inseparably attendant on a state of slavery, and derives therefrom increased conviction of the propriety of the resolutions of May 16, 1823 [in favor of ameliorating the condition of the slave population in the colonies, so as gradually to prepare them for freedom]; but that, however desirable it is that the law under which the late trials took place should be amended, it does not appear to this House expedient or safe to impeach sentences passed by competent tribunals upon persons brought to trial according to law, and convicted by juries impanelled and sworn to give a verdict according to the evidence laid before them."

The words italicized, and the cold, cautious tone of Canning's speech, stirred Denman to indignation, and he made a vehement and powerful reply, in the course of which he said:

"We are told that the system of the law ought to bear all the blame. Is it to be endured that public functionaries should thus carry unjust sentences into execution in such a precipitate manner, and the House should do nothing more than coolly say that all the blame rested with the system? Is the House prepared to say that it never would inquire into any judicial proceedings in which, although the essence of justice had been violated, the forms had been complied with? If so, he must protest against a doctrine so utterly unconstitutional. Whatever forms had been observed in the case of these eight slaves, the substance of justice had been denied to them, and eight men were consigned to death who ought not to have suffered. It was proved that four of them were convicted on the evidence of a perjured rogue and robber, and that one was executed after the Governor was aware of the infamy of the witness."

Notwithstanding the atrocious nature of the case, Denman's motion was rejected by a majority of 40, the ayes being 63 and the noes 103.

Afterwards, on the suggestion of Brougham, Canning consented to alter his amendment by omitting that portion of it above printed in italics, and thus modified it passed nem. con.

1

1 Hansard, Parl. Deb. N.S. vol. xiv. pp. 1007-1074.

On April 25, 1826, Mr. George Lamb renewed the motion he had made two years before for leave to bring in a Bill enabling persons prosecuted for Felony to make their defence by counsel.

Denman's speech in favor of the motion concluded with the following query:

"He would just add, suppose any one of the honorable gentlemen present were put upon his trial for felony -and it should be remembered that the chances against that event were not so utterly improbable as might be imagined, for human nature is frail, and the highest in station might yet be levelled with the lowest—if such an event should happen, would he not wish for counsel to defend him? and if he felt the necessity of having legal assistance in his own case, why should he withhold that advantage from others ? 1

The motion was lost by a majority of 69, the ayes being only 36 and the noes 105!

The last occasion on which Denman addressed the House in the then Parliament was on May 19, 1826, on Brougham's motion for an inquiry into the state of slavery in the West Indian colonies. He rose amid loud calls for a division, and, after persevering for some time, was at length prevented by the impatience of the House from proceeding further.'

Thus, his last exertion in the House of Commons during this period of his parlimentary life was an effort, however unsuccessful, to mitigate the sufferings of the slave population in the West Indies-a cause which he never abandoned, and to which, as will be seen hereafter, he devoted all the energies of his maturer powers, after his elevation to the House of Lords.

Parliament was prorogued, immediately previous to its dissolution, on May 31, 1826. Denman, for reasons already explained in the personal narrative, did not seek re-election in the new House of Commons.

1 Hansard, Parl. Deb. N.S. vol. xv. pp. 590-633. Sydney Smith, in one of his inimitable articles in the "Edinburgh Review" on this subject, suggested that some honorable member-"we ask but one"-should be patriotic enough to commit some act which would unfortunately necessitate his appearance in the dock as a felon, in order that he might feel himself, and prove to the world at large the inconvenience of being deprived, under such circumstances, of counsel's assistance.

2 Hansard, Parl. Deb. N.S. vol. xv. pp. 1352-1356.

D

A.D. 1824 TO 1828. ET. 45 TO 49.

ENMAN was always interested in, and took an active part in promoting, the Amendment of the Law, both civil and criminal. His exertions in Parliament for this purpose have already been mentioned, but they by no means comprise all his efforts for the accomplishment of this important object.

1

In 1824 he contributed to the "Edinburgh Review" a very able paper on Bentham's "Treatise on Judicial Proof," which had the effect of awakening public attention to several of the defects then existing in the English law of evidence and procedure-defects which he himself, as a legislator, did much in subsequent years to remove.

