Vanderbilt Law Review

First Page



The origin of the institution of bail is not entirely known, but it is believed to have originated in medieval England as a device to free untried prisoners. The definitive structure of the process seems to have been first codified in 1275 in the Statute of Westminster. The institution developed gradually and eventually became so well established that the English Bill of Rights of 1688 provided that "excessive bail ought not to be required."' The factors contributing to the development of the institution of bail were primarily matters of practical importance. Disease-ridden jails, delayed trials by traveling justices, and insecure prisons led the ancient sheriffs, into whose custody the accused was given, to allow the accused to be "bailed" to his friends or family. The "bailment" was conditioned upon the promise of the third party that the accused would be present on the trial date. If the defendant escaped, the third party surety was required to surrender himself to the court in place of the accused. With the passage of time, sureties, who were usually required to be land owners, were permitted to forfeit promised sums of money or real estate instead of themselves in the event the accused failed to appear for trial. The benefits resulting from this ancient practice were two fold: first, the accused was allowed personal freedom until found guilty of a crime; and second, the state was saved the expense incident to incarceration. The relationship between the accused and his surety remains a personal one in England today. Yet the discretionary manner in which the English courts consider the institution of bail permits denial of bail in cases where the magistrate believes that the defendant is likely to tamper with the evidence or commit new offenses if released.