If you have not a power of declaring an incapacity simply by the mere act of declaring it, it is evident to the most ordinary reason you cannot have a right of expulsion, inferring, or rather including, an incapacity.  For as the law, when it gives any direct right, gives also as necessary incidents all the means of acquiring the possession of that right, so, where it does not give a right directly, it refuses all the means by which such a right may by any mediums be exercised, or in effect be indirectly acquired.  Else it is very obvious that the intention of the law in refusing that right might be entirely frustrated, and the whole power of the legislature baffled.  If there be no certain, invariable rule of eligibility, it were better to get simplicity, if certainty is not to be had, and to resolve all the franchises of the subject into this one short proposition,—­the will and pleasure of the House of Commons.

The argument drawn from the courts of law applying the principles of law to new cases as they emerge is altogether frivolous, inapplicable, and arises from a total ignorance of the bounds between civil and criminal jurisdiction, and of the separate maxims that govern these two provinces of law, that are eternally separate.  Undoubtedly the courts of law, where a new case comes before them, as they do every hour, then, that there may be no defect in justice, call in similar principles, and the example of the nearest determination, and do everything to draw the law to as near a conformity to general equity and right reason as they can bring it with its being a fixed principle. Boni judicis est ampliare justitiam,—­that is, to make open and liberal justice.  But in criminal matters this parity of reason and these analogies ever have been and ever ought to be shunned.

Whatever is incident to a court of judicature is necessary to the House of Commons as judging in elections.  But a power of making incapacities is not necessary to a court of judicature:  therefore a power of making incapacities is not necessary to the House of Commons.

Incapacity, declared by whatever authority, stands upon two principles:  first, an incapacity arising from the supposed incongruity of two duties in the commonwealth; secondly, an incapacity arising from unfitness by infirmity of nature or the criminality of conduct.  As to the first class of incapacities, they have no hardship annexed to them.  The persons so incapacitated are paid by one dignity for what they abandon in another, and for the most part the situation arises from their own choice.  But as to the second, arising from an unfitness not fixed by Nature, but superinduced by some positive acts, or arising from honorable motives, such as an occasional personal disability, of all things it ought to be defined by the fixed rule of law, what Lord Coke calls the golden metwand of the law, and not by the crooked cord of discretion.  Whatever is general is better borne.  We take our common lot