- Yes, you could get bail in the Victorian period.
- No, it didn't have to be in cash.
- Yes, someone else could provide the sureties required by the court.
- Some women could provide the sureties required by the court if they wished to.
- Wives could only do so in the later part of the Victorian period (when they were actually permitted to own property in their won right).
Bail in Victorian England
The bail system in the UK doesn't actually involve 'bail bonds'. Bail is granted by the court, and in England and Wales in the Victorian period (indeed, for the whole period from 1679 until the Bail Act, 1976 was passed), was granted under the provisions of the Habeas Corpus Act 1679.
The Habeas Corpus Act 1679
The Habeas Corpus Act stated that:
"... the said Lord Chancellor or Lord Keeper, or such Justice or Baron before whom the prisoner shall be brought as aforesaid, shall discharge the said prisoner from his imprisonment, taking his or their recognizance, with one or more surety or sureties, in any sum according to their discretions, having regard to the quality of the prisoner and nature of the offense ..."
The 'surety or sureties' did not have to be cash, they just had to be of sufficient value (in the opinion of the presiding judge or magistrate) to ensure that the accused actually turned up in court when they were supposed to do so.
Of course, if the accused failed to appear, then the 'surety or sureties' were forfeit.
The value of the sureties required by the court
The amount of bail was at the discretion of the judge or magistrate. The only restriction was a clause in the Bill of Rights 1689 which stated:
And excessive Baile hath beene required of Persons committed in Criminall Cases to elude the Benefitt of the Lawes made for the Liberty of the Subjects.
That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.
(The similarity in wording between this and parts of the Eighth Amendment to the United States Constitution is not a coincidence!)
Could someone else provide the sureties required by the court?
Having set the amount of bail, there was nothing in the legislation to prevent the required sureties being provided by someone else. That person assumed the risk that the sureties provided as bail would be forfeit if the prisoner failed to appear when required to do so.
Could women provide sureties to obtain bail?
A woman could certainly provide surety as bail, provided she was not under-age (and so the responsibility of her parents, who also controlled her assets) or - for much of the Victorian period - married.
What about wives?
It is important to remember that prior to the Married Woman's Property Act 1870, a wife could not own property in her own right, (in fact, although it was a hugely important step, the 1870 Act only gave wives limited rights to own property, and it wasn't until the Married Women's Property Act 1882 that married women gained full property rights in England and Wales).
So, to summarise:
- prior to 1870, if the wife had owned sufficient assets to provide the required sureties, they had become the property of the husband when they married, and he could use them to obtain bail.
- After 1882, a wife could offer sureties in her own right to obtain bail for her husband.
- From 1870 to 1882 it rather depended on the nature of the assets that they owned.