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ate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.’’ 45 Then in Dairy Queen v. Wood, 46 in which the plaintiff sought several types of relief, including an injunction and an accounting for money damages, the Court held that, even though the claim for legal relief was incidental to the equitable relief sought, the Seventh Amendment required that the issues pertaining to that legal relief be tried before VerDate Apr<15>2004 11:57 May 10, 2004 Jkt 077500 PO 00000 Frm 00009 Fmt 8222 Sfmt 8222 C:\CONAN\CON034.SGM PRFM99 PsN: CON034 1556 AMENDMENT 7—CIVIL TRIALS 47 If legal and equitable claims are joined, and the court erroneously dismisses the legal claims and decides common issues in the equitable action, the plaintiff cannot be collaterally estopped from relitigating those common issues in a jury trial. Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990). 48 396 U.S. 531 (1970). 49 The stockholders’ derivative action is a creation of equity made necessary by the traditional concept of ‘‘the corporate entity’’ or the ‘‘concept of separate personality.’’ That is, the corporation is an entity distinct and separate from its shareholders. Thus, while shareholders were relieved from unlimited liability for corporate liabilities, the complementary result was that harm to the corporation did not confer any right of action upon a shareholder to sue to right that harm. But if the harm were caused by the abuse of those who managed and controlled the corporation, the corporation naturally would not proceed against them and the common law courts would not allow the shareholders to bring an action running to the ‘‘separate personality’’ of the corporation; equity thus permitted a derivative action in which the shareholder is permitted to set in motion the adjudication of a cause of action belonging to the corporation. Prunty, The Shareholders’ Derivative Suit: Notes on Its Derivation, 32 N.Y.U. L. REV. 980 (1957). 50 Justices Stewart and Harlan and Chief Justice Burger dissented, arguing that the Seventh Amendment did not expand the right to a jury trial, that the Rules simply preserved the right as it had existed, and that it was error to think that the two could somehow ‘‘magically interact’’ to enlarge the right in a way that neither did alone. Ross v. Bernhard, 396 U.S. 531, 543 (1970). 51 Among the possibilities in which a legal right was enforceable in equity in the absence of an adequate remedy at law are suits to compel specific performance of a contract, suits for cancellation of a contract, and suits to enjoin tortious action. On Ross’ implications, see J. MOORE, FEDERAL PRACTICE §§ 38.11[8.-8], 38.11[9] (2d ed. 1971). a jury, because the primary rights being adjudicated were legal in character. Thus, the rule that emerged was that legal claims must be tried before equitable ones and before a jury if the litigant so wished. 47 In Ross v. Bernhard, 48 the Court further held that the right to a jury trial depends on the nature of the issue to be tried rather than the procedural framework in which it is raised. The case involved a stockholder derivative action, 49 which has always been considered to be a suit in equity. The Court agreed that the action was equitable but asserted that it involved two separable claims. The first, the stockholder’s standing to sue for a corporation, is an equitable issue; the second, the corporation’s claim asserted by the stockholder, may be either equitable or legal. Because the 1938 merger of law and equity in the federal courts eliminated any procedural obstacles to transferring jurisdiction to the law side once the equitable issue of standing was decided, the Court continued, if the corporation’s claim being asserted by the stockholder was legal in nature, it should be heard on the law side and before a jury. 50 Whether this analysis will be followed in other areas so that the right to a jury trial extends to all legal issues in actions formerly within equity’s concurrent jurisdiction is a question now open. 51 VerDate Apr<15>2004 11:57 May 10, 2004 Jkt 077500 PO 00000 Frm 00010 Fmt 8222 Sfmt 8222 C:\CONAN\CON034.SGM PRFM99 PsN: CON034 AMENDMENT 7—CIVIL TRIALS 1557 52 Vicksburg & Meridian R.R. v. Putnam, 118 U.S. 545, 553 (1886); United States v. Philadelphia & Reading R.R., 123 U.S. 113, 114 (1887). 53 Vicksburg & Meridian R.R. v. Putnam, 118 U.S. 545 (1886) (citing Carver v. Jackson, 29 U.S. (4 Pet.) 1, 80 (1830); Magniac v. Thompson, 32 U.S. (7 Pet.) 348, 390 (1833); Mitchell v. Harmony, 54 U.S. (13 How.) 115, 131 (1852); Transportation Line v. Hope, 95 U.S. 297, 302 (1877)). 54 Games v. Dunn, 39 U.S. (14 Pet.) 322, 327 (1840). 55 Sparf and Hansen v. United States, 156 U.S. 51, 99–100 (1895); Pleasants v. Fant, 89 U.S. (22 Wall.) 116, 121 (1875); Randall v. Baltimore & Ohio R.R., 109 U.S. 478, 482 (1883); Meehan v. Valentine, 145 U.S. 611, 625 (1892); Coughran v. Bigelow, 164 U.S. 301 (1896). 