The writ of attainder against Fenwick was not, as the vulgar imagined and still imagine, objectionable because it was retrospective. It is always to be remembered that retrospective legislation is bad in principle only when it affects the substantive law. Statutes creating new crimes or increasing the punishment of old crimes ought in no case to be retrospective. But statutes which merely alter the procedure, if they are in themselves good statutes, ought to be retrospective. To take examples from the legislation of our own time, the Act passed in 1845, for punishing the malicious destruction of works of art with whipping, was most properly made prospective only. Whatever indignation the authors of that Act might feel against the ruffian who had broken the Barberini Vase, they knew that they could not, without the most serious detriment to the commonwealth, pass a law for scourging him. On the other hand the Act which allowed the affirmation of a Quaker to be received in criminal cases allowed, and most justly and reasonably, such affirmation to be received in the case of a past as well as of a future misdemeanour or felony. If we try the Act which attainted Fenwick by these rules we shall find that almost all the numerous writers who have condemned it have condemned it on wrong grounds. It made no retrospective change in the substantive law. The crime was not new. It was high treason as defined by the Statute of Edward the Third. The punishment was not new. It was the punishment which had been inflicted on traitors of ten generations. All that was new was the procedure; and, if the new procedure had been intrinsically better than the old procedure, the new procedure might with perfect propriety have been employed. But the procedure employed in Fenwick's case was the worst possible, and would have been the worst possible if it had been established from time immemorial. However clearly political crime may have been defined by ancient laws, a man accused of it ought not to be tried by a crowd of five hundred and thirteen eager politicians, of whom he can challenge none even with cause, who have no judge to guide them, who are allowed to come in and go out as they choose, who hear as much or as little as they choose of the accusation and of the defence, who are exposed, during the investigation, to every kind of corrupting influence, who are inflamed by all the passions which animated debates naturally excite, who cheer one orator and cough down another, who are roused from sleep to cry Aye or No, or who are hurried half drunk from their suppers to divide. For this reason, and for no other, the attainder of Fenwick is to be condemned. It was unjust and of evil example, not because it was a retrospective Act, but because it was an act essentially judicial, performed by a body destitute of all judicial qualities.

The bill for punishing Duncombe was open to all the objections which can be urged against the bill for punishing Fenwick, and to other objections of even greater weight. In both cases the judicial functions were usurped by a body unfit to exercise such functions. But the bill against Duncombe really was, what the bill against Fenwick was not, objectionable as a retrospective bill. It altered the substantive criminal law. It visited an offence with a penalty of which the offender, at the time when he offended, had no notice.

It may be thought a strange proposition that the bill against Duncombe was a worse bill than the bill against Fenwick, because the bill against Fenwick struck at life, and the bill against Duncombe struck only at property. Yet this apparent paradox is a sober truth. Life is indeed more precious than property. But the power of arbitrarily taking away the lives of men is infinitely less likely to be abused than the power of arbitrarily taking away their property. Even the lawless classes of society generally shrink from blood. They commit thousands of offences against property to one murder; and most of the few murders which they do commit are committed for the purpose of facilitating or concealing some offence against property. The unwillingness of juries to find a fellow creature guilty of a capital felony even on the clearest evidence is notorious; and it may well be suspected that they frequently violate their oaths in favour of life. In civil suits, on the other hand, they too often forget that their duty is merely to give the plaintiff a compensation for evil suffered; and, if the conduct of the defendant has moved their indignation and his fortune is known to be large, they turn themselves into a criminal tribunal, and, under the name of damages, impose a large fine. As housebreakers are more likely to take plate and jewellery than to cut throats; as juries are far more likely to err on the side of pecuniary severity in assessing damages than to send to the gibbet any man who has not richly deserved it; so a legislature, which should be so unwise as to take on itself the functions properly belonging to the Courts of Law, would be far more likely to pass Acts of Confiscation than Acts of Attainder. We naturally feel pity even for a bad man whose head is about to fall. But, when a bad man is compelled to disgorge his ill-gotten gains, we naturally feel a vindictive pleasure, in which there is much danger that we may be tempted to indulge too largely.

