Further, look to the Dominions and to the U.S.A., each with its jury system. It may be said that this is pure conservatism— perhaps even sentimentalism. It is difficult to think that there is no more in it than that. The English colonists of America may, perhaps, have adopted the system for lack of a better expedient at the time, but that will not account for its deliberate adoption many years later as an integral part of the American Constitution, yet now the right to trial by jury is incorporated in the form of express guarantees in all the Constitutions both State and Federal.

Again, if the system be, as some would suggest, a pitting of the professional against the lay mind, it would be unnatural to expect to find the former among the system's protagonists; it is unlikely they would take part in belittling the abilities and power of their own class. This view is surely negatived by such opinions as those stated by Lords Justices Bankes, Scrutton, and Atkin in a recent case in the Court of Appeal, where they expressed themselves as greatly concerned at the inroads made into the right of trial by jury—a right of which Lord Justice Atkin spoke as an essential principle of our law, a bulwark of liberty and a shield of the poor from the oppression of the rich and powerful." (And this of an institution in origin a creation of royal prerogative for royal purposes !)

To conclude, this is not a question in which arguments can be marshalled with mathematical precision. Indeed, what one may regard as an argument for, another may rely on as an argument against the system. But it is submitted that, as no clear case can be made out on either side, the balance of advantage is heavily in favour of a continuance of the system. This indeed is all that can, or need be, said in favour of any part of any legal procedure -that in the main it secures justice and equity more than any other system would do.

If, then, trial by jury be desirable, it follows that it should be easily obtainable. This does not preclude, nor is it likely that anyone would wish to preclude, provisions being made for other methods of trial. These should be limited to special classes of cases, which cases should be clearly defined, and not left to the ambiguity inseparable from terms such as "convenience" and "discretion." Trial by jury would then once again become a right, for such a trial would be the norm, and other modes the exceptions.

THE JUDICIAL RECOGNITION OF CUSTOM IN INDIA.

[Contributed by LINDESAY J. ROBERTSON, Esq.]

ALL authorities are agreed as to the great importance of custom and usage in modifying, and in some cases in wholly superseding, the established rules of Hindu and Mohammedan Law.

The existence and importance of the peculiar customs and usages to be found in all parts of India have been emphasized, over and over again, both in Acts of the Legislature and in judicial decisions.

The British Raj has, indeed, always shown the most tender solicitude not to interfere with, or to fail in giving due recognition to, such customs and usages as have become part and parcel of the rules of the communities where they prevail.

This attitude on the part of the Legislature and the Courts of Justice may best be indicated by one or two examples.

Thus, in a Bombay Regulation of 1827 it was laid down that the law to be observed in the trial of suits shall be Acts of Parliament, and Regulations of Government applicable to the case. In the absence of such Acts and Regulations, the usage of the country in which the suit arose. If none such appears, the law of the defendant, and, in the absence of specific law and usage, justice, equity, and good conscience alone."

Again, in the Punjab Laws Act of 1872, as regards a great variety of topics, it is enacted that the first rule of decision shall be " any custom applicable to the parties concerned."

The following passage illustrates the attitude adopted by the Privy Council1: "Their Lordships are fully sensible of the importance and justice of giving effect to long-established usages existing in particular districts and families in India, but it is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable."

In a very early case decided in Calcutta, Grey C.J. stated, "I have no hesitation in saying that we are bound to take notice

1 Ramalakshmi v. Sivanantha, 14 Moo., I.A. 570, at p. 585 (1872).

of any special customs which may exist among the Hindus, or which can be considered as the law of any particular part of the country." It will be noticed, on reference to the words in italics occurring in these illustrations, that the terms "custom" and usage are used as though they were interchangeable and synonymous.

But are they synonymous? Turning to Lord Halsbury's ། Laws of England, vol. x, p. 218, we find "custom" described as a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although contrary to, or not consistent with, the general common law of the realm." And again: "Custom is unwritten law peculiar to particular localities."

Turning now to the term "usage," we find the same authority (pp. 248-50) saying: "A usage may be broadly defined as a particular course of dealing, or line of conduct generally adopted by persons engaged in a particular department of business life. . . . "A usage differs from an immemorial custom in this respect, for the Flatter (i.e. the custom) must be local" (vide p. 250). On the other

hand, a usage may extend beyond the limits of the realm, or only within a local area, however small; or, again, a usage may extend throughout all engaged in a particular business, or only exist in respect of a very limited class" (ibid., p. 250).

Turning back for a moment to our illustrations, we find that the Bombay Regulation speaks of "the usage of the country"; the Punjab Act of the "custom of the parties."

