Bail

In English and American law, the obligation of sureties in a sum named, that the person under arrest in a civil or criminal cause will, if set at large, deliver himself up to stand trial and submit to judgment. Such obligation is unknown to Jewish law. There could not be Bail in civil causes, for there was no arrest for debt. In criminal, at least in capital, cases it was the duty of the court to hold the accused "in ward" till his guilt or innocence, and the mode of punishment, should be ascertained. The Talmud (Sanh. 78b) draws this rule from the case of the blasphemer (Lev. xxiv. 12) and of him who gathered sticks on the Sabbath (Num. xv. 34). And as trials were very prompt and speedy—whether the punishment was death or stripes—the hardship of imprisonment without Bail, if the prisoner proved innocent, was not great.

The Talmud (Sanh. 78b) applies the law of imprisonment to one that has beaten or wounded another so sorely as to confine him to his house (Ex. xxi. 18, 19). It comments on the words, "If he rise again and walk upon his staff, then he that smote him shall be quit," thus: "This can not mean that the smiter shall be free from the death penalty; for this he is, of course, not having killed anybody; but that, then, he shall be freed from custody. But the old halakic Midrash Mekilta (Mishpaṭim. vi.) says on this verse: 'You would think that the smiter might furnish sureties and then go at large; but no, we are taught here that he is imprisoned till the wounded man is healed.' In fact, to take Bail while the stricken man may die of his wound, and his smiter thus incur the guilt of blood, would, in spirit and effect, violate the law, 'Ye shall take no ransom for the life of a manslayer' (Num. xxxv. 31); moreover, as a rich man can readily give Bail and the poor man can not, the release of the prisoner on Bail would run counter to that other oft-repeated rule of the Torah, 'One law there shall be to you.'"

J. Sr. L. N. D.