BAIL, in English common law, the freeing or setting at lib erty of one arrested or imprisoned upon any action, either civil or criminal, on surety taken for his appearance on a certain day and at a place named. The surety is termed bail, because the per son arrested or imprisoned is placed in the custody of those who bind themselves or become bail for his due appearance when required. So he may be re-seized by them (if they suspect that he is about to escape) and surrendered to the court, when they are discharged from further liability. The sureties must be sufficient in the opinion of the court to answer for the sum for which they are bound, and, as a rule, only householders are accepted; an accomplice of the person to be bailed or an infant would not be accepted. Bail is obligatory in all summary cases. It is also obligatory in all misdemeanours, except such as have been placed on the level of felonies, viz., obtaining or attempting to obtain property on false pretences, receiving property so obtained or stolen, perjury or subornation of perjury, concealment of birth, wilful or indecent exposure of the person, riot, assault in pursu ance of a conspiracy to raise wages, assault upon a peace officer in the execution of his duty or upon any one assisting him, neglect or breach of duty as a peace officer, any prosecution of which the costs are payable out of the county or borough rate or fund. In cases of treason, bail can only be granted by a secretary of State or the king's bench division. A person charged with felony is not entitled as of right to be released on bail. The power of admitting a prisoner to bail is judicial and not ministerial, and the exercise of the discretion must not be punitive, the chief consideration be ing the likelihood of the prisoner failing to appear at the trial—cf. Reg. v. Rose (17 Cox. C.C. 717) . This must be gauged from the nature of, and the evidence in support of, the accusation, the posi tion of the accused and the severity of the punishment which his conviction will entail, as well as the independence of the sureties. The Bail Act 1898 gives a magistrate power, where a person is charged with felony or certain misdemeanours, or where he is committed for trial for any indictable offence, to dispense with sureties, if in his opinion the so dispensing will not tend to defeat the ends of justice. A surety may be examined on oath as to his means, while the court may also require notice to be given to the plaintiff, prosecutor or police. A person who has been taken into custody for an offence, not apparently of a serious nature, with out a warrant, and cannot be brought before a court of summary jurisdiction within 24 hours, may be admitted to bail by a police officer of superior rank or the officer in charge of the police sta tion; and this can be done while inquiries are being made (Crimi nal Justice Acts, 1914 and 1925). An appeal against a refusal to grant bail lies to the king's bench division, and the court of trial has power to grant bail when necessary.
As to bail for an arrested ship, see ADMIRALTY JURISDICTION.
(W. DE B. H.) United States.—I. In civil cases, the right of the person arrested on mesne process to be admitted to bail is absolute. The amount of the bail, unless otherwise fixed by statute, generally depends upon the amount of the civil liability claimed to be enforced, although the court has some discretion to reduce or increase it. The bond, undertaking or recognizance runs to the arresting officer, generally the sheriff, or to the plaintiff creditor, as required by the statute of the particular jurisdiction. Sureties, if individuals, may generally be either householder or freeholder, or may be a surety company.
2. In criminal cases the right to bail, and to that in an amount not to be excessive, is guaranteed by constitutional provisions except in capital cases. In capital cases, bail may be allowed in the discretion of the court, dependent on the circumstances of the case and nature and degree of proof of the offence available. The court having jurisdiction over the trial of the offence has jurisdiction to admit to bail. The form of the bail bond or recog nizance is generally fixed by statute. The amount, except that it must not be excessive, is in the sound discretion of the court. The sureties must generally be freeholders or a surety company. The sureties may surrender the prisoner if they deem their risk doubt ful. If the prisoner fails to appear upon the date set by the court, bail is forfeited and the State may enforce the collection of the amount of the bail against the property of the sureties. (B. RE.)