For digital images of the original records used in this Article and further information about bail in the Founding Era, please visit bailatthefounding.net.
Figure 1: Walnut Street Jail, Philadelphia, circa 17891
Introduction
How did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing legislative, political, judicial, and academic attention. After a generation of policy stagnation and academic silence, bail is back on the agenda. The tragic deaths of Kalief Browder2 and Sandra Bland3 jolted the nation into awareness of the fact that millions of people are incarcerated annually for inability to post cash bail.4 In the wake of that realization, bipartisan energy galvanized reform through legislation, court rules, civil rights litigation, and local advocacy in jurisdictions across the nation.5 The reforms, in turn, provoked a backlash.6 Now the bail reform movement is at a crossroads. It remains to be seen whether this generation of reform will remake the nation’s pretrial system or whether, like prior waves of bail reform, it will recede without dislodging the core apparatus of cash bail.7
The future of American bail may depend partly on its past. In the courts, civil rights bail litigation hinges on questions of federal and state constitutional interpretation.8 When is bail “excessive” within the meaning of federal and state excessive-bail clauses?9 Many state constitutions codify a right to pretrial release on “sufficient sureties” — but what are those?10 Are any aspects of bail practice so “deeply rooted in this Nation’s history and traditions” that they implicate fundamental rights deserving of heightened due process protection?11 These questions of constitutional interpretation are currently percolating through the courts.12 Their resolution will require some understanding of bail law and practice through time, and particularly at the time when the relevant provisions were enacted.13 Even setting legal questions aside, history is important to the policy debate; it helps to explain the system we have and expand our sense of what is possible.
To date, however, there has been no thorough account of bail at the Founding.14 Part of the explanation is the paucity of relevant records from the era. Then, as now, bail determinations were made by magistrates in less formal settings than the criminal trial that followed. They were not well documented in official records. Another part of the explanation is that, until recently, bail process attracted little scholarly interest.15
This Article aspires to correct the deficit in our collective memory. Its goal is to describe bail law and practice in the Founding era, from approximately 1790 to 1810, and along the way to tackle a set of related questions: Was pretrial detention a “carefully limited exception” in the Early Republic?16 If so, what were the legal limits? What were constitutional excessive-bail and right-to-bail clauses understood to mean? What role did money play in the Founding-era bail system? And finally, which elements of the current pretrial system are “deeply rooted in this Nation’s history and tradition”17 in the sense of having been established or enshrined in the Founding era?
To answer these questions we have read and distilled Founding-era statutes, case law, legal treatises, and manuals for justices of the peace, as well as secondary literature on Founding-era criminal procedure. With the help of a research team, we also located, digitized, transcribed, and analyzed original Founding-era court and justice-of-the-peace records from archives and private collections. We created full transcriptions of the Record Book of Ebenezer Ferguson, a Philadelphia justice of the peace, and of the Prisoners for Trial Docket from 1790 to 1800 — the original record of every pretrial detainee held in the famous Walnut Street Prison in Philadelphia during those years. We have also digitized a range of original records for the first time, including early records from the Philadelphia Mayor’s Court and Court of Quarter Sessions, the Philadelphia Vagrancy Docket, and the early records of the Pennsylvania Prison Society. To illustrate our findings and to promote future research, we make these resources available online.18
The project centers on Philadelphia for several reasons. First, Philadelphia was the birthplace of what would become the distinctively American law of bail and pretrial detention. Pennsylvania’s founder, William Penn, had been scarred by repeated jailing in England for his Quakerism, and consequently included a broad right to pretrial bail in Pennsylvania’s 1682 Frame of Government.19 That right-to-bail clause would become the “consensus text” for bail clauses in new state constitutions as the nation grew, as well as the model for the Federal Judiciary Act of 1789.20 Second, Philadelphia is an optimal site to assess daily bail practice in the Founding era. It served as the nation’s capital from 1790 to 1800 and was also a busy port and commercial center, the destination of waves of immigrants from across the Atlantic and of freed and runaway slaves from the South.21 As “the premier city” of the new republic,22 it had relatively well-developed court and recordkeeping systems, and many of those records have endured.23 Our research suggests that bail practice in Philadelphia was fairly representative of practice in other states, including Massachusetts, New York, Georgia, and South Carolina.24
The historical inquiry illuminates three key facts. First, the black-letter law of bail in the Founding era was highly protective of pretrial liberty. In theory, Penn’s uniquely American framework for bail guaranteed release for nearly all accused persons.25 Second, things were different on the ground. The primary sources reveal that, for those who lived on the margins of society, bail practice bore little resemblance to the law on the books, and pretrial detention was routine.26 The third key point cuts across the law and reality of criminal bail: both in theory and in practice, the bail system was a system of unsecured pledges, not cash deposits.27 It operated on the basis of reputational capital, not financial capital. This Article lays out these findings and explores their contemporary implications in three Parts.
