was to settle this point.  Secondly, I lay it down as a rule, that the power of occasional incapacitation, on discretionary grounds, is a legislative power.  In order to establish this principle, if it should not be sufficiently proved by being stated, tell me what are the criteria, the characteristics, by which you distinguish between a legislative and a juridical act.  It will be necessary to state, shortly, the difference between a legislative and a juridical act.

A legislative act has no reference to any rule but these two,—­original justice, and discretionary application.  Therefore it can give rights,—­rights where no rights existed before; and it can take away rights where they were before established.  For the law, which binds all others, does not and cannot bind the law-maker:  he, and he alone, is above the law.  But a judge, a person exercising a judicial capacity, is neither to apply to original justice nor to a discretionary application of it.  He goes to justice and discretion only at second hand, and through the medium of some superiors.  He is to work neither upon his opinion of the one nor of the other, but upon a fixed rule, of which he has not the making, but singly and solely the application to the case.

The power assumed by the House neither is nor can be judicial power exercised according to known law.  The properties of law are, first, that it should be known; secondly, that it should be fixed, and not occasional.  First, this power cannot be according to the first property of law; because no man does or can know it, nor do you yourselves know upon what grounds you will vote the incapacity of any man.  No man in Westminster Hall, or in any court upon earth, will say that is law, upon which, if a man going to his counsel should say to him, “What is my tenure in law of this estate?” he would answer, “Truly, Sir, I know not; the court has no rule but its own discretion; they will determine.”  It is not a fixed law; because you profess you vary it according to the occasion, exercise it according to your discretion, no man can call for it as a right.  It is argued, that the incapacity is not originally voted, but a consequence of a power of expulsion.  But if you expel, not upon legal, but upon arbitrary, that is, upon discretionary grounds, and the incapacity is ex vi termini and inclusively comprehended in the expulsion, is not the incapacity voted in the expulsion?  Are they not convertible terms?  And if incapacity is voted to be inherent in expulsion, if expulsion be arbitrary, incapacity is arbitrary also.  I have therefore shown that the power of incapacitation is a legislative power; I have shown that legislative power does not belong to the House of Commons; and therefore it follows that the House of Commons has not a power of incapacitation.

I know not the origin of the House of Commons, but am very sure that it did not create itself; the electors were prior to the elected, whose rights originated either from the people at large, or from some other form of legislature, which never could intend for the chosen a power of superseding the choosers.