During the arbitrary reigns of the Stuarts in Britain, particularly of the two last, one frequent mode of oppressing those who were obnoxious to the court, was to cause criminal proceedings to be instituted against them, to demand bail in extravagant sums, and on their failing to procure it, to commit them to prison. When the revolution took place, among other provisions demanded by the people, and readily assented to by William III. was the clause which has been transcribed into this amendment. If excessive bail is demanded by one magistrate, another may moderate it on a habeas corpus, issued to the keeper of the prison in whose custody the party is. This power is not, however, to be abused, by reducing the bail below a reasonable sum. In such a case, the latter magistrate would himself be liable to a fine, if the criminal should not appear at the appointed time.
Excessive fines constitute one mode of inflicting cruel punishments.
This restriction applies equally to the legislative and to the judicial authority. In respect to the former, however, it is rather to be considered in the light of a recommendation than as a condition on which the constitutionality of the law depends. The prohibition of unusual punishments applies alike, under the qualifications already noticed, to the legislative and to the judicial power. The laws of a free country seldom leave the sort of punishment to be inflicted to the discretion of the judge, although the measure or extent of it, as for instance the quantum of a limited fine, or the duration of a term of imprisonment, which, by the law is not to be exceeded, is often submitted to him. The peculiar circumstances of each case, the contrition or general good character of the offender, may suggest and justify a moderation of the full extent of the punishment.