The hearts of many stout Whigs doubtless bled at the thought of what Fenwick must have suffered, the agonizing struggle, in a mind not of the firmest temper, between the fear of shame and the fear of death, the parting from a tender wife, and all the gloomy solemnity of the last morning. But whose heart was to bleed at the thought that Charles Duncombe, who was born to carry parcels and to sweep down a counting-house, was to be punished for his knavery by having his income reduced to eight thousand a year, more than most earls then possessed?

His judges were not likely to feel compassion for him; and they all had strong selfish reasons to vote against him. They were all in fact bribed by the very bill by which he would be punished.

His property was supposed to amount to considerably more than four hundred thousand pounds. Two thirds of that property were equivalent to about sevenpence in the pound on the rental of the kingdom as assessed to the land tax. If, therefore, two thirds of that property could have been brought into the Exchequer, the land tax for 1699, a burden most painfully felt by the class which had the chief power in England, might have been reduced from three shillings to two and fivepence. Every squire of a thousand a year in the House of Commons would have had thirty pounds more to spend; and that sum might well have made to him the whole difference between being at ease and being pinched during twelve months. If the bill had passed, if the gentry and yeomanry of the kingdom had found that it was possible for them to obtain a welcome remission of taxation by imposing on a Shylock or an Overreach, by a retrospective law, a fine not heavier than his misconduct might, in a moral view, seem to have deserved, it is impossible to believe that they would not soon have recurred to so simple and agreeable a resource. In every age it is easy to find rich men who have done bad things for which the law has provided no punishment or an inadequate punishment. The estates of such men would soon have been considered as a fund applicable to the public service. As often as it was necessary to vote an extraordinary supply to the Crown, the Committee of Ways and Means would have looked about for some unpopular capitalist to plunder. Appetite would have grown with indulgence. Accusations would have been eagerly welcomed. Rumours and suspicions would have been received as proofs. The wealth of the great goldsmiths of the Royal Exchange would have become as insecure as that of a Jew under the Plantagenets, as that of a Christian under a Turkish Pasha. Rich men would have tried to invest their acquisitions in some form in which they could lie closely hidden and could be speedily removed. In no long time it would have been found that of all financial resources the least productive is robbery, and that the public had really paid far more dearly for Duncombe's hundreds of thousands than if it had borrowed them at fifty per cent.

These considerations had more weight with the Lords than with the Commons. Indeed one of the principal uses of the Upper House is to defend the vested rights of property in cases in which those rights are unpopular, and are attacked on grounds which to shortsighted politicians seem valid. An assembly composed of men almost all of whom have inherited opulence, and who are not under the necessity of paying court to constituent bodies, will not easily be hurried by passion or seduced by sophistry into robbery. As soon as the bill for punishing Duncombe had been read at the table of the Peers, it became clear that there would be a sharp contest. Three great Tory noblemen, Rochester, Nottingham and Leeds, headed the opposition; and they were joined by some who did not ordinarily act with them. At an early stage of the proceedings a new and perplexing question was raised. How did it appear that the facts set forth in the preamble were true, that Duncombe had committed the frauds for which it was proposed to punish him in so extraordinary a manner? In the House of Commons, he had been taken by surprise; he had made admissions of which he had not foreseen the consequences; and he had then been so much disconcerted by the severe manner in which he had been interrogated that he had at length avowed everything. But he had now had time to prepare himself; he had been furnished with advice by counsel; and, when he was placed at the bar of the Peers, he refused to criminate himself and defied his persecutors to prove him guilty. He was sent back to the Tower. The Lords acquainted the Commons with the difficulty which had arisen. A conference was held in the Painted Chamber; and there Hartington, who appeared for the Commons, declared that he was authorized, by those who had sent him, to assure the Lords that Duncombe had, in his place in Parliament, owned the misdeeds which he now challenged his accusers to bring home to him. The Lords, however, rightly thought that it would be a strange and a dangerous thing to receive a declaration of the House of Commons in its collective character as conclusive evidence of the fact that a man had committed a crime. The House of Commons was under none of those restraints which were thought necessary in ordinary cases to protect innocent defendants against false witnesses. The House of Commons could not be sworn, could not be cross-examined, could not be indicted, imprisoned, pilloried, mutilated, for perjury. Indeed the testimony of the House of Commons in its collective character was of less value than the uncontradicted testimony of a single member. For it was only the testimony of the majority of the House. There might be a large respectable minority whose recollections might materially differ from the recollections of the majority. This indeed was actually the case. For there had been a dispute among those who had heard Duncombe's confession as to the precise extent of what he had confessed; and there had been a division; and the statement which the Upper House was expected to receive as decisive on the point of fact had been at last carried only by ninety votes to sixty-eight. It should seem therefore that, whatever moral conviction the Lords might feel of Duncombe's guilt, they were bound, as righteous judges, to absolve him.

