ower 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 with men of the same
description. But to be selected and marked out by a particular brand of
unworthiness among our fellow-citizens is a lot of all others the
hardest to be borne, and consequently is of all others that act winch
ought only to be trusted to the legislature, as not only _legislative_
in its nature, but of all parts of legislature the most odious. The
question is over, if this is shown not to be a legislative act.

But what is very usual and natural is, to corrupt judicature into
legislature. On this point it is proper to inquire whether a court of
judicature which decides without appeal has it as a necessary incident
of such judicature, that whatever it decides is _de jure_ law. Nobody
will, I hope, assert this; because the direct consequence would be the
entire extinction of the difference between true and false judgments.
For if the judgment makes the law, and not the law directs the judgment,
it is impossible there should be such a thing as an illegal judgment
given.

But instead of standing upon this ground, they introduce another
question wholly foreign to it: Whether it ought not to be submitted to
as if it were law? And then the question is,--By the Constitution of
this country, what degree of submission is due to the authoritative acts
of a limited power? This question of submission, determine it how you
please, has nothing to do in this discussion and in