56 Walker v. New Mexico So. Pac. R.R., 165 U.S. 593, 598 (1897). 57 Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U.S. 674 (1895); Randall v. Baltimore & Ohio R.R., 109 U.S. 478, 482 (1883), and cases cited therein. 58 Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1889). 59 Arkansas Cattle Co. v. Mann, 130 U.S. 69, 74 (1889). 60 Dimick v. Schiedt, 293 U.S. 474, 476–78 (1935). 61 International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv, Maats., 393 U.S. 74, 75 (1968). But see Neely v. Martin K. Eby Construction Co., 386 U.S. 317 (1967), where the Court held that the Seventh Amendment does not bar an appellate court from granting a judgment n. o. v. insofar as ‘‘there is no greater restriction on the province of the jury when an appellate court enters judg- Procedures Limiting Jury’s Role.—As was noted above, the primary purpose of the Amendment was to preserve the historic line separating the province of the jury from that of the judge, without at the same time preventing procedural improvement which did not transgress this line. Elucidating this formula, the Court has achieved the following results: it is constitutional for a federal judge, in the course of trial, to express his opinion upon the facts, provided all questions of fact are ultimately submitted to the jury, 52 to call the jury’s attention to parts of the evidence he deems of special importance, 53 being careful to distinguish between matters of law and matters of opinion in relation thereto, 54 to inform the jury when there is not sufficient evidence to justify a verdict, that such is the case, 55 to require a jury to answer specific interrogatories in addition to rendering a general verdict, 56 to direct the jury, after the plaintiff’s case is all in, to return a verdict for the defendant on the ground of the insufficiency of the evidence, 57 to set aside a verdict which in his opinion is against the law or the evidence, and order a new trial, 58 to refuse defendant a new trial on the condition, accepted by plaintiff, that the latter remit a portion of the damages awarded him, 59 but not, on the other hand, to deny plaintiff a new trial on the converse condition, although defendant accepted it. 60 Nor can a Court of Appeals reverse the jury’s finding on the issue of reasonableness of petitioner’s conduct, in an indemnity action for damages respondent had paid petitioner’s employee, on the ground that as a matter of law petitioner had not acted reasonably; ‘‘[u]nder the Seventh Amendment, that issue should have been left to the jury’s determination.’’ 61 VerDate Apr<15>2004 11:57 May 10, 2004 Jkt 077500 PO 00000 Frm 00011 Fmt 8222 Sfmt 8222 C:\CONAN\CON034.SGM PRFM99 PsN: CON034 1558 AMENDMENT 7—CIVIL TRIALS ment n. o. v. than when a trial court does.’’ Id. at 322. A federal appellate court may also review a district court’s denial of a motion to set aside an award as excessive under an abuse of discretion standard. Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996) (New York State law which requires a review of jury awards to determine if they ‘‘deviate materially from reasonable compensation’’ may be adopted by federal district, but not appellate, court exercising diversity jurisdiction). 62 228 U.S. 364 (1913). 63 F. JAMES, CIVIL PROCEDURE 332–33 & n.8 (1965). 64 But see Hetzel v. Prince William County, 523 U.S. 208 (1998) (when an appeals court affirms liability but orders the level of damages to be reconsidered, the plaintiff has a Seventh Amendment right either to accept the reduced award or to have a new trial). 65 Baltimore & Carolina Line v. Redman, 295 U.S. 654 (1935). 66 Id. at 661. The Court’s opinions in both Redman and Slocum were authored by Justice Van Devanter. 67 Lyon v. Mutual Benefit Ass’n, 305 U.S. 484 (1939). 68 Ch. 255, § 5, 17 Stat. 197 (1872), now superseded by the Federal Rules of Civil Procedure. 69 Galloway v. United States, 319 U.S. 372, 389 (1943), wherein the Court said ‘‘the practice has been approved explicitly in the promulgation of the Federal Rules of Civil Procedure,’’ citing Berry v. United States, 312 U.S. 450 (1941). In the latter case the Court remarked that the new rule has given ‘‘district judges, under certain circumstances, . . . the right (but not the mandatory duty) to enter a judgment contrary to the jury’s verdict without granting a new trial. But that rule has not taken away from juries and given to judges any part of the exclusive power of juries to weigh evidence and determine contested issues of facts—a jury being the constitutional tribunal provided for trying facts in courts of law.’’ Id. at 452–53. Directed Verdicts.