The question remains, however: did the American Founders interpret the “excessive bail” clause in the same way as their English forebears? Many legal experts, such as Justice Reed, who delivered the Court’s opinion in Carlson v. Landon (1952), have believed that they did: “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.” In other words, the provision is a limitation on the judges’ discretion to set bail; it is not a restraint on legislative authority.
Others, however, have looked at evidence that shows that oftentimes the legislatures of our early republic were limited in ways that the English Parliament was not in this matter. The 1641 Massachusetts Body of Liberties, for instance, guaranteed bail to every suspect except those accused of a capital crime or contempt of court. Several state constitutions likewise included a provision that “all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or presumption great.” Those state provisions were also copied into contemporaneous federal documents, such as the Northwest Ordinance of 1787 and the Judiciary Act of 1789.
These “bailable” provisions did not limit the amount of bail that can be set by judges; rather, they limited the power of Congress to define the types of crimes that can be denied bail. Nonetheless, the very fact that the “bailable” clause was always a separate provision—one that was not included in many state constitutions that had an “excessive bail” clause nor in the Bill of Rights—seems to suggest that the two concepts cannot be conflated. As the wording of the 1780 Massachusetts Declaration of Rights makes plain, the “excessive bail” clause was not intended as a limitation on the legislature: “No magistrate or court of law shall demand excessive bail or sureties.”