27.The legislature cannot do it?The legislature cannot make a law to this effect?Why cannot?What is there that should hinder them?Why not this,as well as so many other laws murmured at,perhaps,as inexpedient,yet submitted to without any question of the right?With men of the same party,with men whose affections are already listed against the law in question,any thing will go down:any rubbish is good that will add fuel to the flame.But with regard to an impartial by-stander,it is plain that it is not denying the right of the legislature,heir authority,their power,or whatever be the wordit is not denying hat they can do what is in questionit is not that,I say,or any discourse verging that way that can tend to give him the smallest satisfaction.
28.Grant even the proposition in general:What are we the nearer?Grant that there are certain bounds to the authority of the legislature:Of what use is it to say so,when these bounds are what nobody has ever attempted to mark out to any useful purpose;that is,in any such manner whereby it might be known beforehand what description a law must be of to fall within,and what to fall beyond them?Grant that there are things which the legislature cannot do;grant that there are laws which exceed the power of the legislature to establish.What rule does this sort of discourse furnish us for determining whether any one that is in question is,or is not of the number?As far as I can discover,none.Either the discourse goes on in the confusion it began;either all rests in vague assertions,and no intelligible argument at all is offered;or if any,such arguments as are drawn from the principle of utility:arguments which,in whatever variety of words expressed,come at last to neither more nor less than this;that the tendency of the law is,to a greater or a less degree,pernicious.
If this then be the result of the argument,why not come home to it at once?Why turn aside into a wilderness of sophistry,when the path of plain reason is straight before us?
29.What practical inferences those who maintain this language mean should be deduced from it,is not altogether clear;nor,perhaps,does every one mean the same.Some who speak of a law as being void (for to this expression,not to travel through the whole list,I shall confine myself)would persuade us to look upon the authors of it as having thereby forfeited,as the phrase is,their whole power:as well that of giving force to the particular law in question,as to any other.These are they who,had they arrived at the same practical conclusion through the principle of utility,would have spoken of the law as being to such a degree pernicious,as that,were the bulk of the community to see it in its true light,the probable mischief of resisting it would be less than the probable mischief of submitting to it.These point,in the first instance,at hostile opposition.
30.Those who say nothing about forfeiture are commonly less violent in their views.These are they who,were they to ground themselves on the principle of utility,and,to use our language,would have spoken of the law as being mischievous indeed,but without speaking of it as being mischievous to the degree that has been just mentioned.The mode of opposition which they point to is one which passes under the appellation of a legal one.
31.Admit then the law to be void in their sense,and mark the consequences.
The idea annexed to the epithet void is obtained from those instances in which we see it applied to a private instrument.The consequence of a private instrument's being void is,that all persons concerned are to act as if no such instrument had existed.The consequence,accordingly,of a law's being void must be,that people shall act as if there were no such law about the matter:and therefore that if any person in virtue of the mandate of the law should do anything in coercion of another person,which without such law he would be punishable for doing,he would still be punishable;to wit,by appointment of the judicial power.Let the law for instance,be a law imposing a tax:a man who should go about to levy the tax by force would be punishable as a trespasser:should he chance to be killed in the attempt,the person killing him would not be punishable as for murder:
should he kill,he himself would,perhaps,be punishable as for murder.
To whose office does it appertain to do those acts in virtue of which such punishment would be inflicted?To that of the Judges.Applied to practice then,the effect of this language is,by an appeal made to the Judges,to confer on those magistrates a control ling power over the acts of the legislature.
32.By this management a particular purpose might perhaps,by chance be answered:and let this be supposed a good one.Still what benefit would,from the general tendency of such a doctrine,and such a practice in conformity to it,accrue to the body of the people is more than I can conceive.AParliament,let it be supposed,is too much under the influence of the Crown:pays too little regard to the sentiments and the interests of the people.Be it so.The people at any rate,if not so great a share as they might and ought to have,have had,at least,some share in chusing it.
Give to the Judges a power of annulling its acts;and you transfer a portion of the supreme power from an assembly which the people have had some share,at least,in chusing,to a set of men in the choice of whom they have not the least imaginable share;to a set of men appointed solely by the Crown:
appointed solely,and avowedly and constantly,by that very magistrate whose partial and occasional influence is the very grievance you seek to remedy.