Part I chronicles the evolution of the distinctively American law of bail, which aspired to limit pretrial detention to a subset of capital cases. It briefly surveys the early origins of bail in English common law, then describes two competing legal models of bail that emerged in America. The first, which we call “the common law model,” hewed closely to English precedent.28 The second, “the dissenter model,” grew out of the efforts of Nathaniel Ward (in Massachusetts) and William Penn to constrain the state’s power to incarcerate its subjects upon mere judicial whim and ultimately became the dominant legal framework for bail in the United States.29
In both models, “bail” referred to a mechanism of release from state custody. That mechanism did not involve any upfront cash deposit or other transfer of collateral. Rather, the accused person promised to appear for trial and pledged that, if he did not appear, he would forfeit a specified sum.30 Each defendant also had to produce one or two “sureties.”31 A surety was an individual — typically a family member, friend, or employer — who also pledged to forfeit a specified sum if the defendant failed to appear. The pledges by the defendant and his sureties, called “recognizances” or “recognizance bonds,” were the “security” offered for the defendant’s appearance.32 They were promises only; they were not themselves secured by any transfer of collateral or legal right (like a lien). In today’s parlance, the pledges were “unsecured bonds,” such that the entire bail system — as contemplated by the law on the books — was a system of unsecured release.33
The difference between the common law and dissenter models lay in who had access to bail. The common law model prohibited release on bail for people charged with certain serious offenses, guaranteed release on bail for people charged with a tiny sliver of very petty offenses, and left it to the magistrate’s discretion whether to bail or detain defendants the rest of the time.34 The dissenter model, by contrast, mandated access to bail for nearly everyone, leaving magistrates the discretion to detain only in capital cases (which were limited to first-degree murder cases in Pennsylvania at the time Penn crafted the dissenter framework).35 When bail was mandatory, as it almost always was on the dissenter model, the law on the books required that the pledge amount be one that the defendant and his sureties could pay if need be. On the dissenter model, in sum, pretrial liberty was precious, nearly all accused people had a right to release on bail, and bail was carefully calibrated to a defendant’s financial circumstances.
Part II turns from the legal framework on the books to the legal practices on the ground. Section II.A notes that criminal bail bonds were only a tiny sliver of a much larger landscape of bonded suretyship in the Early Republic and should be understood in this context. Section II.B documents daily bail practice in Founding-era Philadelphia. Drawing on the primary sources, we reconstruct the process by which people were haled before city magistrates and either bailed or jailed pending trial.
Bail practice on the ground diverged sharply from the law on the books.36 Almost every facet of our current bail system that has drawn public ire finds its echo in Founding-era practice in Philadelphia. Pretrial process was a two-tiered system of justice; the indigent were frequently jailed for failure to produce sureties, or on a summary conviction for vagrancy. Constables and magistrates abused their power and operated a fines-and-fees system that functioned to incarcerate the poor. Conditions of detention were abysmal. There were also persistent criticisms of these facts and impassioned efforts at reform, including the equivalent of a modern-day community bail fund.
But for those not on the margins, which we estimate included upwards of eighty percent of the population in jurisdictions like Philadelphia, the dissenters’ clause worked largely as intended, protecting an absolute right to release on an affordable bond pledge for all but the most serious charges. Indeed, when the law faltered in practice for first-class defendants, it was usually to their benefit, as forfeited bonds were rarely collected. We illustrate these dynamics in section II.C with the extraordinary — but nevertheless representative — prosecution of Aaron Burr at the close of the Founding era. The central drama of the early stages of Burr’s prosecution was over bail, and none other than Chief Justice John Marshall, riding circuit, presided. Chief Justice Marshall consistently hewed closely to the text of the dissenters’ bail clause, and Burr was set at liberty on an affordable bail despite his low chance of reappearance.
