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.