onary 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 therefo