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1689 Bill of Rights was merely one segment of the English history, and we have already noted that the preamble of this clause makes it abundantly clear that its only purpose was to shore up the enforcement of preexisting rights to bail. The relatively subsidiary importance of the clause in English law is illustrated by Blackstone's relegation of it to a single sentence buried in the middle of a five-page chapter on bail.11

But in June of 1776, less than a month before the proclamation of the Declaration Independence in Philadelphia, the Virginia legislature enacted the famous Virginia Declaration of Rights, and here

for the first time, as clause nine, appeared the language taken from Va.

the English Bill of Rights: "That excessive bail ought not to be re

quired, nor excessive fines imposed, nor cruel and unusual punishments Dec. of Ra

inflicted." With the substitution of "shall not" for "ought not to be," this is the wording of the eighth amendment. Aside from the obvious inference to be drawn from the identity of language, the path from Williamsburg in 1776 to the Congress in 1789 can easily be traced. The Virginia Declaration exercised a magnetic force, and its ninth section was incorporated in the Revolutionary period constitutions of Maryland, Delaware, North Carolina, Georgia and Massachusetts. It was in Virginia, moreover, that one of the most vigorous fights developed in the struggle over ratification of the Constitution. By the time of the Virginia debate the Constitution had been ratified without qualification in six states; three others, Massachusetts, South Carolina and New Hampshire, had coupled ratification with strong recommendations for the adoption of certain amendments as a bill of rights. These did not, however, make any reference to bail. This latter procedure was adopted in Virginia, whose convention recommended a bill of rights closely following the language of their earlier Declaration of Rights, including the excessive bail clause. The subsequent ratifications by New York, North Carolina and Rhode Island included the same recommendation. When Madison rose in the House of Representatives a year later to propose the amendments which became the Bill of Rights he took the excessive bail language exactly as it had been recommended by the Virginia Convention, which in turn had taken it verbatim from the 1776 Declaration.

114 As made available to the colonists in the first American edition of Blackstone, published in Philadelphia in 1772, the sentence reads:

And lest 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 [Bill of Rights, 1689] 1 W. & M. st. 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.

4 BLACKSTONE, COMMENTARIES 294 (1st Am. ed. 1772).

"Excessive

Bail"

Mason

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D. The Role of George Mason

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The man who wrote both the Declaration of Rights in 1776 and the amendments proposed to Congress by the Virginia ratification convention in 1788 was George Mason, one of the unsung heroes of the revolutionary era.115 As the evidence is persuasive that the excessive bail language of the Declaration was carried forward into the Bill of Rights without further thought or analysis after it left Mason's hands, his role is one of critical importance in understanding the original objective of these few words.

There was little about Mason which would have foretold his creative genius in fashioning our constitutional law. Although educated in the library of a lawyer uncle which included a generous share of law books and although he served for many years as a lay justice for Fairfax County, he had no technical training or experience as a lawyer. He was preoccupied with raising nine young children after the death of his wife and with managing a 5,000-acre plantation just down river from Mount Vernon with 500 slaves who not only produced and shipped out tobacco and wheat but also made the plantation almost entirely self-sufficient in such matters as food, liquor, lumber, clothing and shoes. His correspondence was mostly about his immediate concerns: running the plantation, requisitioning supplies and powder for the militia, promoting the development of western land, collecting his debts or getting his debtors thrown in jail, riding to hounds or hunting deer in his private game preserve with his neighbor, George Washington, and protecting the Potomac from marauding robbers or scavenging British naval parties. Throughout his life he shunned public office, and only the most compelling circumstances could dislodge him from these local, family, and plantation responsibilities. The Virginia Convention of June, 1776, was such a circumstance, and it catapulted him into the role of chief architect of fundamental American liberties.

116

Two years before, in 1774, Mason had drafted the Fairfax Resolves," a protest document whose influence can be seen in the Declaration and Resolves of the First Continental Congress later that year. 117 At that time, however, Mason's role was not that of rebel but

115 See 1 ROWLAND, LIFE OF GEORGE MASON 234-50 (1892). A reproduction of Mason's draft is in id. at 240. For the material on Mason I have also drawn upon HILL, GEORGE MASON, CONSTITUTIONALIST (1938) and RUTLAND 30-40.

116 HILL, op. cit. supra note 115, at 112-16.

117 The draft of the Resolves, from a manuscript in Mason's handwriting, are printed in 1 RowLAND, op. cit. supra note 115, at 418-27.

" 120

985

of loyal British subject,118 importuning and pleading in the great tradition which before had produced such monuments as Magna Carta, the Petition of Right delivered to Charles I and the English Bill of Rights of 1688. But when the 1776 Virginia convention met, the die for revolution had been cast-the Declaration of Independence was only four weeks away and the task was to form a new government for the Commonwealth. Mason himself noted that his draft Declaration of Rights was the first document of its kind in American history.'" 119 Nor had it any counterpart in England, whose great charters of liberty were either statutes like the Habeas Corpus Act with "no noble language, just down-to-earth regulations or enactments like Magna Carta and the Bill of Rights, in which specific concessions were obtained from the Crown. Indeed, the form of the English Bill of Rights bears a striking resemblance to the colonial protest documents of 1774, first spelling out grievances and then reaching for solutions. Mason's outlook in 1776, however, was entirely prospective. There was no certain form of future government, no body of existing law and precedent whose incorporation could be assumed, and he described as his objective the creation of a "new government upon a broad foundation" and the provision of "the most effectual securities for the essential rights of human nature, both in civil and religious liberty." 131 The philosophy of Locke and Sidney, some of the finest creations of the 600 year struggle for liberty in England, a strong conviction of the importance of man, and an intense but practical idealism were some of the ingredients that filtered through his mind into the Declaration. It is difficult today, when much of what he wrote has become trite with familiarity, to appreciate the extent of Mason's creative innovation. This is because his selection and phrasing was borrowed by Jefferson for the Declaration of Independence, because the Virginia Declaration became the model for most subsequent state constitutions, and because many of the clauses found their way into the Bill of Rights. But anyone who puts himself into its historical context in reading Mason's Declaration is likely to agree with Jefferson's estimate of Mason as "a man of the first order of wisdom among those who acted on the theatre of the revolution, of expansive mind, profound judgment,