—In 1913 the Court in Slocum v. New York Life Ins. Co., 62 held that a federal appeals court lacked authority to order the entry of a judgment contrary to the verdict in a case in which the federal trial court should have directed a verdict for one party, but the jury had found for the other party contrary to the evidence; the only course open to either court was to order a new trial. While plainly in accordance with the common law as it stood in 1791, the five-to-four decision was subjected to a heavy fire of professional criticism based on convenience and urging recognition of capacity for growth in the common law. 63 Slocum was then impaired, if not completely undermined, by subsequent holdings. 64 In the first of these cases, the Court held that a trial court had the right to enter a judgment for the plaintiff on the verdict of the jury after having reserved decision on a motion by the defendant for dismissal on the ground of insufficient evidence. 65 The Court distinguished Slocum while noting that its ruling qualified some of its assertions in Slocum. 66 In the second case 67 the Court sustained a United States district court in rejecting the defendant’s motion for dismissal and in peremptorily directing a verdict for the plaintiff. The Supreme Court held that there was ample evidence to support the verdict and that the trial court, in following Arkansas procedure in the diversity action, had acted consistently with the Federal Conformity Act. 68 In the third case, 69 which involved VerDate Apr<15>2004 11:57 May 10, 2004 Jkt 077500 PO 00000 Frm 00012 Fmt 8222 Sfmt 8222 C:\CONAN\CON034.SGM PRFM99 PsN: CON034 AMENDMENT 7—CIVIL TRIALS 1559 70 319 U.S. 372, 397. The case, being a claim against the United States, need not have been tried by a jury except for the allowance of Congress. 71 See, e.g., Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317 (1967), interpreting Rules 50(b), 50(c)(2) and 50(d) of the Federal Rules of Civil Procedure, as well as the Seventh Amendment. 72 E.g., Tiller v. Atlantic Coast Line R.R., 318 U.S. 54 (1943), in which Justice Black’s opinion of the Court initiated the line of cases here considered; Bailey v. Central Vermont Ry., 319 U.S. 350 (1943); Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29 (1944). See Rogers v. Missouri Pacific R.R., 352 U.S. 500, 507–510 (1957). Trial by jury is ‘‘part and parcel of the remedy afforded railroad workers’’ under the FELA. Bailey v. Central Vermont Ry., 319 U.S. at 354. ‘‘The difference between the majority and minority of the Court in our treatment of FELA cases concerns the degree of vigilance we should exercise in safeguarding the jury trial— guaranteed by the Seventh Amendment.’’ Harris v. Pennsylvania R.R., 361 U.S. 15, 17 (1959) (Justice Douglas concurring). ‘‘[T]his Court is vigilant to exercise its power of review . . . to correct instances of improper administration of the Act and to prevent its erosion by narrow and niggardly construction.’’ Rogers v. Missouri Pacific R.R., 352 U.S. at 509. 73 Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524 (1957) (Justice Frankfurter dissenting), contains a lengthy review and critique of the Court’s practice. an action against the Government for benefits under a war risk insurance policy which had been allowed to lapse, the trial court directed a verdict for the Government on the ground of the insufficiency of the evidence, and was sustained in so doing by both the appeals court and the Supreme Court. Three Justices, speaking by Justice Black, dissented in an opinion in which it is asserted that ‘‘today’s decision marks a continuation of the gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment.’’ 70 That the Court should experience occasional difficulty in harmonizing the idea of preserving the historic common law covering the relations of judge and jury with the notion of a developing common law is not surprising. 71 Jury Trial Under the Federal Employers’ Liability Act.— One aspect of the problem of delineating the respective provinces of judge and jury divided the Justices for a lengthy period but now appears quiescent—cases arising under the Federal Employers’ Liability Act. The argument was frequently couched by the majority in terms of protecting the function of the jury from usurpation by judges intent on subverting and limiting remedial legislation enacted by Congress, 72 and by the minority in terms of the costs to the Supreme Court in time and effort spent in evaluating the quantum of evidence necessary to create a jury question. 73 Although the considerations present in the FELA cases were not inherently different from those in any civil case where the direction of a verdict or a decision of an issue by the court may raise sub silentio the issue whether the Seventh Amendment right to a VerDate Apr<15>2004 11:57 May 10, 2004 Jkt 077500 PO 00000 Frm 00013 Fmt 8222 Sfmt 8222 C:\CONAN\CON034.SGM PRFM99 PsN: CON034 1560 AMENDMENT 7—CIVIL TRIALS 74 Rogers v. Missouri Pacific R.R., 352 U.S. 500, 510 (1957). 