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