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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.
In medieval England, methods to insure the
accused would appear for trial began as early as
criminal trials themselves. Until the 13th
century, however, the conditions under which a
defendant could be detained before trial or
released with guarantees that he would return
were dictated by the local Sheriffs.x
As the regional representative of the crown,
the sheriff possessed sovereign authority to
release or hold suspects. The sheriffs, in
other words, could use any standard and weigh
any factor in determining whether to admit a
suspect to bail. This broad authority was not
always judiciously administered. Some sheriffs
exploited the bail system for their own gain.
Accordingly, the absence of limits on the power
of the sheriffs was stated as a major grievance
leading to the Statute of Westminster.xi
The Statute of Westminster in 1275 eliminated
the discretion of sheriffs with respect to which
crimes would be bailable. Under the Statute,
the bailable and non-bailable offenses were
specifically listed.xii The sheriffs
retained the authority to decide the amount of
bail and to weigh all relevant factors to arrive
at that amount. The Statute, however, was far
from a universal right to bail. Not only were
some offenses explicitly excluded from bail, but
the statutes' restrictions were confined to the
abuses of the sheriffs. The justices of the
realm were exempt from its provisions.
Applicability of the statute to the judges was
the key issue several centuries later when bail
law underwent its next major change. In the
early seventeenth century, King Charles I
received no funds from the Parliament.
Therefore, he forced some noblemen to issue him
loans. Those who refused to lend the sovereign
money were imprisoned without bail. Five
incarcerated knights filed a habeas corpus
petition arguing that they could not be held
indefinitely without trial or bail. The King
would neither bail the prisoners nor inform them
of any charges against them. The King's reason
for keeping the charges secret were evident: the
charges were illegal; the knights had no
obligation to lend to the King. When the case
was brought before the court, counsel for the
knights argued that without a trial or
conviction, the petitioners were being detained
solely on the basis of an unsubstantiated and
unstated accusation. Attorney General Heath
contended that the King could best balance the
interests of individual liberty against the
interests of state security when exercising his
sovereign authority to imprison. The court
upheld this sovereign prerogative argument.xiii
Parliament responded to the King's action and
the court's ruling with the Petition of Right of
1628. The Petition protested that contrary to
the Magna Carta and other laws guaranteeing that
no man be imprisoned without due process of law,
the King had recently imprisoned people before
trial "without any cause showed." The Petition
concluded that "no freeman, in any manner as
before mentioned, be imprisoned or detained..."
The act guaranteed, therefore, that man could
not be held before trial on the basis of an
unspecific accusation. This did not, however,
provide an absolute right to bail. The offenses
enumerated in the Statute of Westminster
remained bailable and non-bailable. Therefore,
an individual charged with a non-bailable
offense could not contend that he had a legal
entitlement to bail.
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