bailium, (from the French bailier, which comes of the Greek βαλλειν, and signifies to deliver into hands), is used in our common law for the freeing or setting at liberty of one arrested or imprisoned upon any action, either civil or criminal, on surety taken for his appearance at a day and place certain.
The reason why it is called bail, is because by this means the party restrained is delivered into the hands of those that bind themselves for his forthcoming, in order to a safe keeping or protection from prison; and the end of bail is to satisfy the condemnation and costs, or render the defendant to prison.
With respect to bail in civil cases, it is to be observed, that there is both common and special bail. Common bail is in actions of small concernment, being called common, because any sureties in that case are taken; whereas in causes of greater weight, as actions upon bonds, or speciality, &c. where the debt amounts to 10l. special bail or surety must be taken, such as subsidy men at least, and they according to the value.
The commitment of a person being only for safe custody, wherever bail will answer the same intention, it ought to be taken; as in most of the inferior crimes: but in felonies and other offences of a capital nature, no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit to save his own life? and what satisfaction or indemnity is it to the public, to seize the effects of them who have bailed a murderer, if the murderer himself be suffered to escape with impunity? Upon a principle similar to which, the Athenian magistrates, when they took a solemn oath never to keep a citizen in bonds that could give three sureties of the same quality with himself, did it with an exception to such as had embezzled the public money, or been guilty of treasonable practices.
Bail may be taken either in court, or, in some particular cases, by the sheriff or other magistrate; but most usually by the justices of the peace. To refuse or delay to bail any person bailable, is an offence against the liberty of the subject, in any magistrate, by the common law; as well as by the statute Westm. i. 3 Edw. I. c. 15, and the habeas corpus act, 31 Car. II. c. 2. And, left the intention of the law should be frustrated by the justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by statute W. & M. ii. 2. c. 1. that excessive bail ought not to be required; though what bail shall be called excessive, must be left to the courts, on considering the circumstances of the case to determine. And on the other hand, if the magistrate takes insufficient bail he is liable to be fined, if the criminal doth not appear.
In civil cases, every defendant is bailable. But it is otherwise in
Criminal matters. Regularly, all offences, either against the common law or act of parliament, that are below felony, the offender ought to be admitted to bail, unless it be prohibited by some special act of parliament.—By the ancient common law, before and since the conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail almost in every case. But the statute West. i. 3 Ed. I. c. 15, takes away the power of bailing in treason, and in divers instances of felony. The statutes 23 Hen. VI. c. 9, and i and 2 Ph. & Mar. c. 13, gave farther regulations in this matter; and upon the whole we may collect, that no justices of the peace can bail, 1. Upon an accusation of treason; nor, 2. Of murder; nor 3. In case of manslaughter, if the prisoner be clearly the slayer, and not barely suspected to be so; or if any indictment be found against him; nor 4. Such as, being committed for felony, have broken prison; because it not only carries a presumption of guilt, but is also superadding one felony to another: 5. Persons outlawed; 6. Such as have abjured the realm; 7. Persons taken with the maincure, or in the fact of felony; 8. Persons charged with Arson; 9. Excommunicated persons, taken by writ de excommunicato capitio; all which are clearly not admissible to bail by the justices. Others are of a dubious nature, as, 10. Thieves openly defamed and known; 11. Persons charged with other felonies, or manifest and enormous offences, not being of good fame; and, 12. Accessories to felony, that labour under the same want of reputation. These seem to be in the discretion of the justices, whether bailable or not. The last class are such as must be bailed upon offering sufficient surety; as, 13. Persons of good fame, charged with a bare suspicion of manslaughter, or another infamous homicide; 14. Such persons being charged with petit larceny or any felony, not before specified; or, 16. With being accessory to any felony. Lastly, it is agreed, that the court of king's bench (or any judge thereof in time of vacation) may bail for any crime whatsoever, be it treason, murder, or any other offence, according to the circumstances of the case. And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes, would greatly tend to elude the public justice; and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discretionary power of bailing in any case: except only, even to this high jurisdiction, and of course to all inferior ones, such persons as are committed by either house of parliament, so long as the session lasts; or such as are committed for contempts by any of the kings superior courts of justice. See Law, Part III. No xxxvi. 42.
Clerk of the Bails, is an officer belonging to the court of the King's Bench: he files the bail-pieces taken in that court, and attends for that purpose.
Bale, in the sea-language. The seamen call throwing the water by hand out of the ships or boats hold, bailling. They also call those hoops that bear up the tilt of a boat, its bails.