Amdt8.1.1.1 Excessive Bail Prohibition: Historical Background

Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.1 The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.2 These two contrasting views of the excessive bail provision, expressed by the Court in the same Term, reflect the ambiguity inherent in the phrase and the absence of evidence regarding the intent of those who drafted and who ratified the Eighth Amendment.3

The history of the bail controversy in England is crucial to understanding why the ambiguity exists.4 The Statute of Westminster the First of 12755 set forth a detailed enumeration of those offenses that were bailable and those that were not, and, though supplemented by later statutes, it served for something like five and a half centuries as the basic authority.6 Darnel’s Case,7 in which the judges permitted the continued imprisonment of persons without bail merely upon the order of the King, was one of the moving factors in the enactment of the Petition of Right in 1628.8 The Petition cited the Magna Carta as proscribing the kind of detention that was permitted in Darnel’s Case. The right to bail was again subverted a half-century later by various technical subterfuges by which petitions for habeas corpus could not be presented,9 and Parliament reacted by enacting the Habeas Corpus Act of 1679,10 which established procedures for effectuating release from imprisonment and provided penalties for judges who did not comply with the Act. That avenue closed, the judges then set bail so high that it could not be met, and Parliament responded by including in the Bill of Rights of 168911 a provision [t]hat excessive bail ought not to be required. This language, along with essentially the rest of the present Eighth Amendment, was included within the Virginia Declaration of Rights,12 was picked up in the Virginia recommendations for inclusion in a federal bill of rights by the state ratifying convention,13 and was introduced verbatim by Madison in the House of Representatives.14

Thus, in England, the right to bail generally was conferred by the basic 1275 statute, as supplemented; the procedure for assuring access to the right was conferred by the Habeas Corpus Act of 1679; and protection against abridgement through the fixing of excessive bail was conferred by the Bill of Rights of 1689. In the United States, the Constitution protected habeas corpus in Article 1, § 9, but did not confer a right to bail. The question is, therefore, whether the First Congress in proposing the Bill of Rights knowingly sought to curtail excessive bail without guaranteeing a right to bail, or whether the phrase excessive bail was meant to be a shorthand expression of both rights.

Compounding the ambiguity is a distinctive trend in the United States that had its origin in a provision of the Massachusetts Body of Liberties of 1641:15 guaranteeing bail to every accused person except those charged with a capital crime or contempt in open court. Copied in several state constitutions,16 this guarantee was contained in the Northwest Ordinance in 1787,17 along with a guarantee of moderate fines and against cruel and unusual punishments, and was inserted in the Judiciary Act of 1789,18 enacted contemporaneously with the passage through Congress of the Bill of Rights. It appears, therefore, that Congress was aware in 1789 that certain language conveyed a right to bail and that certain other language merely protected against one means by which a pre-existing right to bail could be abridged.


  1.  Jump to essay-1Stack v. Boyle, 342 U.S. 1, 4 (1951). Note that, in Bell v. Wolfish, 441 U.S. 520, 533 (1979), the Court enunciated a narrower view of the presumption of innocence, describing it as a doctrine that allocates the burden of proof in criminal trials, and denying that it has any application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.
  2.  Jump to essay-2Carlson v. Landon, 342 U.S. 524, 545 (1952). Justice Black in dissent accused the Court of reducing the provision below the level of a pious admonition by saying in effect that the Amendment does no more than protect a right to bail which Congress can grant and which Congress can take away. Id. at 556.
  3.  Jump to essay-3The only recorded comment of a Member of Congress during debate on adoption of the excessive bail provision was that of Mr. Livermore. The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be judges? 1 Annals of Congress 754 (1789).
  4.  Jump to essay-4Still the best and most comprehensive treatment is Foote, The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959, 965–89 (1965), reprinted in C. Foote, Studies on Bail 181, 187–211 (1966).
  5.  Jump to essay-53 Edw. 1, ch. 12.
  6.  Jump to essay-61 J. Stephen, A History of the Criminal Law of England 233-43 (1833). The statute is summarized at pp. 234-35.
  7.  Jump to essay-73 How. St. Tr. 1 (1627).
  8.  Jump to essay-83 Charles 1, ch. 1. Debate on the Petition, as precipitated by Darnel’s Case, is reported in 3 How. St. Tr. 59 (1628). Coke especially tied the requirement that imprisonment be pursuant to a lawful cause reportable on habeas corpus to effectuation of the right to bail. Id. at 69.
  9.  Jump to essay-9Jenkes’ Case, 6 How. St. Tr. 1189, 36 Eng. Rep. 518 (1676).
  10.  Jump to essay-1031 Charles 2, ch. 2. The text is in 2 Documents on Fundamental

    Human Rights 327–340 (Z. Chafee ed., 1951).

  11.  Jump to essay-11I W. & M. 2, ch. 2, clause 10.
  12.  Jump to essay-127 F. Thorpe, The Federal and State Constitutions, H. R. Doc. No. 357, 59th Cong., 2d Sess. 3813 (1909). Sec. 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
  13.  Jump to essay-133 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Constitution 658 (2d ed. 1836).
  14.  Jump to essay-141 Annals of Congress 438 (1789).
  15.  Jump to essay-15No mans person shall be restrained or imprisoned by any Authority what so ever, before the law hath sentenced him thereto, If he can put in sufficient securtie, bayle, or mainprise, for his appearance, and good behavior in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it. Reprinted in I Documents on Fundamental Human Rights 79, 82 (Z. Chafee, ed., 1951).
  16.  Jump to essay-16That all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption great. 5 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d Sess. 3061 (1909) (Pennsylvania, 1682). The 1776 Pennsylvania Constitution contained the same clause in section 28, and in section 29 was a clause guaranteeing against excessive bail. Id. at 3089.
  17.  Jump to essay-17All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. Art. II, 32 Journals of the Continental Congress 334 (1787), reprinted in 1 Stat. 52 n.
  18.  Jump to essay-18And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which case it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion herein . . . . 1 Stat. 91 § 33 (1789).