The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

8th Amendment

The Early History of Bail

Statute of Westminster

Prohibition of excessive bails and excessive fines had a long (and sometimes troubled) history in England. The Statute of Westminster I (1275) set out a list of offenses that were to be subject to bail and which were not. This statute was altered from time to time, but it served the courts as a guide for centuries. Nonetheless, the courts, often with interference from the King, sometimes subverted the statute’s intentions. In 1628, King Charles I imprisoned a few knights, among whom was Thomas Darnel, for refusing to participate in his policy of forced loans. When they appealed their imprisonment on a Writ of Habeas Corpus, the court refused bail out of deference to the prerogatives of the crown. “Darnel’s Case” became the incentive for Parliament’s Petition of Right of 1628, which clarified and gave more force to the rights of the accused. 

The following decades saw a number of maneuvers and counter-maneuvers between courts, Crown, and Parliament. Some judges, loyal to the King, would lay heavy fines against his enemies and then jail them for nonpayment. The courts also sought to prevent the release of prisoners by setting bail amounts so high that they could not be paid. In response to these various abuses, Parliament added to the Bill of Rights of 1689 the provision: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” These words are almost exactly those eventually adopted in the 8th Amendment.