concurring.
Mr. Priest stands convicted, by his own plea of guilty, of two assault crimes. A sentence of incarceration has been imposed. Before the conviction, he was released “on bail.” He seeks release from custody while his appeal of the judgment *420entered on those convictions is pending. I concur in the opinion of the court that release pending a criminal defendant’s appeal is not constitutionally guaranteed.1 I write separately to discuss and apply an aspect of constitutional interpretation that I find most persuasive in this case.
Where a constitutional provision mandates protection of individuals against arbitrary governmental power, it is in order to examine the historical evil that created society’s demand for that protection. Establishing the nature of that evil, then and now, elucidates the scope of the protection afforded by a constitutional provision originally designed to overcome it.
Bail, as an alternative to jail, was a legal concept well known in early England. However, when the government of a seventeenth century king refused to honor that concept, parliament asserted it as an inviolable right, related to Magna Carta, in its Petition of Right of 1628, addressed to that king. The wording of that assertion assumes that the right applies to one held absent a conviction of crime. The Petition of Right complained to the king that freemen had “been imprisoned, without any cause shewed * * * without being charged with anything to which they might make answer according to law.” 1 Schwartz, The Bill of Rights 17, 20 (1971). The king seemed to acquiesce to the demands in the Petition but then sent parliament home, prevented its meeting again for 11 years, and continued to insist that unconvicted persons be held without bail. 6 Holdworth’s History of English Law 106 (1924); 5 Encyclopedia Britannica 306 (1971).
In 1635, the Massachusetts General Court (i.e. the legislature of that colony) established a committee to write fundamental laws to limit a magistrate “in resemblance to a Magna Carta.” The Massachusetts Body of Liberties, drafted pursuant to that charge, was adopted in 1641. Swindler, et al, Bibliography, Sources and Documents of U.S. Constitution, at Chronology, 1-2 second series (1982).
*421While the concerns of the Massachusetts colonial legislators are not self-evident, the Petition of Right and its aftermath were provoked in part by the king imprisoning persons, without charges, in an effort to force payment of “taxes” that parliament had refused to approve and levy. It was in that setting that the king would not and parliament could not provide an effective remedy for coercive incarceration before trial. If the Massachusetts Body of Liberties was adopted with knowledge of events in England, as seems inevitably to be the case, its bail provisions were addressed to remedying incarceration that occurred before trial and without presentment of formal, distinct charges.2
Roughly 100 years later, Blackstone continued recognition of the same distinction — that bail applied before conviction rather than after sentence imposed. He used the following words:
“Let us next see, who may not be admitted to bail, or, what offences (sic) are not bailable. And here I shall not consider any one of those cases in which bail is ousted by statute, from prisoners convicted of particular offences: for then such imprisonment without bail is part of their sentence and punishment. But, where the imprisonment is only for safe custody before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away, wherever the offence is of a very enormous nature: for then the public is entitled to demand nothing less than the highest security that can be given, viz. the body of the accused; in order to ensure that justice shall be done upon him, if guilty. Such persons therefore, as the author of the mirror observes, have no other sureties but the four walls of the prison. By the ancient common law, before and since the conquest, all felonies were bailable, till murder was excepted by statute: so that persons might be admitted to bail before conviction *422almost in every case.” (Emphasis in Original.) (Footnotes omitted.) 4 Blackstone, Commentaries, 298.3
That distinction is also found in Justice Marshall’s discussion, while acting as a federal circuit judge, in United States v. Feely, 25 F Cas 1055, 1057 (CCD Va 1813) (Bail is “to combine the administration of criminal justice with the convenience of a person accused, but not proved to be guilty. ”). In Ex parte Milburn, 34 US (9 Pet) 704, 710, 9 L Ed 280, 282 (1835), the same distinction is assumed. The Supreme Court of the United States referred to the office of bail in a criminal case as “taken to secure the due attendance of the party accused, to answer the indictment, and to submit to a trial, and the judgment of the court thereon.”4
Apparently, avoiding the evil against which Oregon’s Constitutional protection was directed, as perceived by an early Oregon legislature, did not absolutely require bail on appeal. Oregon Laws of 1864, Code of Criminal Procedure, as reported in Deady, General Laws of Oregon, 1845-1864, at page 484, provided:
“Sec. 257. If the charge be for any other crime than those mentioned in the last section, the defendant, before conviction, is entitled to be admitted to bail, as a matter of right.
*423‘ ‘Sec. 258. After judgment of conviction of a crime other than those mentioned in section 256, a defendant who has appealed, and when there is a stay of proceedings and not otherwise, may be admitted to bail as a matter of right; and as a matter of discretion, a defendant may be admitted to bail for his appearance from day to day before the magistrate, on the examination of the charge, before being held to answer, or discharged.” (Emphasis added.)
That statutory enactment continued the distinction found in the historical documents — that bail of right only applied to a defendant accused, and before conviction. It reflects a practical construction of the constitution “familiar to the time of the adoption of the constitution,” Knutson v. Cupp, 287 Or 489, 492, 601 P2d 129 (1979).
The Oregon Constitution, Article I, section 14, does not mandate bail on appeal of a criminal conviction.
The Oregon Constitution, Article I, section 14, provides:
“Offences (sic), except murder, and treason, shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong.”
Regarding bail, the 1641 Massachusetts Body of Liberties provided that:
“No mans person shall be restrained or imprisoned by any authority whatsoever, before the law hath sentenced him thereto, if he can put in sufficient securitie, hayle or mainprise, for his appearance, and good behavior in the meane time, unlesse it be Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court [i.e. legislature] doth allow it.” Swindler, Sources and Documents of U. S. Constitution, Vol 5, 49 (1975). (Emphasis added.)
As the last sentence of this excerpt from Blackstone demonstrates, the implication in United States v. Edwards, 430 A2d 1321 (DC App 1981), cert den 455 US 1022 (1982), that the English tradition included no right to bail is exaggerated.
The federal constitution, by its Bill of Rights, only guaranteed that courts would not impose excessive bail. Mandating bail as a right of persons accused was left to state constitutions, which, as the court’s opinion herein notes, very generally included some guarantee of the right to bail and not simply prohibitions against excessive amounts of bail. The excessive bail prohibition derives from a different evil, one that persisted after bail was again being allowed.
The Preamble to the English Bill of Rights of 1689 stated, as an accusation against the former king, that:
“[A]nd excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.”
Its text provided:
“[Ejxcessive bail ought not to be required.”
Some present state constitutions contain both a general right to bail and restrictions against setting an excessive amount, separately stated. E.g., Tenn Const, Art I, §§ 15, 16; Or Const, Art I, §§ 14,16. Obviously the right to bail and prohibition of excessive bail are treated as two separate subjects.