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pitying scarce regrets her blindness? The danger here existing can to some extent be met by greater care, greater caution in the Judge's summing up in any case in which the danger is apprehended. The Writer can bear testimony that his monition was not unheeded, when he warned his jurors that their consciences were concerned only with the truth of their expressed belief or disbelief in the evidence, that the responsibility of the punishment rested with the Legislature and the Judge.
The danger from the incapacity of the jurymen to grasp the points of the case and understand and apply the law is one that can be largely controlled by the capacity of the Judge. When the law is lucidly explained to them and their minds are rightly directed to the real points in the case, average jurymen in the great majority of cases find no difficulty in coming to a conclusion ; and the quickminded Bengali is not below the average in this respect. When the law is not understood and an untrained mind without a guide has to deal with a complicated mass of facts and statements not properly digested or reduced to order, bewilderment ensues, and the bewildered mind, unable to see its way to a conclusion, extricates itself from the darkness and doubt by the verdict thought least likely to do anybody any harm-a verdict of acquittal.
When jury trial was first introduced in the provinces, the verdict of the jury was conclusive upon the facts; and in case of appeal by the prisoner could be reviewed by the High Court only upon a question of law. A certain number of failures of justice, however, satisfied the Legislature after ten years' experience that a jury in Bengal could not be placed in exactly the same position as a jury in England without risk to the interests of justice. It was accordingly provided in 1872 that when the Sessions Judge disagrees with the verdict of the jurors or a majority of them, and considers it necessary for the ends of justice to do so, he may submit the case to the High Court. In the last amended Code of 1882 these provisions are still more definite—“ when he disagrees . . . . so completely that he considers it necessary for the ends of justice to submit the case to the High Court, he shall submit the case accordingly, recording the grounds of his opinion.” In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal ; but it may acquit or convict the accused of any offence of which the jury could have convicted him ; and, if it convicts him, may pass such sentence as might have been passed by the Sessions Judge. These provisions so largely modified jury trial in the Bengal Mofussil that it may be said, that the very essence of the institution was gone and the name alone remained. This observation has still more truth when we learn that the jury consists not of the timehonoured twelve, but of such uneven number not being less than three or more than nine as the Local Government may direct for each district—and further that it is not necessary that the jurors should be unanimous, but the opinion of the majority will suffice for a verdict. It may also be mentioned that the jury are not locked up as in England, but are allowed to disperse for refreshment, and, if the case lasts over one day, to go to their homes or lodgings at night. *
The powers given to the High Court in 1872 and more largely defined in 1882 excited no popular outcry. The people have confidence in the High Court, and would probably raise no objection to any further power in the same direction given to this tribunal, which exercises its functions openly in the sight of all men—a strong ground of confidence to the natives of India. That the powers already given, if effectually used by Sessions Judges and the High Court, are large enough to prevent any serious detriment to the interests of justice by the system which still continued to be called trial by jury in Bengal, would
* The Code of 1882 indeed empowered the High Court to make rules for keeping the jury together, when the trial lasted more than one day; but the power was not exercised up to my retirement, nor, I believe, since.
however appear to most persons competent to form an opinion to be a proposition not admitting of doubt. The burden of proving the negative of this proposition lies upon those who say that the privilege of trial by jury in the form in which it has existed since 1872 or since 1882 ought to be taken away in whole or part. The issue into which the whole question resolves itself is then a very simple one-Has it been proved by the experience of the last ten years that the retention of the privilege, as modified by the legislation of 1882, is so seriously prejudicial to the interests of justice that it has become the duty of the Government to take it away wholly or in substantial part ?
When the Executive Government reduced its policy of action to this issue, and began to consider the expediency of wholly or partly abolishing jury trial, it was to be expected that the High Court of the province would be consulted as to the wisdom and necessity of this course of action. It cannot be controverted that the opinions of the Judges of that Court should have been asked, and should have had the greatest weight with those who had the legal power to act. Amongst those Judges are two Hindu gentlemen, who would have looked at the matter from the point of view likely to be taken by the Hindu community, and would have been able to enlighten the Government as to the feelings and wishes of that community. Yet we find that upon the essential question the Judges were not consulted. In May 1890 they were indeed asked for their opinions, (1) as to how the system of trial by jury has worked ; (2) as to its merits as a means for the repression of crime ; and (3) as to what improvements, if any, are called for in its application. They were not asked to say if in their opinion the experiment had so far failed that the Legislature ought to retrace its footsteps—they were not asked whether, in their opinion, the working of the system, as modified and safeguarded in 1872 and 1882, was detrimental to the administration of criminal justice that in the interests of good government it ought to be abolished
in whole or part. Their published opinions show that they were not considering any such question, but directed their minds, according to the tenor of the questions asked them, to certain suggestions for amending and improving the existing system. Unfortunately then the action of the Executive derives no support from that important quarter, where advice should first have been sought.
Let us now understand exactly what has been done. By the notification of the 20th October last the LieutenantGovernor of Bengal has abolished trial by jury in the seven districts already mentioned in regard of the following offences :
(a) Offences against the Public Tranquillity (being No. (1) of the classes given above, p. 311, to which jury trial was applied in 1862);
(B) Offences affecting the Human Body (being No. (3) of the above classes), with the exception of kidnapping, abduction and rape ;
(y) Forgery and using forged documents, coming under class (5) above ;
(8) So much of Class No. (6) above as is concerned with abetment and attempts of offences under (a), (B) and (y).
At the same time jury trial has been extended to Offences relating to Marriage (Chapter XX. of the Penal Code), to which it did not before apply, and which include bigamy and adultery, the latter being a criminal offence in India. Roughly speaking, according to a numerical estimate, the number of offences falling under the classes in respect of which jury trial has been abolished, is about half of the total number triable by jury before the Notification ; but inasmuch as the offences withdrawn from the cognizance of juries are the most serious in the Calendar, a numerical estimate does not afford an adequate test of the change.
It is proper to point out that the Lieutenant-Governor of Bengal has acted strictly within the law in issuing the Notification of the 20th October. He has done more. By submitting his proposed action to the Supreme Govern
ment beforehand, he has safe-guarded his own position ; and if only the papers on the subject, which were published a fortnight afterwards, had appeared simultaneously with the Notification, public criticism could not have assailed the method of doing the thing, and must have confined itself to the thing done.
It may be scarcely necessary to say that the Notification does not affect jury trials at the Calcutta Sessions of the High Court, nor does it in any way affect European Britishborn subjects. There is, however, a considerable class of Europeans and Americans which it does affect. Tea and other industries, which have been started in the Hills and other places throughout India, have attracted thither Americans and men of almost all European nationalities. The wishes and feelings of this portion of the community were considered by those able men, whose names are associated with the great Indian Codes; and it was provided that in every case triable by jury, in which a European (not being a European British-born subject) or an American is the accused person, not less than half the number of jurors shall, if practicable, and if such European or American so claims, be Europeans or Americans. The privilege thus conferred is taken away by the Notification as regards those offences in respect of which jury trial is abolished — a change which may appear all the more disagreeable and unreasonable to those concerned, as Sessions Judges may in the near future cease to be Europeans.
In examining the case made in support of the withdrawal of the most serious offences from trial hy jury in Bengal, we labour under some difficulty, as same statistics have not been used by all parties to the controversy. We should be sorry to overlook any evidence which may be, or has been, adduced in support of the course of action adopted ; and we have therefore been careful to collect all such evidence procurable. We have first a set of figures supplied by the Registrar of the Calcutta High Court, and quoted in the Minutes of the Judges. According to these figures 1,708