t 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 t