But the judges cannot complain of the Legislature in this respect, for the Privy Council refer to "the usages of particular districts," and the Calcutta Chief Justice speaks of the "customs of Hindus."

This laxity and variance in the use of terms is by no means without its dangers and inconveniences. To quote Lord Halsbury's compilation again (p. 221): "Immemorial local customs are clearly distinguishable from particular trade or local usages, although in practice frequently confused with them .. they lack three of the distinguishing features of customs properly so called."

"First: they (i.e. usages) need not have existed from time immemorial. Second: they need not be confined to a particular locality. Third: usages however extensive, if contrary to positive law, will not be sanctioned by the Courts, while customs may be inconsistent with the general law of the realm." And again at 1 Jagmohun v. Srimati, Montriou's Cases of Hindu Law, p. 596 (1831).

p. 252 "It is no objection to usage that it cannot be shown to have existed from time immemorial. Evidence of such existence is not required."

This discrimination in the use of the terms "custom" and usage" is doubtless much to be desiderated, but it can hardly be said to have been always observed even by the most distinguished judges. For instance, Blackburn J., in Crouch v. Crédit Foncier, is reported to have said1 (the italics, of course, are not in the originals from which the quotations are taken):

"We have only further to consider whether the custom or practice of trade to treat such instruments as negotiable makes any difference. Incidents may be annexed by custom, however recent, provided they are tacitly incorporated in the contract. If the wording . . . excludes this tacit incorporation no usage can annex the incident."

The translators of the ancient Hindu Legal Codes have suffered from the same infirmity.

Thus, to take the famous passage of Manu (chap. i, s. 108), which perhaps is more often quoted than any other-" Immemorial usage is transcendent law "-followed by s. IIO: "Holy sages, well knowing that law is grounded on immemorial custom, embraced, as the root of all piety, good usages long established."

The words "usage" and "custom" in these passages are adopted interchangeably by translators. Indeed, Mr. Mayne, in his work on Hindu Law,' quotes Sir William Jones as translating the earlier passage, Immemorial usage," whereas in Mr. Grady's edition' it is translated " Immemorial custom."

Similar instances could be multiplied indefinitely from translations of other Codes, but this one illustration is sufficient to show that no distinction is recognized by translators or text writers between custom and usage, and it is also sufficient to demonstrate the supreme importance of custom or usage in Hindu Law. As an eminent Punjab judge once put it, “Hindu Law is itself a great system of customary law, eventually reduced to writing as a code of substantive personal law."

With regard to this use of the expression "personal law,” an important pronouncement has recently been made by the Privy Council in Balevant Rao v. Baji Rao. The head-note to that case

1 L.R. 8 Q.B. 374, at p. 386 (1873).

• Mayne's Hindu Law (1914), P. 47.

• Grady's edition of Sir William Jones's translation of Manu (1869), p. 12.

runs as follows: "The particular doctrines of Hindu Law recognized in a province of India become part of the status of every family governed by them, and continue to govern the family upon migration to a province where a different doctrine prevails, unless there is proved a renunciation of the original law for that of the place migrated to. Decisions given by the Courts after the migration declaring what was the correct doctrine in the place migrated from, affect the migrated members, but not customs there incorporated into the law after the migration.'

This case shows how, in India, a Hindu or Mohammedan carries his personal law with him wherever he goes, and also that it can be renounced.

The Punjab Court has recently emphasized the fact that this personal law, by which is generally meant the law of the particular school or sect to which the party belongs, must, in that province at least, take a secondary place. Thus, in case 110, P.R. 1906, the Court is reported to have decided that "among parties who generally follow the principles of customary law the Court is justified in falling back as a last resort on their personal law (i.e. Hindu or Mohammedan Law) for the decision of the point at issue, if no definite rule of the former law (i.e. custom) applicable to the case before it can be found.”

This was the decision of the Full Bench as embodied in the head-note, but Robertson J., in a passage which Lord Buckmaster thought so aptly and expressly declared the true relation of the necessity of proof as between customary and established law that he embodied it in his judgment,1 viewed the matter in a distinctly different light. He said: "In all cases it appears to me under this Act, it lies on the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further, to prove what the particular custom is. There is no presumption created by the clause in favour of custom; on the contrary, it is only when the custom is established that it is to be the rule of decision. The Legislature did not show itself enamoured of custom rather than law, nor does it show any tendency to extend the 'principles' of custom to any matter to which a rule of custom is not clearly proved to apply. It is not the spirit of customary law, nor any theory of custom or deductions from other customs which is to be a rule of decision, but only any

1 Abdul Hussein Khan v. Bibi Sona, 45 I.A. 10 (1917), quoting 1906 P.R. No. 110 P. 410.