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Etymology of Great Legal Words: Bail

By George Khoury, Esq. on December 14, 2018 | Last updated on March 21, 2019

In the world of criminal justice, one of the more important legal terms, especially for the people actually facing the charges, is bail. It's also a significant word in the civil context, such as when property is temporarily held in another's custody.

But, like many great legal words, bail has many other meanings, too, some which you might already know, and you might be surprised to learn that it originally didn't have any connection to the law, nor cricket (aka wannabe baseball), and not even boats. 

Read on below to learn more about how the word bail came to be a great legal word.

Bailing Instead of Jailing

The term bail, as we know it today, is rooted in 12th- and 13th-century French and
Latin, and simply meant a bucket, and some years later, found common usage in the nautical sense that we know today, as in to bail water out of a boat. In Old Norse, bail originally referred to a bucket's curved handle.

However, around the same time, or perhaps even earlier (sources vary), it was also used to denote the concept of giving property over to someone to hold in their custody temporarily. That meaning comes from the Latin term baiulus (which means "porter, carrier, one who bears burdens for pay.") Notably, in medieval Latin times, there were actually people who were water porters, who carried water in buckets for pay, and if you've ever carried water in a bucket, you know that it really is quite a burden.

Some years later, between the late 14th to the 16th century, the legal usage became much more common, and took on the meaning we use today in criminal justice: To pay a security for the release of a prisoner pending trial. In the early 14th century, the term took on the meaning of "guardianship, charge" (in the bailment sense), but soon evolved to mean "custody, captivity." And as you likely know from practice, while a bailee may not be physically captive or in custody of the person who paid their bail, if the payor wants their money back, they better be sure to get the bailee to court when required.

Mixed Meanings

While the above seems to suggest that our modern legal usage evolved independently from the bailing-water-out-of-a-boat usage, it's easy to see how the legal and non-legal meanings are connected. After all, if your boat is taking on water, bailing it out is only a temporary solution to a bigger problem, much like being released on bail pending trial.

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