the more dangerous the abuse. Since the
Revolution, at least, the power of the nation has all flowed with a full
tide into the House of Commons. Secondly, because the House of Commons,
as it is the most powerful, is the most corruptible part of the whole
Constitution. Our public wounds cannot be concealed; to be cured, they
must be laid open. The public does think we are a corrupt body. In our
legislative capacity we are, in most instances, esteemed a very wise
body. In our judicial, we have no credit, no character at, all. Our
judgments stink in the nostrils of the people. They think us to be not
only without virtue, but without shame. Therefore, the greatness of our
power, and the great and just opinion of our corruptibility and our
corruption, render it necessary to fix some bound, to plant some
landmark, which we are never to exceed. That is what the bill proposes.
First, on this head, I lay it down as a fundamental rule in the law and
constitution of this country, that this House has not by itself alone a
legislative authority in any case whatsoever. I know that the contrary
was the doctrine of the usurping House of Commons which threw down the
fences and bulwarks of law, which annihilated first the lords, then the
Crown, then its constituents. But the first thing that was done on the
restoration of the Constitution 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