The Article’s third theme emerges across our survey of both the theory and practice of bail. In all of the material we canvas, there is no indication that any accused person or surety was ever required to produce cash or other collateral as a condition for the accused person’s release.37 This is not to say that money played no role in the system. Defendants, sureties, alleged victims, and witnesses all had to sign recognizance bonds with a specified money amount on their face. People without financial means could be jailed if they lacked access to sureties, and lacking sureties and lacking money often went hand in hand. The magistrates, constables, and sheriff depended for their income on fees paid by all parties to a proceeding, as well as on fines assessed as punishment, and failure to pay any of these was grounds for incarceration. By contrast, the failure to pay bail was not grounds for incarceration. Indeed, the expression “pay bail” never appears in the records because bail was not a financial transaction. The system operated on a currency of reputation rather than cash.
To complete the Article’s descriptive work, section II.D recounts how Founding-era appellate courts mediated between the theory and practice of bail — that is, how they understood and enforced legal limits on pretrial detention. The available case law is sparse, but it allows for a few conclusions. Appellate judges, including Chief Justice Marshall, took it for granted that “excessive bail” prohibitions required bail demands to be tailored to a person’s means.38 Relatedly, it was perceived as an outrage when respectable citizens were detained pretrial because of a bail demand their sureties could not meet. For such persons, there were legal mechanisms for redress, including habeas review and subsequent civil suits. As a whole, the Founding-era jurisprudence of bail supports the picture of a two-tier, reputation-based system that emerges from the survey of the law on the books and on the ground.
Part III considers the contemporary implications of the Founding-era picture. The most straightforward is that there is no ancient tradition of cash bail. To the extent that some courts and advocates have recently asserted or suggested that cash bail is a time-honored American tradition dating to the Founding era, they are simply wrong. The historical data also take certain propositions favored by bail reformers off the table. These include the notion that the right to bail codified in state constitutions functioned as an absolute right to release, as well as the proposition that the law did not recognize public safety as a legitimate consideration in bail and detention decisions until the 1970s. These too are foreclosed by the record.
Beyond these points, the contemporary implications of the historical picture are uncertain. On the one hand, Penn’s dissenter framework for bail, and its adoption across the Early Republic, demonstrates a distinctively American tradition of strict protection for pretrial liberty — a tradition that Chief Justice Marshall helped to enshrine in his handling of Burr’s pretrial custody disputes, and that operated well in practice for those with a minimal amount of social capital. On the other hand, those protections were illusory for all who lived outside local networks of respectability. One might well conclude that the clearest American tradition that the Founding-era law and practice of bail discloses is a tradition of unrealized legal ideals. Just as the present moment does, the Founding era juxtaposed lofty legal commitments to liberty with social policy heavily dependent on custody and incarceration. Just as in the present, that contrast was a source of indignation and conflict. The Article does not marshal this complex historical data to argue for specific answers to the thorniest open questions of constitutional law. We hope, instead, to provide the historical clarity necessary to tackle those questions with integrity.
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* Professor, Columbia Law School.
** Professor, University of Pennsylvania Carey Law School. We are grateful to the staff of the Philadelphia City Archives, especially Joshua Blay, and to the South Carolina Department of Archives and History for facilitating our access to primary sources. This Article would not have been possible without Penn Law librarian extraordinaire Paul Riermaier and the dedication of the wonderful research assistants who worked on it over the last three years: Jacob Burnett, Domenic Canonico, Jasmine Carter, Anu Chugh, Caitlin Conway, Nikita Ganesh, Alex Geisel, Chase Hanson, Aria Hejazi, Xin Huang, Katie Miklus, Jennifer Morton, Thomas Munson, Meagan Murray, Matt Nelson, Sean Ross, Sara Schuster, Michael Sise, Douglas Snyder, AJ Spindler, and Hayden Stephens. We are grateful to historians Jonathon Booth, Kristin O’Brassill-Kulfan, and Billy Smith for sharing their expertise (and some source material!); to Paul Heaton and Daniel Hinze for early consulting on data analytics; and to those who provided incisive comments on drafts: Amna Akbar, Paulina Arnold, Will Baude, Stephanos Bibas, Maron Deering, Malcolm Feeley, Sally Gordon, Craig T. Green, Dirk Hartog, Anna Lvovsky, Sara Mayeux, Danny Richman, Laurent Sacharoff, Sarah A. Seo, Megan Stevenson, and participants in workshops at Penn Carey Law, Columbia Law School, CrimFest, the American Society for Legal History, the University of Michigan Law School, Wayne State University Law School, the University of Virginia School of Law, and Cornell Law School. Special thanks are due to Tim Schnacke, whose work has galvanized current interest and research into historical bail practice. Finally, we deeply appreciate the rigorous work of the editors of the Harvard Law Review, who joined in deciphering handwritten tomes from the archives, improved our work, and managed the complex process of publication.