heir 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