not holding the appointment of queen's counsel, have for many years been in a small minority,* and the serjeants who formerly attached themselves exclusively to the Court of Common Pleas, did not seek the distinction of sitting within the Bar of the other courts ;t but since all the courts of Westminster Hall have been indifferently opened to all the Bar according to their rank and seniority, a different state of things has arisen. The royal warrant of 1834 expressly conferred on all the then existing serjeants precedence and preaudience in all the courts over all subsequently made king's counsel. The 9 & 10 Vict., c. 54, which affected the other objects aimed at by this warrant, left the question of precedence and preaudience of the serjeants as it was made. By the regulation already referred to in the Courts of Queen's Bench and Exchequer, the privilege has been with a very good grace conceded to all serjeants of sitting within the Bar, and they now enjoy this distinction in all courts as they always did in the Court of Common Pleas. This very just concession to the serjeants leaves altogether open all questions of precedence and preaudience. The precedence of the serjeants for some purposes is warranted by positive law. The precedence and preaudience of gentlemen holding the appointment of queen's counsel are the result of usage and practice, and a special precedence and preaudience have been conferred on certain serjeants and barristers by special patent of precedence. The result is that some confusion and complication are occasioned in settling the exact precedence and preaudience of any of the order. * Up to 1827 the Inner Temple Benchers counted only six king's counsel among them, out of a Bench table of twenty-nine. At this day they have thirty-seven queen's counsel, and only two of the benchers are practising at the Bar without an appointment from the Crown. Well might it be remarked by the benchers that they were deluged with silk." See per Sir F. Thesiger in Mr. Hayward's case, Report p. 135. 66 †The serjeants were on being called to that degree always admonished to keep the Common Pleas Bar. See the Exhortation, Dugdale, Orig. Jur. See as to this, 1 Edw. VI., c. 7, s. 3, and the authorities cited in the Serjeant's case, 8 Scott's Rep. 265 Appendix, and see the table of precedence prefixed to "Burke's Peerage." 1 A barrister called to the degree of serjeant has de facto precedence and preaudience over all other barristers not having a patent expressly conferring seniority on them; and the serjeants among themselves derive their seniority from the date of their call to that rank. A barrister appointed a queen's counsel practically at this day enjoys preaudience both over serjeants and other barristers not having such a special patent-the queen's counsel among themselves derive their seniority from the date of their appointment—but it has been the usage for many years for serjeants and barristers to obtain special patents of precedence varying their former position as regards all other serjeants and barristers; and the position at the Bar of the latter may thus be continually shifted. This confusion and complication might be very easily put an end to with great advantage to all concerned. * Let the rules of seniority of call which prevail among ordinary barristers apply also within the Bar. Let there be in future no provision for one gentleman in the front row jumping by virtue of a patent from the Crown oyer the heads of all the others. Let there be no more patents of precedence, but let those who have legitimately obtained a place within the Bar by virtue of their promotion in either of the three modes already referred to keep such place notwithstanding any fresh concession from the Crown to a new comer. By such an order of seniority being settled, all complications as to precedence and preaudience both at Westminster Hall and on circuit would be put an end to, without causing injustice to anyone. * Erskine and Pigott (afterwards Chief-Baron) were made king's counsel one day before Scott (Lord Eldon) who was the senior of both at the Bar. After a great deal of manoeuvring very special patents were made out to Scott and another senior who was promoted at the same time, giving them the precedence over Erskine and Pigott.-Mr. Twiss' "Life of Lord Eldon," Vol. i., p. 143. VOL. XVII.-NO. XXXIV. ART. II.-CAPITAL PUNISHMENT.-THE THE beneficial mitigation of the severity of our Penal Code, begun by the late Sir Samuel Romilly, and partly, though to a very small extent, effected during his life, was sure ultimately to occasion a public inquiry, as to the necessity for retaining the punishment of death for any offence. That inquiry has not arrived too speedily;* a demand for it having been accelerated by a flexible exercise, for several years, of the prerogative of pardon, whereby the law has been rendered in its operation very uncertain, and far more frequently non-capital than capital. In the debate on capital punishment in the House of Commons, on the 3rd of May last, on Mr. Ewart's motion, which resulted in the issuing of the above Commission, it is remarkable that arguments in favor of continuing the capital penalty founded on theology or natural justice, were almost entirely abandoned, one speaker only having