What Is Bail ?

The language of the English Bill of Rights was only one part of the bail system developed through many years of English law. As Caleb Foote has explained and this analysis recounts, English protection against unjustifiable detention contained three essential elements: first, offenses were categorized as bailable or not bailable by statutes beginning with Westminster I which also placed limits on which judges and officials could effect the statue; second, habeas corpus procedures were developed as an effective curb on imprisonment without specific changes; and third, the excessive bail clause of the 1689 Bill of Rights protected against judicial officers who might abuse bail policy by setting excessive financial conditions for release. English law never contained an absolute right to bail.

Bail laws in the United States grew out of a long history of English statutes and policies. During the colonial period, Americans relied on the bail structure that had developed in England hundreds of years earlier. When the colonists declared independence in 1776, they no longer relied on English law, but formulated their own policies which closely paralleled the English tradition. The ties between the institution of bail in the United States is also based on the old English system. In attempting to understand the meaning of the American constitutional bail provisions and how they were intended to supplement a larger statutory bail structure, knowledge of the English system and how it developed until the time of American independence is essential.