From this article some passages remarkable for a spirit of enlightened liberality very uncommon with English lawyers in those days, with whom it was the fashion to regard our Law of Evidence as the peculiar glory of our judicial system, may here be inserted. Admitting that in all systems of legal procedure some rules of evidence must be laid down, he thus proceeds:

"But we are far from intending here to express unqualified admiration for that particular set of rules which has been adopted, and seems so highly favored in English courts of law. On the contrary, we rise from an ex

"Edinburgh Review," March, 1824. Art. viii. pp. 169-207. "Traité des Preuves judiciaires. Ouvrage extrait des manuscrits de M. Jérémie Bentham, Jurisconsulte anglais, par Et. Dumont, etc. 2 vols. Paris, 1823.

amination of Mr. Phillip's treatise on that subject—the latest, the ablest, and the most approved '—not more delighted by the fulness and precision of the learned author's collections, than we are often surprised by the reasonings and conclusions which he has undertaken to record. The clearness of his arrangement throws, in fact, too clear a light on the confusion of the numberless dicta which he has been obliged to transcribe from notes taken at Nisi Prius. The exclusion of testimony in many cases of minute interest, while in others it is freely admitted in spite of the most important temptation to deviate from the truth exhibits a contradiction hard to be conceived. In other cases the absolute rejection of light, because there is a possibility of its leading astray, is difficult to be explained on rational grounds. Take as example the case of forgery. Unless the crime has been committed in the presence of witnesses it can only be proved (in the proper sense of the word) by the individual whose name is said to have been forged. Yet that person is the only person whom the law of England prohibits from proving the fact. The trial proceeds in the presence of the person whose name is said to have been forged, who alone knows the fact, and has no motive for misrepresenting it. His statement would at once convict the prisoner if guilty, or, if innocent, relieve him from the charge; and he is condemned to sit by, hearing, the case imperfectly pieced out by the opinions and surmises of other persons, on the speculative question whether or not the handwriting is his. And this speculation, incapable under any circumstances of satisfying a reasonable mind, decides upon the life of a fellow-citizen, in a system which habitually boasts of requiring always the very best evidence which the nature of the case can admit.2

"Even where there is a real interest in the event of the suit, Mr. Bentham advises that the witness should be examined, and that the jury, making all rational allow

This was written in 1824, very many years before Mr. Pitt Taylor's masterly and enlightened work on the subject had thrown all other treatises on evidence entirely into the shade.

2 This absurd and anomalous exclusion of evidence has long since been done away with.

ances, should determine upon the extent to which his wishes may affect the credibility of his deposition.' We think him perfectly right; and are nearly prepared to carry this principle so far as to call upon the contending parties to testify to facts within their knowledge. The degree of hesitation that we feel arises chiefly from our inexperience as to the practice."

"Mr. Bentham truly observes that if all the exclusions that may be selected from the different codes were found co-existing in one it would be scarcely possible that an admissible witness to any fact whatever could be produced under that system. He is a warm advocate for throwing down all such exclusions-with one exception. He would protect the confidence between a Catholic priest and a confessing penitent. On the whole, we are much disposed to agree with him; but we would introduce two other exceptions in addition."

Denman then proceeds to state his opinion in opposition to Bentham's. I. That all confidential communications make by a client to his legal adviser ought to be sacred. 2. That married persons should be disqualified as witnesses for or against each other.

"This latter disqualification [he says] we should propose not entirely on account of that dread entertained by the English law of conjugal feuds, though these are frequently of the most deadly character; but the reason given in the case of the priest applies, for the confidence. between married persons makes their whole conversation an unreserved confession, and they also could never be contradicted but by the accused, while external circumstances might be fabricated with the utmost facility to give apparent confirmation to false charges. But our stronger reason is, that the passions must be too much alive, where the husband and wife contend in a court of justice, to give any chance of fair play.to the truth. It must be expected as an unavoidable consequence of the connection by which they are bound that their feelings,

1 Exclusion of testimony on the ground of interest was abolished by the Act of 1843, commonly called Lord Denman's Act, 6 and 7 Vic. c. 85.

2 This further extension of the principle was, with Lord Denman's entire approval, carried out by the Legislature in 1851, by the 14 and 15 Vic. c. 99, generally known as Lord Brougham's Act; see post.