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Bail History

Did you know where bail comes from?

The United States Bail law is patterned after a centuries old English law. Prior to 1275, English sheriffs decided whether bail would be given. They also set the amount required for bail. In 1275 English parliament declared when bail would be granted, but continued to allow the sheriffs to set the amount.

In 1628 several nobleman in England refused to loan money to King Charles. They were arrested with no explanation of the charges against them. Parliament enacted a Petition of Right, which declared the right of the accused to know the charges against them. The King ignored the ruling. In 1677 Parliament passed the Habeas Corpus Act providing for release on bail for all bail-able offenses. Bail was typically set too high for most prisoners.

The English Bill of Rights of 1689 prevented unreasonable bail requirements. The law provided that offenses were either bail-able or not bail-able and detention without specific charges and excessive bail was prohibited.

In 1789 James Madison drafted the Bill of Rights with similarities of English law that can be found in the Eighth and Sixth amendments.

Today we have laws that are direct descendants of early English law that include:

  • Offenses are categorized as bail-able or not bail-able
  • Detention without specific charges is prohibited
  • Excessive bail is prohibited

It is important to note that under U.S. Law, the right to bail is not absolutely guaranteed. This right is controlled by the Legislature, the real source of bail law, and the Constitution acts to protect against abuses.

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