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Bail laws in the United States grew out of a long history of English statutes and policies. During the colonial period, Americans relied on the bail structure that had developed in England hundreds of years earlier. When the colonists declared independence in 1776, they no longer relied on English law, but formulated their own policies which closely paralleled the English tradition. The ties between the institution of bail in the United States is also based on the old English system. In attempting to understand the meaning of the American constitutional bail provisions and how they were intended to supplement a larger statutory bail structure, knowledge of the English system and how it developed until the time of American independence is essential. In medieval England, methods to insure the accused would appear for trial began as early as criminal trials themselves. Until the 13th century, however, the conditions under which a defendant could be detained before trial or released with guarantees that he would return were dictated by the local Sheriffs.x As the regional representative of the crown, the sheriff possessed sovereign authority to release or hold suspects. The sheriffs, in other words, could use any standard and weigh any factor in determining whether to admit a suspect to bail. This broad authority was not always judiciously administered. Some sheriffs exploited the bail system for their own gain. Accordingly, the absence of limits on the power of the sheriffs was stated as a major grievance leading to the Statute of Westminster.xi The Statute of Westminster in 1275 eliminated the discretion of sheriffs with respect to which crimes would be bailable. Under the Statute, the bailable and non-bailable offenses were specifically listed.xii The sheriffs retained the authority to decide the amount of bail and to weigh all relevant factors to arrive at that amount. The Statute, however, was far from a universal right to bail. Not only were some offenses explicitly excluded from bail, but the statutes' restrictions were confined to the abuses of the sheriffs. The justices of the realm were exempt from its provisions. Applicability of the statute to the judges was the key issue several centuries later when bail law underwent its next major change. In the early seventeenth century, King Charles I received no funds from the Parliament. Therefore, he forced some noblemen to issue him loans. Those who refused to lend the sovereign money were imprisoned without bail. Five incarcerated knights filed a habeas corpus petition arguing that they could not be held indefinitely without trial or bail. The King would neither bail the prisoners nor inform them of any charges against them. The King's reason for keeping the charges secret were evident: the charges were illegal; the knights had no obligation to lend to the King. When the case was brought before the court, counsel for the knights argued that without a trial or conviction, the petitioners were being detained solely on the basis of an unsubstantiated and unstated accusation. Attorney General Heath contended that the King could best balance the interests of individual liberty against the interests of state security when exercising his sovereign authority to imprison. The court upheld this sovereign prerogative argument.xiii Parliament responded to the King's action and the court's ruling with the Petition of Right of 1628. The Petition protested that contrary to the Magna Carta and other laws guaranteeing that no man be imprisoned without due process of law, the King had recently imprisoned people before trial "without any cause showed." The Petition concluded that "no freeman, in any manner as before mentioned, be imprisoned or detained..." The act guaranteed, therefore, that man could not be held before trial on the basis of an unspecific accusation. This did not, however, provide an absolute right to bail. The offenses enumerated in the Statute of Westminster remained bailable and non-bailable. Therefore, an individual charged with a non-bailable offense could not contend that he had a legal entitlement to bail. The King, the courts and the sheriffs were able to frustrate the intent of the Petition of Right through procedural delays in granting the writs of habeas corpus. In 1676, for example, when Francis Jenkes sought a writ of habeas corpus concerning his imprisonment for the vague charge of "sedition," it was denied at first because the court was "outside term," and later because the case was not calendared; furthermore, when the court was requested to calendar the case it refused to do so. In response to the rampant procedural delays in providing habeas corpus as evidenced by Jenkes Case,xv Parliament passed the Habeas Corpus Act of 1677. The act strengthened the guarantee of habeas corpus by specifying that a magistrate: shall discharge the said Prisoner from his Imprisonment taking his or their Recognizance, with one or more Surety or Sureties, in any Sum according to their discretion, having regard to the Quality of the Prisoner and Nature of the offense, for his or their Appearance in the Court of the King's bench...unless it shall appear...that the Party (is)...committed...for such Matter or offenses for which by law the Prisoner is not Bailable.xvi By requiring early designation of the cause for arrest, the Habeas Corpus Act provided a suspect with knowledge that the alleged offense was either bailable or not. The Statute of Westminster remained the primary definition of what offenses would be eligible for bail. Although the Habeas Corpus Act improved administration of bail laws, it provided no protection against excessive bail requirements. Even if a suspect was accused of a bailable offense and therefore was entitled to some bail, he could still be detained if the financial condition of release was exorbitantly high. As evidence of this abuse reached Parliament, it responded with the English bill of Rights of 1689. In the Preamble, the bill accused the King of attempting "to subvert...the laws and liberties of the kingdom: in the "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the Subjects."xvii The Bill of Rights proposed to remedy the situation by declaring "that excessive bail ought not to be required."xviii Thus, the precursor of the Eighth Amendment in the U.S. Constitution was drafted to prevent those accused of bailable offenses from unreasonable bail requirements. It did not alter the categories of bailable crimes found in the separate Statute of Westminster and certainly did not guarantee a right to bail. The language of the English Bill of Rights was only one part of the bail system developed through many years of English law. As Caleb Foote has explained and this analysis recounts, English protection against unjustifiable detention contained three essential elements: first, offenses were categorized as bailable or not bailable by statutes beginning with Westminster I which also placed limits on which judges and officials could effect the statue; second, habeas corpus procedures were developed as an effective curb on imprisonment without specific changes; and third, the excessive bail clause of the 1689 Bill of Rights protected against judicial officers who might abuse bail policy by setting excessive financial conditions for release. English law never contained an absolute right to bail. Bail could always be denied when the legislature determined certain offenses were unbailable. Most of the history of bail law after Westminster I was an attempt to improve the efficiency of existing law and especially to grant the suspect a meaningful chance to satisfy bail conditions when he had committed those offenses that the legislature had declared bailable. In colonial America, bail law was patterned after the English law. While some colonies initiated their own laws which were very similar to English statutes, others simply guaranteed their subjects the same protections guaranteed to British citizens. When the colonies became independent in 1776, however, they could no longer simply insure the protections of English law. Accordingly, the colonies enacted specific bail laws. Typical of the early American bail laws were those enacted in Virginia perpetuating the bail system as it had evolved in England. Section 9 of Virginia's Constitution in 1776 declared simply that "excessive bail ought not to be required

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