The History Of Bail From Knights To Lbj And Beyond
by Robert Miller,
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UNITED STATES, May 12 — Just before a judge pronounces “bail is set at …,” a fascinating history dating back to medieval times has preceded the frequent court event. While bail bond hearings and the modern American courtroom go hand and hand now, the process is steeped in ancient tradition and an almost folkloric quality.
To be sure, bail bonds are rooted in everyday law. Johnson said at the Signing of the Bail Reform Act of 1966
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ust before a judge pronounces “bail is set at …,” a fascinating history dating back to medieval times has preceded the frequent court event. While bail bond hearings and the modern American courtroom go hand and hand now, the process is steeped in ancient tradition and an almost folkloric quality.
To be sure, bail bonds are rooted in everyday law. Bail is the security posted for the accused to ensure that he or she will appear in court and answer to the accusation brought against the individual. Bail can be posted in the form of cash or bail bonds.
As the California Bail Agents Association points out the Eighth Amendment to the U.S. Constitution requires that bail not be excessive. With certain exceptions a defendant charged with a criminal offense can be released on bail. Suspects charged with capital crimes when the facts are evident or the presumption of guilt great may not be released on bail and are incarcerated until trial.
Just exactly how bail bond hearings became a routine part of the American court system has been open to interpretation.
The Tennessee Association of Professional Bail Agents reports: “The origins of the American bail system are uncertain. There are theories on how it came about. One is that it originated in the Anglo Saxon tribes of old England. These tribes used to take hostages and then release them when the promise of a certain person was fulfilled or a certain consequence achieved.”
The Professional Bail Agents of the United States, based in Washington D.C., subscribes to the widely held view that the American colonists incorporated the English tradition from the Statute of Westminster in 1275, which eliminated the discretion of sheriffs over which crimes would be available for bail or not.
In the early seventeenth century, King Charles I received no funds from the Parliament so he forced some noblemen to issue him loans. Those who refused to lend the king 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.
Parliament responded to the king’s action and the court’s upholding of the ruling with the Petition of Right of 1628. Parliament would again respond with the Habeas Corpus Act of 1677 and the English Bill of Rights of 1689 by condemning use of excessive bail.
The American example began with the First Congress, which brought about the Eighth Amendment and the Judiciary Act of 1789. However, the Judiciary Act of 1789 did not differentiate between bail before and after conviction. Not until 1946 in the Federal Rules of Criminal Procedure was a distinction clearly made. Little changed until 1966 when Congress supported reasonable bail and enacted the first major change in federal bail law since 1789.
“So today we join to recognize a major development in our entire system of criminal justice — the reform of the bail system,” President Lyndon B. Johnson said at the Signing of the Bail Reform Act of 1966.
In 1984, Congress replaced the Bail Reform Act of 1966 with new bail law, which allows pre-trial detention of individuals based upon their danger to the community, not just for risk of flight.
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Just before a judge pronounces “bail is set at …,” a fascinating history dating back to medieval times has preceded the frequent court event. While bail bond hearings and the modern American courtroom go hand and hand now, the proc
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