75 Schulz v. Pennsylvania R.R., 350 U.S. 523 (1956); Ferguson v. Moore-McCormack Lines, 352 U.S. 521 (1957); Michalic v. Cleveland Tankers, 364 U.S. 325 (1960). See also Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957); A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355 (1962). 76 Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525 n.2 (1957) (Justice Frankfurter dissenting). 77 Rogers v. Missouri Pacific R.R., 352 U.S. at 507. The cases are collected id. at 510 n.26. The cases are tabulated and categorized in Wilkerson v. McCarthy, 336 U.S. 53, 68–73 (1949) (Justice Douglas concurring), and Harris v. Pennsylvania R.R., 361 U.S. 15, 16–25 (1959). See also Harrison v. Missouri Pac. R.R., 372 U.S. 248 (1963); Basham v. Pennsylvania R.R., 372 U.S. 699 (1963). 78 Harris v. Pennsylvania R.R., 361 U.S. 15, 27–28 (1959) (Justice Harlan dissenting). See also Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524 (1957) (Justice Frankfurter dissenting); Dick v. New York Life Ins. Co., 359 U.S. 437, 447 (1959) (Justice Frankfurter dissenting). jury trial has been impaired by court usurpation of the jury function, cases under the FELA, which retained the common-law requirements of negligence as a prerequisite to recovery, involved peculiarly difficult decisions as to the adequacy of proof of negligence. ‘‘Special and important reasons for the grant of certiorari in these cases are certainly present,’’ the Court wrote in a leading case, ‘‘when lower federal and state courts persistently deprive litigants of their right to a jury determination.’’ 74 The operating test was: ‘‘Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on ground of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.’’ Similar issues have arisen under such statutes as the Jones Act 75 and the Safety Appliance Act. 76 ‘‘Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities.’’ 77 A persistent dissent in the line of cases expressed the fear that in FELA cases ‘‘anything that a jury says goes, with the consequences that all meaningful judicial supervision over jury verdicts in such cases has been put at an end. . . . If so, . . . the time has come when the Court should frankly say so. If not, then the Court should at least give expression to the standards by which the lower courts are to be guided in these cases.’’ 78 VerDate Apr<15>2004 11:57 May 10, 2004 Jkt 077500 PO 00000 Frm 00014 Fmt 8222 Sfmt 8222 C:\CONAN\CON034.SGM PRFM99 PsN: CON034 AMENDMENT 7—CIVIL TRIALS 1561 79 The Justices v. Murray, 76 U.S. (9 Wall.) 274, 278 (1870); Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 242–46 (1897). 80 See Time, Inc. v. Pape, 401 U.S. 279, 284–92 (1971), and cases cited therein. Appeals From State Courts to the Supreme Court The clause of the Amendment prohibiting the re-examination of any fact found by a jury is not restricted in its application to suits at common law tried before juries in courts of the United States. It applies equally to a case tried before a jury in a state court and brought to the Supreme Court on appeal. 79 Note, however, that the Court has frequently indicated that in cases involving a claim of a denial of constitutional rights it is free to examine and review the evidence upon which lower court conclusions are based, a position that under some circumstances could conflict with the principle of jury autonomy. 80 VerDate Apr<15>2004 11:57 May 10, 2004 Jkt 077500 PO 00000 Frm 00015 Fmt 8222 Sfmt 8222 C:\CONAN\CON034.SGM PRFM99 PsN: CON034 VerDate Apr 14 2004 11:04 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00016 Fmt 8221 Sfmt 8221 C:\CONAN\CON034.XXX PRFM99 PsN: CON034 1563 EIGHTH AMENDMENT FURTHER GUARANTEES IN CRIMINAL CASES CONTENTS Page Excessive Bail ............................................................................................................................ 1565 Excessive Fines .......................................................................................................................... 1569 Cruel and Unusual Punishments ............................................................................................. 1570 Style of Interpretation ........................................................................................................ 1571 Application and Scope ........................................................................................................ 1572 Capital Punishment ........................................................................................................... 1573 General Validity and Guiding Principals .................................................................. 1575 Implementation of Procedural Requirements ........................................................... 1580 Limitations on Capital Punishment: Proportionality ............................................... 1587 Limitations on Capital Punishment: Diminished Capacity ..................................... 1589 Limitations on Capital Punishment: Equality of Application ................................. 