118 "8. Resolved, That it is our greatest wish and inclination, as well as interest, to continue our connexion with, and dependence upon, the British government From the Fairfax Resolves, id. at 421.

119 He may have been unfamiliar with the Massachusetts Body of Liberties of 1641, which in certain respects had a similar purpose. See HASKINS, op. cit. supra note 79, at 36.

120 2 CHAFEE, DOCUMENTS ON FUNDAMENTAL HUMAN RIGHTS 13 (1963). 1211 ROWLAND, op. cit. supra note 115, at 239.

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cogent in argument, learned in the lore of our former constitution, and earnest for the republican change on democratic principles." 123

Why, then, in a document generally so well adapted to its purpose, did Mason deal with the problem of pretrial detention in so incomplete and ambiguous a fashion? In every other operative clause of the Declaration, for example, habeas corpus, jury trial, confrontation, venue, self-incrimination, general searches, the prohibition against governmental action is clearly stated. The defect in his treatment of bail seems most likely to have arisen from Mason's failure to appreciate what I have stressed above: the tripartite nature of the English protection against abusive pretrial detention, involving procedure and the right to bail as well as control of the judicial abuse of excessive bail. This was lawyer's law, and whereas Mason was certainly familiar with the ringing language of the English Bill of Rights, the underlying fundamental bail law was buried in technical jargon. Mason himself recognized his limitations in this respect. When four years later he was appointed to serve on the committee for the revision of Virginia law, he excused himself "as, being no lawyer, he felt himself unqualified for the work." 123

Mason not a lawyer So missed "The three#protection

Mason's mistake, if such it was, was thereafter carried forward with so little discussion that the latent ambiguity of the clause was never noticed. The only reference in the record of congressional debate on the Bill of Rights to the excessive bail clause is the following statement in the House, set out in its entirety:

And elsewhere?)

Why dih

Mr. Livermore.-The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? 124

The speaker then made similarly brief objections to the vagueness of the other clauses of the amendment. This observation could have provoked the kind of debate which would have illuminated the entire question, but instead the record shows only that the amendment was then "agreed to by a considerable majority."

Mason's drafting error might also have been corrected if note had been taken of a curious occurrence in the Continental Congress in 1787. The Northwest Ordinance adopted in that year, as noted

123 Id. at 59.

122 Jefferson, Autobiography, in 1 WRITINGS OF THOMAS JEFFERSON 1, 56 (Ford ed. 1892).

1941 ANNALS OF CONG. 754 (1789-91).

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above, included a guarantee (to "forever remain unaltered unless by common consent") whose language provides an interesting contrast to the eighth amendment:

Article the Second

all persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great; all fines shall be moderate; and no cruel or unusual punishments shall be inflicted . . . .125 The first clause is taken almost verbatim from the Pennsylvania law of 1682, and the rest is adapted from the second part of paragraph 10 of the English Bill of Rights but omits the opening language of that paragraph which proscribes excessive bail. The omission, then, must have been deliberate. This deduction is reinforced by the fact that the draftsman of the Ordinance was Nathan Dane of Massachusetts, who stated that he was guided "mainly, from the laws of Massachusetts.' "126 The Massachusetts constitution of 1780, in turn, had incorporated verbatim the excessive bail clause of Mason's Virginia Declaration. Unlike Mason, Dane was a well trained and experienced lawyer. 127 One can only speculate that, not without reason, he may have regarded the excessive bail clause as unnecessary surplusage because the requirement that "all persons be bailable" included by necessary implication the requirement that bail be reasonable. But Dane was not a member of the first Congress, and there was no one present to correct Mason's apparent assumption that the excessive bail clause alone was sufficient to epitomize the protections evolved from the long struggle against pretrial imprisonment.

Two other factors give some support for my conclusion that the excessive bail clause was meant to provide a constitutional right to bail and that the inadequacy of the form adopted for this purpose was the result of inadvertence. The first is that bail was apparently not a point of dispute between the colonies and England immediately before the Revolution. It is not mentioned in the 1774 protest documents such as the Fairfax Resolves, the Declaration and Resolves of the First Continental Congress, or the Address to the People of Quebec. This was doubtless in part due to the development of separate American law on the subject and in part to an unchallenged assumption that the 125 An Ordinance for the government of the Territory of the United States North-West of the River Ohio, July 13, 1787, art. ii.

126 RUTLAND 104.

127 Dane graduated from Harvard College "with high honors," read law in the office of a judge in Salem, and his legal work, which included an eight volume "comprehensive compendium" of American law, "displayed not only his great legal attainments but a meticulous attention to detail and a methodical labor which was characteristic of everything he undertook." His support of Harvard Law School resulted in the Dane Professorship at that school. Knott, Nathan Dane, in 5 DICTIONARY OF AMERICAN BIOGRAPHY 63-64 (1930).

NW ordo

lang.