After much animated debate, they divided; and the bill was lost by forty-eight votes to forty-seven. It was proposed by some of the minority that proxies should be called; but this scandalous proposition was strenuously resisted; and the House, to its great honour, resolved that on questions which were substantially judicial, though they might be in form legislative, no peer who was absent should be allowed to have a voice.

Many of the Whig Lords protested. Among them were Orford and Wharton. It is to be lamented that Burnet, and the excellent Hough, who was now Bishop of Oxford, should have been impelled by party spirit to record their dissent from a decision which all sensible and candid men will now pronounce to have been just and salutary. Somers was present; but his name is not attached to the protest which was subscribed by his brethren of the junto. We may therefore not unreasonably infer that, on this as on many other occasions, that wise and virtuous statesman disapproved of the violence of his friends.

In rejecting the bill, the Lords had only exercised their indisputable right. But they immediately proceeded to take a step of which the legality was not equally clear. Rochester moved that Duncombe should be set at liberty. The motion was carried; a warrant for the discharge of the prisoner was sent to the Tower, and was obeyed without hesitation by Lord Lucas, who was Lieutenant of that fortress. As soon as this was known, the anger of the Commons broke forth with violence. It was by their order that the upstart Duncombe had been put in ward. He was their prisoner; and it was monstrous insolence in the Peers to release him. The Peers defended what they had done by arguments which must be allowed to have been ingenious, if not satisfactory. It was quite true that Duncombe had originally been committed to the Tower by the Commons. But, it was said, the Commons, by sending a penal bill against him to the Lords, did, by necessary implication, send him also to the Lords. For it was plainly impossible for the Lords to pass the bill without hearing what he had to say against it. The Commons had felt this, and had not complained when he had, without their consent, been brought from his place of confinement, and set at the bar of the Peers. From that moment he was the prisoner of the Peers. He had been taken back from the bar to the Tower, not by virtue of the Speaker's warrant, of which the force was spent, but by virtue of their order which had remanded him. They, therefore, might with perfect propriety discharge him.

Whatever a jurist might have thought of these arguments, they had no effect on the Commons. Indeed, violent as the spirit of party was in those times, it was less violent than the spirit of caste. Whenever a dispute arose between the two Houses, many members of both forgot that they were Whigs or Tories, and remembered only that they were Patricians or Plebeians. On this occasion nobody was louder in asserting the privileges of the representatives of the people in opposition to the encroachments of the nobility than Harley. Duncombe was again arrested by the Serjeant at Arms, and remained in confinement till the end of the session. Some eager men were for addressing the King to turn Lucas out of office. This was not done; but during several days the ill humour of the Lower House showed itself by a studied discourtesy. One of the members was wanted as a witness in a matter which the Lords were investigating. They sent two judges with a message requesting the permission of the Commons to examine him. At any other time the judges would have been called in immediately, and the permission would have been granted as of course. But on this occasion the judges were kept waiting some hours at the door; and such difficulties were made about the permission that the Peers desisted from urging a request which seemed likely to be ungraciously refused.

