Edmund Burke

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.

Nobody will, I hope, assert this; because the direct consequence would be the entire extinction of the difference between true and false judgments.

But what is very usual and natural is, to corrupt judicature into legislature.

The question is over, if this is shown not to be a legislative act.

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…

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.

Boni judicis est ampliare justitiam,--that is, to make open and liberal justice.

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…

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.

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…

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.

I know not the origin of the House of Commons, but am very sure that it did not create itself; the electors were prior to the elected, whose rights originated either from the people at large, or from some other form of legislature, which…

I have therefore shown that the power of incapacitation is a legislative power; I have shown that legislative power does not belong to the House of Commons; and therefore it follows that the House of Commons has not a power of…

And if incapacity is voted to be inherent in expulsion, if expulsion be arbitrary, incapacity is arbitrary also.

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?

The properties of law are, first, that it should be known; secondly, that it should be fixed, and not occasional.

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.

But a judge, a person exercising a judicial capacity, is neither to apply to original justice nor to a discretionary application of it.

For the law, which binds all others, does not and cannot bind the law-maker: he, and he alone, is above the law.

Therefore it can give rights,--rights where no rights existed before; and it can take away rights where they were before established.

A legislative act has no reference to any rule but these two,--original justice, and discretionary application.

Secondly, I lay it down as a rule, that the power of occasional incapacitation, on discretionary grounds, is a legislative power.

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.

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.

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.