BAIL - The money a defendant pays
as a guarantee that he or she will show up in court
at a later date. For most serious crimes a judge or
magistrate sets bail during an arraignment, or in
federal court at a detention hearing.
By bail is understood sureties, given according to
law, to insure the appearance of a party in court.
The persons who become surety are called bail. Sometimes
the term is applied, with a want of exactness, to
the security given by a defendant, in order to obtain
a stay of execution, after judgment, in civil cases.,
Bail is either civil or criminal.
Civil bail is that which is entered in civil cases,
and is common or special bail below or bail above.
Common bail is a formal entry of fictitious sureties
in the proper office of the court, which is called
filing. common bail to the action. It is in the same
form as special bail, but differs from it in this,
that the sureties are merely fictitious, as John Doe
and Richard Roe: it has, consequently, none of, the
incidents of special bail. It is allowed to the defendant
only when he has been discharged from arrest without
bail, and it is necessary in such cases to perfect
the appearance of the defendant.
Special bail is an undertaking by one or more persons
for another, before some officer or court properly
authorized for that purpose, that he shall appear
at a certain time and place, to answer a certain charge
to be exhibited against him. The essential qualification
to enable a person to become bail, are that he must
be, 1. a freeholder or housekeeper; 2. liable to the
ordinary process of the court 3. capable of entering
into a contract; and 4. able to pay the amount for
which he becomes responsible.
He must be a freeholder or housekeeper.
He must be subject to the ordinary process of the
court; and a person privileged from arrest, either
permanently or temporarily, will not be taken.
He must be competent to enter into a contract; a
feme covert, an infant, or a person non compos mentis,
cannot therefore become bail.
He must be able to pay the amount for which he becomes
responsible. But it is immaterial whether his property
consists of real or personal estate, provided it be
his own, in his own right; and be liable to the ordinary
process of the law; though this rule is not invariably
adhered to, for when part of the property consisted
of a ship, shortly expected, bail was permitted to
justify in respect of such property.
Bail below. This is bail given to the sheriff in
civil cases, when the defendant is arrested on bailable
process; which is done by giving him a bail bond;
it is so called to distinguish it from bail above.
The sheriff is bound to admit a man to bail, provided
good and sufficient sureties be tendered, but not
otherwise. The sheriff, is not, however, bound-to
demand bail, and may, at his risk, permit the defendant
to be at liberty, provided he will appear, that is,
enter bail above, or surrender himself in proper time.
The undertaking of bail below is, that the defendant
will appear or put in bail to the action on the return
day of the writ.
Bail above, is putting in bail to the action, which
is an appearance of the defendant. Bail above are
bound either to satisfy the plaintiff his debt and
costs, or to surrender the defendant into custody,
provided judgment should be against him and he should
fail to do so.
It is a general rule that the defendant having been
held to bail, in civil cases, cannot be held a second
time for the same cause of action.
Bail in criminal cases is defined to be a delivery
or bailment of a person to sureties, upon their giving,
together with himself, sufficient security for his
appearance, he being supposed to be in their friendly
custody, instead of going to prison.
The Constitution of the United States directs that
"excessive bail shall not be required."
Amend. art. 8.
By the acts of congress of September, 24, 1789, s.
33, and March 2, 1793, s. 4, authority is given to
take bail for any crime or offence against the United
States, except where the punishment is death, to any
justice or judge of the United States, or to any chancellor,
judge of the supreme or superior court, or first judge
of any court of common pleas, or mayor of any city
of any state, or to any justice of the peace or other
magistrate of any state, where the offender may be
found the recognizance tal,-en by any of the persons
authorized, is to be returned to the court having
cognizance of the offence.
When the punishment by the laws of the United States
is death, bail can be taken only by the supreme or
circuit court, or by a judge of the district court
of the United States. If the person committed by a
justice of the supreme court, or by the judge of a
district court, for an offence not punishable with
death, shall, after commitment, offer bail, any judge
of the supreme or superior court of law, of any state,
(there being no judge of the United States in the
district to take such bail,) way admit such person
to bail.
Justices of the peace have in general power to take
bail of persons accused; and, when they have such
authority they are required to take such bail There
are many cases, however, under the laws of the several
states, as well as under the laws of the United States,,
as above mentioned, where justices of the peace cannot
take bail, but must commit; and, if the accused offers
bail, it must be taken by a judge or other, officer
lawfully authorized.
In Pennsylvania, for example, in cases of murder,
or when the defendant is charged with the stealing
of any horse, mare, or gelding, on the direct testimony
of one witness; or shall be taken having possession
of such horse, mare, or gelding, a justice of the
peace cannot admit the party to bail.
In all cases where the party is admitted to bail,
the recognizance is to be returned to the court having
jurisdiction of the offence charged.