The attention of the Parliament was, during the remainder of the session, chiefly occupied by commercial questions. Some of those questions required so much investigation, and gave occasion to so much dispute, that the prorogation did not take place till the fifth of July. There was consequently some illness and much discontent among both Lords and Commons. For, in that age, the London season usually ended soon after the first notes of the cuckoo had been heard, and before the poles had been decked for the dances and mummeries which welcomed the genial May day of the ancient calendar. Since the year of the Revolution, a year which was an exception to all ordinary rules, the members of the two Houses had never been detained from their woods and haycocks even so late as the beginning of June.

The Commons had, soon after they met, appointed a Committee to enquire into the state of trade, and had referred to this Committee several petitions from merchants and manufacturers who complained that they were in danger of being undersold, and who asked for additional protection.

A highly curious report on the importation of silks and the exportation of wool was soon presented to the House. It was in that age believed by all but a very few speculative men that the sound commercial policy was to keep out of the country the delicate and brilliantly tinted textures of southern looms, and to keep in the country the raw material on which most of our own looms were employed. It was now fully proved that, during eight years of war, the textures which it was thought desirable to keep out had been constantly coming in, and the material which it was thought desirable to keep in had been constantly going out. This interchange, an interchange, as it was imagined, pernicious to England, had been chiefly managed by an association of Huguenot refugees, residing in London. Whole fleets of boats with illicit cargoes had been passing and repassing between Kent and Picardy. The loading and unloading had taken place sometimes in Romney Marsh, sometimes on the beach under the cliffs between Dover and Folkstone. All the inhabitants of the south eastern coast were in the plot. It was a common saying among them that, if a gallows were set up every quarter of a mile along the coast, the trade would still go on briskly. It had been discovered, some years before, that the vessels and the hiding places which were necessary to the business of the smuggler had frequently afforded accommodation to the traitor. The report contained fresh evidence upon this point. It was proved that one of the contrabandists had provided the vessel in which the ruffian O'Brien had carried Scum Goodman over to France.

The inference which ought to have been drawn from these facts was that the prohibitory system was absurd. That system had not destroyed the trade which was so much dreaded, but had merely called into existence a desperate race of men who, accustomed to earn their daily bread by the breach of an unreasonable law, soon came to regard the most reasonable laws with contempt, and, having begun by eluding the custom house officers, ended by conspiring against the throne. And, if, in time of war, when the whole Channel was dotted with our cruisers, it had been found impossible to prevent the regular exchange of the fleeces of Cotswold for the alamodes of Lyons, what chance was there that any machinery which could be employed in time of peace would be more efficacious? The politicians of the seventeenth century, however, were of opinion that sharp laws sharply administered could not fail to save Englishmen from the intolerable grievance of selling dear what could be best produced by themselves, and of buying cheap what could be best produced by others. The penalty for importing French silks was made more severe. An Act was passed which gave to a joint stock company an absolute monopoly of lustrings for a term of fourteen years. The fruit of these wise counsels was such as might have been foreseen. French silks were still imported; and, long before the term of fourteen years had expired, the funds of the Lustring Company had been spent, its offices had been shut up, and its very name had been forgotten at Jonathan's and Garraway's.

Not content with prospective legislation, the Commons unanimously determined to treat the offences which the Committee had brought to light as high crimes against the State, and to employ against a few cunning mercers in Nicholas Lane and the Old Jewry all the gorgeous and cumbrous machinery which ought to be reserved for the delinquencies of great Ministers and Judges. It was resolved, without a division, that several Frenchmen and one Englishman who had been deeply concerned in the contraband trade should be impeached. Managers were appointed; articles were drawn up; preparations were made for fitting up Westminster Hall with benches and scarlet hangings; and at one time it was thought that the trials would last till the partridge shooting began. But the defendants, having little hope of acquittal, and not wishing that the Peers should come to the business of fixing the punishment in the temper which was likely to be the effect of an August passed in London, very wisely declined to give their lordships unnecessary trouble, and pleaded guilty. The sentences were consequently lenient. The French offenders were merely fined; and their fines probably did not amount to a fifth part of the sums which they had realised by unlawful traffic. The Englishman who had been active in managing the escape of Goodman was both fined and imprisoned.