2. Possible release on Bail, on promise to make next appearance:

     This page is continued from Criminal Proceedings:


n. (15c)

1. A security such as cash, a bond, or property; especially security required by a court for the release of a criminal defendant who must appear in court at a future time <bail is set at $500>.  Cf. RECOGNIZANCE.

  • cash bail (1892) 1. A sum of money (as opposed to a surety bond) posted to secure a criminal defendant’s release from jail. — aka stationhouse bail.

2. The process by which a person is released from custody either on a the undertaking of surety or on his or her own recognizance.

3. Release of a criminal defendant on security for a future court appearance, especially, the delivery of a person in custody to a surety <the court refused bail for the accused serial killer>.

4. One or more sureties for a criminal defendant <the attorney stood as bail for her client>.  See BAILER (1). [1]

1. The means of procuring the release from custody of a person charged with a criminal offense or with debt by assuring his future appearance in court and compelling him to remain within the jurisdiction. Manning v State, 190 Okla 65, 120 P2d 980.

The security given for a defendant’s appearance in court in cash, bond, or undertaking. Sawyer v Barbour, 142 Cal App 2d 827, 300 P2d 187.

The surety on a bail bond. [2]

1. The customary means of securing the release from custody of a person charged with a criminal offense, by assuring his appearance in court and compelling him to remain within the jurisdiction.

2. The security given for a defendant’s appearance in court in the form of cash, real property, or a bail bond.

3. The person who is the surety on a bail bond. [3]

     Excerpt from C.J.S. Bail § 2 (1988):

     “As a noun, and in its strict sense, bail is the person in whose custody the defendant is placed when released from jail, and who acts as surety for the defendant’s later appearance in court….  The term is also used to refer to the undertaking by the surety, into whose custody defendant is placed, that he will produce defendant in court at a stated time and place.[4]

v. (16c)

1. To obtain release of (oneself or another) by providing security for a future appearance in court <his parents bailed him out of jail>.

2. To release (a person) after receiving such security <the court bailed the prisoner>.

1. To deliver from custody on the security of bail. 8 Am J2d Bail § 1. [2]

1. To secure the release from custody of a person charged with a  crime, pending trial, by posting a bail bond. [3]

bail bond – a bond given to a court by a criminal defendant’s surety to guarantee the defendant will duly appear in court and, if the defendant is jailed, to obtain the defendant’s release from confinement.

Historical Context:

excessive bail (17c) Bail that is unreasonably high considering the risk that the accused will not appear for trial.  *  The Eight Amendment prohibits excessive bail.

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

     Historical context on the Eighth Amendment, from The Constitution of The United States; Its Sources and Its Applications by Thomas James Norton (1946):

    Excessive bail shall not be required:

     Long imprisonments which had been made possible by excessive bail and the prevention of trials had so offended the English people that when William III and Mary ascended the throne they were required in the Declaration of Rights to assent to a provision substantially like this clause in our Constitution.  As far back as the reign of Henry VI (1444) there was an act of Parliament requiring sheriffs and other officers to ‘let out of prison all manner of persons upon reasonable sureties of sufficient persons.’  A reasonable bail is one large enough to prevent evasion of law by night and still not beyond the means oi the prisoner.  In 1835 bail of $1 ,000 was fixed by a court for a man who had shot at President Andrew Jackson, but missed him.  The court thought the amount sufficient because the offense did not call for imprisonment, no battery had been done, and the defendant had no property.  The court said that to require a greater bail than the prisoner could give in such a case would be excessive within the meaning of the Constitution.

nor excessive fines imposed:

