Bail, as generally understood, means the security given that a person charged with a crime or offence shall appear for trial, he obtaining liberation from prison in the meantime. The laws of England and Scotland differ on this subject. In England the committing magistrate may in all cases, except treason, admit to bail, and in nearly all of those minor offences, which are in England called misdemeanours as distinguished from felonies, he must admit to bail. In cases of treason, the Queen's Bench Division may admit to bail. The magistrate must judge of the sufficiency of the person tendered as bail, and must fix at his discretion the amount of bail to be paid if the accused fails to appear. If the accused seek to leave the country, the bail may have him apprehended. In Scotland, the law was that in capital cases (i.e. according to the old law of punishment—serious theft being capital) the magistrate was not entitled to accept bail, but that in all other cases the accused had a right to bail, which by a statute of 1799 was fixed at certain amounts for the various classes of society; £300 for a burgess or householder, and £60 for an inferior person. This arrangement was, however, found to work badly, and by the Bail Act of 1888 the law was altered so that all crimes and offences except murder and treason became bailable; the fixing of the amount was given to the magistrate granting bail, an appeal to the High Court being allowed both to the applicant and to the public prosecutor. The application for bail must be disposed of within twenty-four hours, failing which the accused must be forthwith liberated. The right of the High Court and of the Lord Advocate to admit to bail was not affected by the act. When an accused person fails to appear, sentence of outlawry is pronounced, and the bail-bonds are forfeited. In civil procedure in England, bail is used also as the technical name of securities given for the release of an arrested ship, or the loosing of a foreign attachment, and in some other cases.
In the United States, the practice with regard to bail is very much the same as in England both in civil and criminal cases. Bail is admitted upon all arrests in criminal cases when this offence is not punishable with death; in cases of treason against the government it may be admitted in the discretion of the court. When the punishment is death, bail can be taken only by the supreme or circuit court, or by a judge of the district court of the United States. The bail on commercial contracts is not discharged by death; bail for appearance in court is discharged in that event. The enforcement of recognisance is generally similar to that under the common law.