alluded to what he considered to be the expressed will of the Almighty. It may therefore, it is believed, now be regarded as generally admitted (at least, by all persons familiar with those facts necessary to be known in order to arrive at a true solution of the question), that necessity can alone justify the State in visiting a citizen with death; consequently, that death inflicted for sentimental reasons only-for example, for the sake of vengeance, or from a sense of justice-is a proceeding utterly indefensible, and as irrational as is beheading the corpse of a traitor, or as an attempt to wash out blood by blood. It is believed, therefore, that it would be agreeable, if not to the whole nation, at least to a large and increasing number of the most respectable and best informed portion of it, if our laws could, consistently with the public welfare, be The expediency of a Royal Commission to inquire into the operation of capital punishment was suggested in 1860. See Law Amendment Society's papers, 17th Dec., 1860. rendered entirely non-capital. That innocent persons have occasionally been condemned and executed is a fact, alas! indisputable, and very recently some remarkable examples of the miscarriage of juries, in cases not capital, have reminded the public, that the possibility of the like fatal and irremediable error must exist, so long as the capital penalty is retained. One of the first, and perhaps the first, of the inquiries brought under the consideration of the Commissioners, will therefore be—whether there is from any and what cause a reluctance in juries to convict on trials for capital offences; and whether any distinction is made by juries when the victim of murder is an infant; and if, contrary to our anticipations,* it should be found that there is no such reluctance, and that human life is equally protected at all ages from malicious attempts to destroy it,-advocates for the abolition of capital punishment will no longer be able to avail themselves of the reluctance of juries to convict, as one of their favourite arguments; but on the other hand, should such reluctance be found to exist, and should it appear that human life is not equally protected from murder at all ages, and that from these causes guilt is likely to escape, and occasionally escapes, conviction, it appears difficult to continue for any beneficial purpose the capital penalty. Whether it should be continued depends, however, upon many other considerations besides those last referred to. At present as regards malicious homicides the law is, and has been for several years, theoretically capital, but in the great majority of convictions practically noncapital, and hence it may be predicated that the Commissioners will recommend either the abandonment of the death penalty, or surround the sentence of death with such new circumstances, as will, if possible, render the infliction of it satisfactory to the public. *From 1858 to 1862 convictions for murder were 322 out of 1,000; for all other offences 755 out of 1,000.-Communicated by H. T. Humphreys, Secretary to the Anti-Capital Punishment Association. The causes that produced the Commission may be stated to be, first, the increased regard for human life arising from many years of domestic tranquillity and the consequent progress of the nation in humanity and civilisation; secondly, the belief that the death punishment is either not a deterrent, or if a deterrent, is attended with circumstances that render its infliction productive of more evil than good, or that it is, as a deterrent, not greater than, or so great as, hopeless penal imprisonment or hopeless penal servitude for life would be; thirdly, the co-existence with the two former causes of an irresponsible power in the Crown to stay the executioner's hand, after the convict has been sentenced to die. The word "irresponsible" is used because the power has been exercised on allegations brought ex parte to the notice of the Crown, without any public investigation, and in the absence of any agent to protect the public welfare. The first of the foregoing causes, operating on the last, has now for some years occasioned frequent and extraordinary public manifestations for mercy where the slightest doubt of guilt has appeared to exist, and in cases even where the Court has been satisfied with the verdict. It has also caused the law to be administered, not on an uniform principle, but on a principle vibrating in its movements according as it is operated upon by the public, or a portion of the public. Hence, one murderer has been executed, whilst another, for an offence precisely equal in degree, has escaped. In some cases an inquiry after verdict and sentence of death is made, in others not, although justice requires that if further inquiry be allowed in any case, it should be made in all, since all verdicts are fallible. Now a penal law ought not to be varied in its operation, for to the extent to which it is relaxable, it ceases to be penal; and yet having regard to public opinion, the death penalty can at present be carried out, in a comparatively few cases only. Thus the deterrent effect of the law, if such deterrent effect exist, is so uncertain as to be reduced to a minimum. The second of the three before mentioned causes that occa |