings of Jesus.

The greatest impact of Christianity was that it looked alike upon rich and poor, besides it
brought a humaneness in the treatment of slaves and the poor. It dignified human labour
thereby raising to new heights a former pagan world.10Though the emperors did not tolerate
Christianity earlier, later on they did. In 313 A.D. Contenting issued the first decree of
universal religious toleration.

It was in the reign of Theodosius (379-395) that Christianity was made the state religion.
Emperors conferred fours upon the clergy. The higher clergy where given authority almost
equal to that of the governors.

The term Middle Ages was given to the period of Western European history that extended
from the decline of Rome (476 A.D.) to the discovery of America (1942 A.D.) The western
Europeans who lived just after the Middle Ages named it " the dark Ages" because they
thought that it was a period of darkness between the splendor of Rome and the splendor of
the civilization

they were creating. They believed that nothing of importance happened then. Today,
however, we know that the middle Ages was an important period in itself in western Europe.
Many of our cherished institutions on liberty and freedom started during that period of about
a thousand years.
The middle ages is divided into the Early Middle Ages from the fall of Rome to about 1000
A.D. and the late Middle Ages from 1000 A.D. to the discovery of America.

Early Middle Ages :

The Germanic Invasions had raided the Western Roman Empire and fragmented it into small
pieces headed by crude tribal chieftains. Infighting and
invasions among themselves resulted in general chance all over. There was no
education and the days of secretes and Plato seemed very far off.
In Europe, after centuries of invasions and fighting things began to settle
in a new way.

The feudal System :

After the downfall of Rome, the old order in the west had collapsed. The idea of nationality
did not exist any more. There was a time, centuries ago when H6]a roman citizen on being
tried at the smallest court could stand up and forthrightly command equal treatment or justice
by merely alleging that he was a citizen of Rome. But now, all nations of citizenship and
nationality had been eclipsed, instead of nationality or a people belonging to an empire or a
state and being ruled by an Emperor or a government, there was peculiar relation between
man and man. This was the feudal relation.

Feudalism originated in France and slowly spread all over Europe. In those times of chaos,
the rule was might is right. The strong seized what lands they could and bolt castles over it.
The poor peasants an workers on the land of course suffered the most.; They were not
organised and could not defend themselves against the robber barons. There was no central
government strong enough to protect them. \So they came to terms with the lord of the Castle
who
plundered them. They agreed to give him part of what they produced on his land in return for
protection from other robber lords and became his sorts. And step by step they went up to yet
bigger lords and nobles, talent last they arrived at the king at the top of the feudal structure.
Christianity becomes All-Powerful:

As said earlier, Theodosius (379-395 A.D.) had made Christianity the state religion.
Emperors began conferring favours upon the clergy because of their mass following. By the
middle Ages the popes had become very important and powerful.

The Society thus was formed by three classes-The clergy, the nobles and the peasants or
workmen. The peasants or serves as a whole were humble before their masters and accepted
the sharp class distinctions of their times as 1171a matter of course. There was another set of
people who did not attach themselves to any land or lord. They were freeman as they could
make a living as artisans, craftsmen, tool smiths, etc.

A New Middle class emerges :

Despite a class ridden society, changes were coming through the new forms of freemen. The
artisans, Craftsmen and traders formed such a class of people who were not part of the feudal
system. They were skilled freemen who had set up their own workshops and were earning
their livelihood there from. As trade increased and their importance grew they become
wealthy. As trade increased and their importance grew they become wealthy. As their
numbers increases, they formed guilds or association and the headquarters of such association
became guildhalls which later became the town halls. Thus by the first millennium after
Christ (1000 A.D.) a new middle class of townsmen emerged which was destined to give
shape to many of our modern notion of freedom, equality and liberty.

These developments aside, the state of the society and the Holy Roman Empire ream need as
bad as could be. There was general disorder everywhere marked by warring feudal lards,
raide, sieges and fires, after Charlemagne’s death in 814 A.D. Troubles arose for a division of
the spoils of the empire.

