Then for additional positive arguments in favour: juries pay much attention and show great anxiety to arrive at a right verdict; the professional view is corrected and tempered by the opposite tendency of a lay jury, and the knowledge of this tends to keep harsh and oppressive cases out of court, whilst it also keeps the judge "alive, impartial and interested"; the system familiarizes the public with the law and popularizes it, so that its members will not be so inclined to dispute a verdict, with the further result that the public relies on justice being done; the jury bring to their consideration of the case a more varied stock of knowledge than it is possible for the judge to possess; if a jury err on facts, no less can a judge, whilst if the jury bring in a verdict against the weight of evidence there is still the remedy of a fresh trial.

"

The Commissioners decided that a jury was (a) " unnecessary in cases which turned on the legal effect of evidence or undisputed facts, and in which the verdict of the jury must depend on the direction of the judge, and (b) " mischievous" in cases which it was found necessary to withdraw from the jury and submit to arbitration, "including all cases of detailed accounts in which figures and vouchers must be referred to." Accordingly they recommended the two modifications referred to above, but subject to these their decision, after consideration of all the arguments adduced, was in favour of the jury.

What else then can be said against the system ? It would be hard to find a more determined opponent than a modern writer (Mr. Melius de Villiers), who says: "In the interest of right and justice the system of trial by jury should be abolished, and the sooner the better." 1 To support such an unqualified statement it is justifiable to assume that the most weighty arguments will be produced, but nothing more is found than that (a) the administration of justice should be both swift and sure and such as inspires universal and implicit confidence. But in what way does a jury necessarily militate against such an undeniably desirable quality of the law? (b) That it is said that a jury will be moved by sympathy, and that sympathy is out of place in the administration of justice. But this is a weakness which may none the less belong to a judge, and the members of a jury are likely to supply a corrective wanting in the case of a single arbiter. (c) That a jury may be influenced by counsel who is the "glibbest talker," but not the most profound lawyer. But is not this forgetting the function of the judge in a jury trial?

These propositions, not of themselves of great consequence, are reinforced in Mr. de Villiers' argument by four examples of inequitable jury verdicts. It would be unfair to accept them-or to reject them-without fuller knowledge of all the circumstances; but even if they be given full weight it is submitted that not even the most enthusiastic supporter of the jury system but would acknowledge that a jury in theory may, and in practice does, from time to time produce astonishing verdicts. But what cause exists in any sphere of life against which no particular instances can be adduced? How many verdicts are recorded each year that pass without notice because they are fair and equitable ? It is submitted that this is not a case where argument from the particular to the general can be applied, and that the indignation aroused by an unfair verdict is in itself a tribute to their general level.

So far, then, it does not seem that sufficient valid reasons have appeared to justify the abolition of the system. It is true that nothing has been said as to the great practical difficulties of the cost involved, the lengthening of the hearing of a case and the demands made upon the time of jurors. The primary consideration is, of course, the attainment of justice, and, this being so, other considerations must be subordinated if the main purpose be thus fulfilled. Is this so? It may be urged that much that has been said has been of a negative character. What more can be said as to the positive value of a jury? for there can be no good purpose served in retaining a system which is merely harmless. It is obvious that the question is largely a psychological one, both objectively and subjectively, and in the latter aspect men will be inclined to draw differing conclusions from the same considerations according to their skill in analysing the complex factors of the situation and also it is to be feared-according to their presuppositions.

A sharp line of cleavage is sometimes drawn between the jury in civil and the jury in criminal cases, but in fact the underlying principles are the same. It surely cannot go for nothing, in considering the advisability of abolishing the jury in civil cases, that a serious proposal for such an abolition in criminal cases remains yet to be made. There are occasions of national emergency, as in the recent war, when it is thought necessary to restrict the right, but there can be no question that the nation looks on such restrictions as necessary evils to be removed at the first opportunity.

Further, look to the Dominions and to the U.S.A., each with its jury system. It may be said that this is pure conservatismperhaps 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.

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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

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." 1 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 latter (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."

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"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).