such probable circumstances are alleged, they alter the state and condition of the prisoner. He is no longer that all-but-convicted felon, whom the law intends, and who by law is not bailable at all. If no circumstances whatsoever are alleged in his favour;—if no allegation whatsoever be made to lessen the force of that evidence which the law annexes to a positive charge of felony, and particularly to the fact of being taken with the maner, I then say, that the Lord chief justice of England has no more right to bail him than a justice of peace. The discretion of an English judge is not of mere will and pleasure;—it is not arbitrary;—it is not capricious; but, as that great lawyer (whose authority I wish you respected half as much as I do) truly says[1], "Discretion, taken as it ought to be, is, discernere per legem quid sit justum. If it be not directed by the right line of the law, it is a crooked cord, and appeareth to be unlawful."—If discretion were arbitrary in the judge, he might introduce whatever novelties he thought proper; but, says Lord Coke, "Novelties, without warrant of precedents, are not to be allowed; some
- ↑ 4. Inst. 41. 66.