1592 Limitations on Habeas Corpus Review of Capital Sentences .................................. 1593 Proportionality .................................................................................................................... 1597 Prisons and Punishment .................................................................................................... 1601 Limitation of the Clause to Criminal Punishments ........................................................ 1603 VerDate Apr 15 2004 12:56 May 10, 2004 Jkt 077500 PO 00000 Frm 00001 Fmt 8221 Sfmt 8221 C:\CONAN\CON035.XXX PRFM99 PsN: CON035 VerDate Apr 14 2004 11:04 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00002 Fmt 8221 Sfmt 8221 C:\CONAN\CON035.XXX PRFM99 PsN: CON035 1565 1 Stack v. Boyle, 342 U.S. 1, 4 (1951). Note that in Bell v. Wolfish, 441 U.S. 520, 533 (1979), the Court enunciated a narrower view of the presumption of innocence, describing it as ‘‘a doctrine that allocates the burden of proof in criminal trials,’’ and denying that it has any ‘‘application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.’’ 2 Carlson v. Landon, 342 U.S. 524, 545 (1952). Justice Black in dissent accused the Court of reducing the provision ‘‘below the level of a pious admonition’’ by saying in effect that ‘‘the Amendment does no more than protect a right to bail which Congress can grant and which Congress can take away.’’ Id. at 556. 3 The only recorded comment of a Member of Congress during debate on adoption of the ‘‘excessive bail’’ provision was that of 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 judges?’’ 1 ANNALS OF CONGRESS 754 (1789). 4 Still the best and most comprehensive treatment is Foote, The Coming Constitutional Crisis in Bail: I, 113 U. PA. L. REV. 959, 965–89 (1965), reprinted in C. FOOTE, STUDIES ON BAIL 181, 187–211 (1966). 5 3 Edw. 1, ch. 12. FURTHER GUARANTEES IN CRIMINAL CASES EIGHTH AMENDMENT Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. EXCESSIVE BAIL ‘‘This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. ‘. . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.’’ 1 ‘‘The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.’’ 2 These two contrasting views of the ‘‘excessive bail’’ provision, uttered by the Court in the same Term, reflect the ambiguity inherent in the phrase and the absence of evidence regarding the intent of those who drafted and who ratified the Eighth Amendment. 3 The history of the bail controversy in England is crucial to understanding why the ambiguity exists. 4 The Statute of Westminster the First of 1275 5 set forth a detailed enumeration of those offenses which were bailable and those which were not, and, VerDate Aug<04>2004 11:11 Oct 07, 2004 Jkt 077500 PO 00000 Frm 00001 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036 1566 AMENDMENT 8—PUNISHMENT FOR CRIME 6 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 233–43 (1833). The statute is summarized at pp. 234–35. 7 3 How. St. Tr. 1 (1627). 8 3 Charles 1, ch. 1. Debate on the Petition, as precipitated by Darnel’s Case, is reported in 3 How. St. Tr. 59 (1628). Coke especially tied the requirement that imprisonment be pursuant to a lawful cause reportable on habeas corpus to effectuation of the right to bail. Id. at 69. 9 Jenkes’ Case, 6 How. St. Tr. 1189, 36 Eng. Rep. 518 (1676). 10 31 Charles 2, ch. 2. The text is in 2 DOCUMENTS ON FUNDAMENTAL HUMAN RIGHTS 327–340 (Z. Chafee ed., 1951). 11 I W. & M. 2, ch. 2, clause 10. 12 7 F. Thorpe, The Federal and State Constitutions, H. R. DOC. NO. 357, 59TH CONG., 2D SESS. 3813 (1909). ‘‘Sec. 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’’ 13 3 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE CONSTITUTION 658 (2d ed. 1836). 14 1 ANNALS OF CONGRESS 438 (1789). though supplemented by later statutes, it served for something like five-and-a-half centuries as the basic authority. 6 Darnel’s Case, 7 in which the judges permitted the continued imprisonment of persons without bail merely upon the order of the King, was one of the moving factors in the enactment of the Petition of Right in 1628. 8 The Petition cited Magna Carta as proscribing the kind of detention that was permitted in Darnel’s Case. The right to bail was again subverted a half-century later by various technical subterfuges by which petitions for habeas corpus could not be presented, 9 and Parliament reacted by enacting the Habeas Corpus Act of 1679, 10 which established procedures for effectuating release from imprisonment and provided penalties for judges who did not comply with the Act. That avenue closed, the judges then set bail so high it could not be met, and Parliament responded by including in the Bill of Rights of 1689 11 a provision ‘‘[t]hat excessive bail ought not to be required.’’ This language, along with es

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