The Story of Nuncomar and The Impeachment of Sir Elijah Impey (Volume 2) - Sir Fitzjames James Stephen

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THE
STOEY OF NUNCOMAE
AND THE IMPEACHMENT OF
SIE ELIJAH IMPEY
vi>
^^.-u^-^-
THE
STOKY OF NUNCOMAR
SIE ELIJAH IMPEY
BY
SIR
JAMES FITZJAMES STEPHEN,

One of
the
K.C.S.I.
Judges of
tlie
High Court of Justice
Queen's Bench JDivision
IN
TWO VOLUMES
VOL.
II.
HonUon
MACMILLAN AND
1885
Tlie
CO.
Right of Translation and Reproduction
is
Reserved
Richard Clay and Soks, bread street hill, london, And at Bungay, Suffolk.
e.c.
^^10
?
CONTENTS.
CHAPTER
The Impeachment of Impey
IX.
PAOB
1
CHAPTER
Nris'soMAii's Petition
X.
PI
CHAPTER
XT.
Of the'Quaekel between the Governor-General in Council AND THE Supreme Court 124
CHAPTER
The Patna Cause
XII.
163
CHAPTER XIIL
The Supreme Court and the Europeans
Touchet's Petition
in Calcutta.
1!>9
CHAPTER
The Ccssijurah
Causp.
XIV.
209
vi
CONTENTS.
CHAPTER XV.
PAGE
The Suddek Diwani Adalat
221
CHAPTER
The Lucknow Affidavits
XVI.
:......
XVII.
-
256
CHAPTER
Barwell's Letters
273
INDEX
297
THE
STOKY OF NUNCOMAE
SIE ELIJAH IMPEY
CHAPTER
IX.
THE IMPEACHMENT OF IMPEY.

In the preceding chapters I have related in the fullest which I have been able to discover
detail every incident
connected with Nuncomar's charges against Hastings, the

charge of forgery made against Nuncomar, his trial and execution, and the view taken of those transactions at
the time
when they happened.
now come
to consider
the charges made against Impey on account of his connection with these events, and to express my own opinion upon them. Before entering upon this discussion it will
be necessary to describe the manner in which the charges came to be made.

of a far wider
relating to Nuncomar were a part only and more intricate quarrel between the Governor-General and Council on the one side, and the
The questions
Supreme Court on the

of
it
other.
;
I have given a full account
in the following chapters but I have thought it more convenient to finish the story of Nuncomar before going
it. It is a very intricate story, and its details do not possess the picturesque interest which attaches to Nuncomar's case. In one part of it, no doubt, corruption
into
VOL.
II.
[chap.
has been imputed both to Hastings and to Impey but for the most part the interest of the matters in dispute is
;
derived rather from questions of general pohcy, and from the light which they throw on the difficulties under which the Indian Empire was established, than from the
intrinsic character of the details.
understand
how Impey came
to
In order, however, to be impeached, it is
necessary to state in the most general way the nature of the dispute between the Council and the Court, and a
few of
The
its principal incidents. principal parties in Bengal between
1774 and 1784
were the Council, the Supreme Court, and the European residents, whether servants of the Company or not ; and
the Council
itself was divided into two parties, of which and Francis were the heads. Two contradictory Hastings theories were held as to the way in which the country should be governed, and neither of them was fully
adopted by any of the parties mentioned. One theory was, that the King of England was and ought to be regarded as the sovereign, the East India Company being
simply a joint-stock company intrusted with
special powers
certain
by English statutes and charters. The other was that the East India Company were the virtual
sovereigns of the country by reason of the grant of the Diwani by Shah Alam, and treaties with the Subadars
of Bengal, and that English statutes
and English courts
of law were to be regarded merely as accessories to this power, not to say as usurpations upon it. As Shah Alam
was a
fugitive,
and Mobarruck ul Dowla
little
better than
a state prisoner, this meant in practice that the Europeans iu India, and in particular the Company's servants, were
to do as they pleased. Of course, such a theory could not be avowed or acted upon. It was monstrous in itself,
IX.]
and expressly condemned by Acts of Parliament, which could not be resisted, but it had great influence, as appears from all the papers and debates of the time. ^ The form which it took was that of zeal for the native powers, and indignation at everything which interfered wath native
of England which was obviously true in was the sovereign of Bengal, ^ It seems that in his fact, assumed different shapes, heart Francis held this view even more decidedly than the Judges of the Supreme Court, but he drew from it
laws or institutions.
The view that the King
Francis's inference was that very different inferences. the true policy was to declare the King's sovereignty boldly, to extend the jurisdiction of the King's Courts
over the
whole
to
of
native courts
the
Bengal, and to subordinate the Supreme Court. In practice his

