any security but the body of the offender; and when the latter statute prescribes the form in which persons arrested on suspicion of felony (being bailable by the law) may be let to bail, it evidently supposes that there are some cases not bailable by the law.—It may be thought, perhaps, that I attribute to the legislature an appearance of inaccuracy in the use of terms merely to serve my present purpose. But, in truth, it would make more forcibly for my argument, to presume, that the legislature were constantly aware of the strict legal distinction between bail and replevy, and that they always meant to adhere to it[1]. For if it be true that replevy is by the sheriffs, and bail by the higher courts at Westminster (which I think no lawyer will deny,) it follows, that when the legislature expressly says that any particular offence is by law not bailable, the superior courts are comprehended in the prohibition, and bound by it. Otherwise, unless there was a positive exception of the superior courts (which I
- ↑ Vide 2 Inst. 150, 186,—"The word replevisable never signifies bailable. Bailable is in a court of record, by the King's justices; but replevisable is by the Sheriff."—Selden, State Trials, vii. 149.