France and Germany took shape. Russia also came into formation around 850 A.D. In the
South Eastern Europe, Bulgaria, Serbia, Poland and Hungary began to take shape.
The Norman Invaders from the North :

Meanwhile from Northern Europe men came down in ships to western and southern
European countries and burnt and killed and looted. These• Northern or Normans, as they
came to be called, seized the northwest of France and Gradually settled there and became
lords and landowners. It was these Normans from Normandy in France that went and
conquered England in 1066 A.D. under William, the conqueror.

The Late Middle Ages :

The period fro, 1000 A.D. till the discovery of America in 1492 A.D. is known as the late
Middle ages. This was the age of the Crusades. The Crusades or the Holy wars were fought in
the name of Christ for the capture of Jerusalem. The first Crusade was carried out in 1096
A.D. at the behest of the pope and the last crusade or the Third Crusade began in 1187 A.D.

Despite the invasions and warfare during the decline and fall of the Roman Empire, some
towns survived. They were the ones which had natural protection of the sea or rivers or
swamps. Many were on the old Roman roads that had been centres of commerce on an earlier
day, for example. Florence. Naples, Paris, Marseilles, Tourn. London, Manchester, etc.

Towns Grow In Size And Importance :

Beginning in event century, towns grew in size and importance. The Crusades hastened their
development as centres of trade. A lot of other people also flocked to the towns as they gave
protection in times of wharf are. the townsmen become very wealthy.

By the thirteenth century, towns and become important politically. In both France and
England towns men were permitted to sit in Parliaments. They had money and so were
important in the eyes of the king as willing tax payers. Sometimes townsmen banded together
and wrested Charters from King and Nobles which usually granted them freedom from the
payment of feudal dues and the right to select some of their own officials for governing the
town they belonged to. Earlier feudal lords and nobles were quite powerful. As the powers of
the nobles declined and many western European kings become more and more the masters of
their countries, instead of deriving their income primarily form the
feudal dues of the Lords, Kings now taxed their countries, instead of deriving their income
primarily from the feudal dies of the Lords, kings now taxed their subjects to run their
governments. Much of this money came from the new middle class. Besides kings also knew
that wealthy townsmen would be more willing to pay taxes, if, like the nobles, they were
included in the discussion of the nation's business.

II - HERITAGE OF COMMON LAW

Irrespective of the long gap from the early Greek and Roman concepts of liberty, democracy
and justice for man, many of their great principles weathered the storms of the Middle
Ages, Including other systems of Jurisprudence. Despite prevalent feudalism, France had not
altogether forgotten that the Code Napoleon or Civil code had its roots there. Even though the
Northern or Normans had occupied part of France as barons and landowners yet they did not
remain oblivious to this code. The jus civil or Civil law followed these Normans through
Europe and across the English Channel into England.Henry, the Second (1154-1189 A.D.):

Henry, the second was the son of French nobleman and his mother was the Grand daughter of
William the Conqueror who conquered England in 1066 A.D. He was one of the ablest kings
England ever had. Henry inherited lands in France as well as the throne of England. He was
interested in law and he found great confusion in the Courts of England/' Many of these
were the feudal courts. It would do well to remember that feudalism was prevalent in
England.

He wanted to get more law cases tried in the kings courts especially cases dealing with the
holding of land and got many cases out of the feudal courts which tended to be arbitrary and
partisan. His judges traveled from place to place holding trials where the people lived instead
of where the king lived. They combined he legal customs they found there with the legal
opinions laid down by the kings courts.

In this way they built a body of law uniform for all England. This combined the legal customs
they found there with the legal opinions laid down by the kings courts.In this way they built a
body of law uniform for all England. This we call the Common Law, it was more just and
humane than law of most feudal courts.
Trial by jury was another practice started under Henry's rule.

RICHARD-1 (1189- 1199 A.D.) :

Richard-I was the son of Henry II and succeeded him top the throne in1189 AD. it had been
the practice among the kings to demand feudal dues from the barons and nobles for one
purpose or another. For the purpose of raising funds for the Third Crusade (1189)
RICHARD-I devised a novel way. He hold charters of self government of towns including
the town of London. While the selling of these characters was bad for this throne, the rights
which the townsmen gained were good. It was in the self governed Towns that the spirit of
liberty developed.