It
inference was different.
was that the Council
col-
lectively were in the position of a Viceroy, and that the Supreme Court ought to regard them in the light of a
supreme executive
authority,
with
power
to
define
the limits of that authority. The Supreme Court considered that they, and not the Council, represented the sovereign, and that, except in cases where Parliament
had given express power to the Governor-General and Council, they were only the managing directors of a joint
stock company. My impression is that both Hastings did their best in good faith in their owti and Impey
^
impeachment
^
ii.
See, as a single strong illustration, Colonel Fullarton's speech of Impey.
on the
27.)
See a letter from Francis to Lord North dated Feb. 1775 (Merivale He sa3's in it inter alia, "The first thing to be done is to
. .
"The the King's sovereignty over the provinces." . "jurisdiction of the Supreme Court should be made to extend over all "inhabitants. I conceive that this may be done without touching the
"declare
three
"country Courts." At months in India.
this time Francis
had been
little
more than
B 2

to
[chap.
spheres
conduct
as
public
as
business,
both
executive
much they themselves with any theory on the subject. troubling Hastings's task was infinitely the more arduous, imand
judicial,
well
could
without
and he was in all ways a far more remarkable man than Impey but Impey also had to struggle with great difficulties, and take considerable responsibilities, and I think his side of the
portant, and responsible of the two,
;
As to question has never been adequately put forward. Francis and his colleagues my opinion is far less favourable.
Their conduct appears to
foolish to the last degree,
me
and
to
to
have been rash and have been influenced
on
all
occasions
by that dangerous counterfeit of public
consists in thinking that your enemies are desperately wicked and deceitful above all things, and that your own party objects are so obviously right and
virtue
which
wise
vilest of
that whoever opposes them must act from the motives in the pursuit of the worst of objects.
proceed to
at present pushing this matter further, I enumerate very shortly the principal events which happened in the interval between Nuncomar's execution in 1775 and Impey's impeachment on the charge of a judicial murder in 1788.
Without
The quarrels between the Council and the Court began

before Nuncomar's arrest for forgery, and quite indepen^ dently of it. The majority of the Council recorded a
minute as early as 11th April, 1775, in which they protest against the jurisdiction assumed by the Court, and through that and the following year they recorded repeated comThe questions between the plaints on the subject. Council and the Court came to a head in a famous case known as the Patna Cause, which lasted from 1777-1779,
1
Touchet, Gen. App. No.
3,
end.
1.
IX.]

in another of
and
even greater importance called the
Cossijurah Cause which was tried in 1779-1780. The Patna Cause was supposed, not I think correctly, to have determined in substance that the provincial councils, which at that time acted as Courts of Justice, had no legal
authority or indeed existence. The Cossijurah Cause seems to have been considered to involve the consequence
that the Courtclaimed to extend
its jurisdiction
over
all
the
landholders of Bengal. In this case the Council opposed the execution of the process of the Court by military force, and substantially confined its jurisdiction by the
same means within the town of Calcutta.

of
this
It
was out
charge brought against Hastings and Irapey, of giving and receiving a bribe,
transaction
that
the
was said that Impey was made Diwani Adalat, or Civil Court of Judge of the Sudder Appeal for the district Civil Courts, with a large salary, substantially in consideration of his giving up the claims of the Supreme Court to jurisdiction over the was said
to arise.
It
zemindars.
About the same time the Europeans in Calcutta made grievous complaints of the Supreme Court. Under the
tried civil cases without a jury. Against this and also set forth other acts of the Court they petitioned,
Charter
it
The petition which they regarded as objectionable. ^ Touchet's resulting from this agitation was known as
petition,
from the name of one of the agents for the
petitioners, and their report and its appendices are the principal authorities on the quarrel between the Court and the Council. The report was published in 1781.
About the same time was appointed the Committee on the Administration of Justice in India, of which Burke was
1
It is
remarkable that
lie
was one of the jury who
tried Nunconiar.
[chap.
the leading member, Francis (who returned from India
19th October, 1781) being supposed to act as ^ his inspirer. The first report of this Committee (5th February, 1782)
reported against Impey's acceptance of the office of Judge ^ of the Sudder Diwani Adalat. xhe House of Commons,
on the motion of General Smith, passed a resolution on the 3rd May, 1782, addressing the Crown for the recall of " Impey to answer the charge of having accepted an
granted by, and tenable at, the pleasure of the "servants of the East India Company, which has a " tendency to create a dependence in the said Supreme
office
"
Court upon those over whose actions the said Court was intended as a controul." 2 This resolution was transmitted to Impey by Lord Shelburne on the 8th July, 1782. He received it 27th January, 1783, and left India on the 8rd December in the same year, and arrived in London in June, 1784. He was neither dismissed from his place, nor called upon to answer the charge on which he had been recalled nor indeed does any particular notice appear to have been taken of him till his name came to be mentioned in the debates on the impeachment of Hastings in 1787. He
"
"
continued to hold the