     The excessive fine under Magna Charta was the penalty or forfeiture which deprived a man of his “contenememt” — of his living or ability to pursue his calling or his business.  In Magna Charta it was declared that ‘a free man shall not be amerced for a small offense, but only to the degree of the offense; and for a great delinquency, according to the magnitude of the delinquency, saving his contenement.’  Construing a similar provision in a State constitution, the Supreme Court held void an act of the legislature levying a penalty of not less than $100 nor more than $500 upon any druggist selling liquors contrary to law, and imprisonment of not less than ninety days not more than one year, or both, with debarring from business for five years for a repeated offense.  As the druggist would be cut off from his livelihood for five years, the punishment was excessive.  The Supreme Court of the United States held void (1907) an act of the legislature of a State imposing such heavy and cumulative fines upon railway companies and their agents for failure to observe the freight rates and and passenger fares prescribed by the State that the persons convicted were by fear prevented from resorting to the courts to determine their rights or to test the validity of the law.  The heavy fines imposed by the State (which could not be condemned as fines under this limitation upon National power) resulted in a denial of due process of law, which by the Fourteenth Amendment the State is forbidden to deny.

     In 1909 the Supreme Court sustained a judgment for has and penalties rendered under State law aggregating $1, 623, 500 and the cancellation of the defendant’s permit to participate in commerce within the State.  The company, incorporated in another State, was convicted of violating the anti-trust laws of the complaining State.  Fines under one law were permitted as high as $5,000 a day for each day of violation.  The Supreme Court said that the Eighth Amendment, forbidding excessive fines, is not a prohibition upon the State.

nor cruel and unusual punishments inflicted:

     As late as Blackstone’s time (1758) ‘the punishment of high treason in general is very solemn and terrible.’  He says that the guilty person was hanged by the neck and then cut down alive, when he was disemboweled while yet living.  His head was cut off and his body divided into four pats fro disposition by the king.  By an act of Parliament in 1814, a quarter of a century after our Constitution, that punishment was mitigated.

    Hallam gives many instances of cutting off of the ears, of whipping, of standing in the pillory, of slitting the nose, of branding the cheek.  And many of those punishments were followed by ‘perpetual imprisonment.’  But he says that punishments on the Continent were even more severe.

     The protection of this clause is needed now, perhaps not so much as formerly, but it is needed.  In February, 1910, the Supreme Court of Oregon held void an act of the legislature‘ for conflict with a provision of the State’s constitution similar to this of the Eighth Amendment.  An officer of the State who was unable to pay a fine of over $577,000, which was imposed upon him for misapplying State funds, was therefore sentenced under a State law to five years in the penitentiary, and the fine was to be discharged by an additional imprisonment in jail at $2 for each day.  The act was upheld as to the sentence to the penitentiary, but it was declared void as to the jail sentence for ‘not exceeding 288,426 days’, a term of nearly 800 years.  In 1891 the Supreme Court of the  United States held that, as the Eighth Amendment does not apply to States, it could give no relief to a man who had been sentenced to the house of correction in Vermont  for 19,914 days or fifty-four years; for shipping liquor from New York into the first named State . And as late as 1916 the flogging of a convict in North Carolina was held by the Supreme Court of that State to be illegal under the State Constitution, the Chief Justice saying that the record contained ‘unprintable evidence of brutality almost beyond conception.’

     The Bill of Rights of the Philippine Islands forbids the infliction of cruel and unusual punishment, adopting this provision from our Constitution.  The Supreme Court of the United States held (1910) that this safeguard of the citizen was violated where an officer of the government who had been convicted of making false entries in the public records was subjected to a heavy fine, sentenced to imprisonment for fifteen years, and condemned to carry a chain attached at the ankle and hanging from the wrist.  Answering the contention that the cruel and unusual punishments referred to in this clause of our Constitution and in the Bill of Rights of the Philippines are those which were known in the time of the Stuart kings when the American Colonies were being planted, the Supreme Court said that the Ianguage, while used in the light of ‘an experience of evils’, is nevertheless general and is intended to apply to new conditions.  ‘Therefore,’ said the court, ‘a principle to be vital must be capable of wider application than the mischief which gave it birth.  This is peculiarly true of constitutions.’

     The Supreme Court has steadily refused to apply this Amendment as a. prohibition upon State action; and it, therefore, held that punishment by electrocution is within the State power and cannot be considered cruel or unusual under this clause.


Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: C.J.S. Bail § 2 (1988).

[5]: The Constitution of The United States; Its Sources and Its Applications by Thomas James Norton (1946) p. 223-225


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