JOHN (1199-1216 AD.) :

Richard's death brought to the throne his brother John (1199-1216) who was perhaps the least
loved of the English kings because of his tyrannical rule England and France were old rivals.
John's contemporary in France was Philip Augustus, the king of France. They quarreled the
Philip occupied most of such lands of John that he had held in France.

It was a royal practice to demand money in the form of feudal dues from the nobles under one
pretext or the other. Sometimes these demands were too 122]high or for an unreasonable
cause.

Resentment in the nobility had been festering for long against king John's capricious ways of
demanding feudal dues from them from time of time.John after losing most of his lands in
France to phpop Augustus not only demanded funds for his barons and nobles but also
demanded that they go with him to France to fight and regain his land from Augustus. They
refused saying that their feu ions did not require them to fight outside England. After many
threats on both sides and many unlawful measures taken by the king to thwart the nobles of
London they ultimately conquered him at the island Runnymede and in the end made him
sign a Charter of Rights. This famous document known as the Magna Carta (1216) or the
Great Charter clipped the king's powers and laid the foundation of English Rights.
(a) The Magna Carta :

It was a charter of grievances against the king which stated in legal terms some of the leading
ideas of modern Government. The original intent may have been merely to gain feudal
liberties- a theory occupied by most authors today but the effect has been its transformation
into a charter of "liberty of the subject"' 7 An examination of one of the most famous clauses,
clause 29, indicates how such a broad interpretation was possible.

Clause 29 :

"No freeman shall be taken and imprisoned or diseased of any free tenement or of his
liberties or free customs, or outlawed, or exiled, or in any other way destroyed, nor will we
go upon him nor send upon him, except by the lawful judgement of his peers or by the law of
the land.

"To not one will we sell, to no one will we refuse or delay right or justice"'3
These words furnished at least one source of a number of our present well-established rights,
such as due process, habeas Corpus and trial by a jury of .peers i.e. where equals sit on
judgment.

Evidence of the Charter's influence of legislation and trials began creeping slowly into statues
and reported precedents about seventy-five years after the signing of the Magna Carta. In
1307, a case arose involving a bishop who had been imprisoned and deprived of his lands. No
specific charges were made against him and he was held for two years without a trial. The
Magna Carta was employed to secure his release and, later, to form the basis of his civil
claim for damages in the amount of Pounds 20,000 in which the allegations stated that he was
imprisoned and deprived of his lands "without being arraigned, or called in judgment, against
the form of the law of the land, and against the points of the Greater Charter".

7
Venkata Rao, K. 'Liberty & Social Control.' 1953 SCJ XVI 203
(b) Trial by Jury and habeas Corpus8 :

Another right attributable to the magus Carta Grows out of the Phrase.
"No man shall be imprisoned, except by the lawful judgement of his peers "The first instance
in which this phrase was connected with the right to Trial by Jury appears in a case tried in
1302. In this case, an accused knight objected to the Jury at his trial because it was not made
up of his peers.

The court upheld the objection holding that the phrase "Judgement of his peers" required that
the jury in this instance be composed solely of knights. Other evidence of the influence of the
Magna Carta is reflected in early statues. An enactment in 1331 provided that neither life nor
liberty not properly should be taken" against the form of the Great Charter."

Development of the Great Council or the Parliament’:

This body in the development of the Great Council came when John's son, Henrry-lll became
ruler. He became unpopular with his subjects and the nobles led by Simon de Mont fort made
prisoner, Simon called a meeting of the great council. It comprised of not only nobles, abbots
and bishops, but for the first time included two knights from each country and two citizens
from each large town. This meeting which was held in 1265 was the first one to include
others apart from the bobbles of England.

Edward-I (1272-1307) and the model Parliament:

When Edward-I was king he called a meeting of the great Council. This meeting in 1295 has
come down through history as the model Parliament as it brought about a division of the
parliament into two Houses (The House of Lords and the House of Commons). This was the
beginning of the English Parliament.

The knights and Citizens came to form the House of Commons, the nobles and bishops, the
House of Lords. The members of the house of Lords inherited their right to sit there. The
members of the House of Commons were elected.
8
Cahn. Edmund, 'The Great Rights' 1960.