The History of Bail Bonds

    • This History of Bail in the United States
      The framers of the constitution, in an effort to protect American citizens from the repeated tyranny of British rule, wanted to insure that citizens were adequately protected from their government.  While the concept of Bail was first created in England under their Common Law, it only protected the upper class and not the lower or middle classes. 

      The 8th Amendment to the U.S. Constitution declared that bail was guaranteed to insure the Court that a criminal defendant will appear for his trial.  It also protected citizens from “excessive bail”, “excessive fines”, and cruel and unusual punishment.  This means that every U.S. citizen has a right to the bail process if they are arrested.

      The bail clause in the 8th Amendment was only one part of the American bail process.  As in England, the American system also includes guarantees against imprisonment without informing the suspect of his crime.   The 6th Amendment to the Constitution, like the English Habeas Corpus Act of 1678, insures that when arrested, a man "be informed of the nature and cause of the accusation" thereby enabling him to demand bail if he has committed a bailable offense.  The final part of the American bail structure and the element upon which the Constitution provisions are based is the statutory codification of justice officials' power concerning bail and the categorization of crimes into bailable and nonbailable offenses.  The Constitution merely guarantees that excessive bail may not be employed to hold suspects who by law are entitled to bail; similarly the Sixth Amendment enables prisoners to know if they are in fact entitled to bail under the law; it does not give them any right to bail already existing in the law.

      Thus, the legislature and not the constitution is the real framer of bail law; the constitution upholds and protects against abuse of the system which the legislature creates.  This principle was well understood by the Framers of the Bill of rights.  In fact, the same Congress that proposed the Eighth Amendment also formulated the fundamental bail statute that remained in force until 1966.  This was accomplished in 1789, the same year that the Bill of rights was introduced, when Congress passed the Judiciary Act.  The Act specified which types of crime were bailable and set bounds on the judges' discretion in setting bail.   Following the tradition of State laws developed during the colonial period which in turn were based on English law,xxiv the Judiciary Act stated that all noncapital offenses were bailable and that in capital offenses, the decision to detain a suspect before trial was left up to the judge.

      Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases 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 therein, regarding the nature and circumstance of the offense, and of the evidence, the usages of law.