1787,
*
office
of Chief Justice
till
November,
when
his
resignation was accepted.
On
the
^12th December, 1787, Sir Gilbert Elliot, afterwards Lord Minto, moved that his complaint against Impey
should be received and laid on the table.
This motion
was agreed
^
to.
Articles of charge were accordingly pre-
" an
' '
''
those early years after Francis's return he evidently took active part in advising and informing those English politicians who were busily engaged in conducting the movement against Hastings and the Company" (Merivale, ii. 219).
"During
Pari. nist. xxii. 1411.
^ ^
Impey's Life,
p. 285.
Life of Impey, p. 270. p^rl. Hist. xxvi. 1835.
IX
pared and printed for the use of members. They were six in number, and related to the following subjects 2. The Patna Cause. 3. The 1. Nuncomar's case.
:
extension of the jurisdiction of the
Cossijurah case.
High Court. 4. The The appointment to be Judge of the Sudder Diwani Adalat, 6. The taking of affidavits
5.
by Impey in connection with Hastings's proceedings at

Benares.
The charge
relating to
much
the most important of to be heard upon that first.
Nuncomar was regarded as so them all that Impey begged

at the
and he was heard upon
it
His petition was granted, Bar of the House on the
4th February, 1788. Evidence was taken upon this before a Committee on various days in the course charge
of the same month. The question whether Impey should be impeached upon it was debated at full length on the ^ 18th April and the 7th and 9th May, when the motion
was rejected by seventy -three to fifty-five. ^ A faint effort was made to proceed with the charge upon the Patna Cause, but it w*i unsuccessful the rest of the impeachment was never proceeded with. Sub;
stantially, therefore, the
question of impeaching
Impey
Nuncomar. The order in which the matter was brought before The articles the House was most inconvenient. were first laid on the table Impey's defence followed the evidence was then taken, and last of all came the
to the charfje relating^ to
; ;
was confined
âccusation.
^
The
best
way
to give
the
effect
of the
Pari. Hist, xxvii. 292, 416, and 427.
Ibid, xxvii. 599-603 (27tli May, 1788). I have in earlier parts of this work given references to the speech of Sir Gilbert Elliot as reported in the Parliamentary History, and have said
'
that the earlier part of it only was corrected by Sir Gilbert himself. Just before the present sheet was finally corrected for the press, I received from
[chap.
first to examine tlie charge itself, and then to consider the different matters charged, in the light of the statement already made in the earlier
discussion will be,
chapters of this work, applying the various arguments used by Impey and his accusers to those facts. I have
added
facts
my own
opinion, formed
upon a review
of all the
and arouments.
In his fiimous speech at Bristol, Burke declared himself to be incompetent to the task of preparing an indictment
against a whole people.
to
He was certainly incompetent draw an indictment against an individual, for it is
impossible to imagine anything worse of their kind than the articles which he preferred against Hastings, and the
articles preferred against
Impey, which are in the same and presumably by the same author. The requisites style, of an accusation are obvious enough, and are those which are found in a modern indictment, and which, though overgrown with many technicalities, were found in the
old-fashioned indictments also.
An
accusation ought to
state directly, unequivocally, and without going into either argument or evidence, that at such a time and place the
person accused has done such and
such things, therean offence against such and such a law. by committing The articles of impeachment against both Hastings and
Impey
violated every one of these obvious rules.
Instead
Sir Gilbert's great-grandson, the Hon. A. Elliot, M.P., a copy in 448 4to pages of his ancestor's speech, which I have examined and refer to as the " It stops in the most tantalizing way in the middle of a printed speech.
' '
sentence and omits

his legal
all
argument exactly
the later part of the speech. It pi'esents, however, as he delivered it, and explains some matteis
which I did not understand when this chapter was written, and which I Lave accordingly referred to in notes. It appears from this speech tliat Elliot himself drew the articles of charge. They are, however, in close correspondence with Burke's articles against Hastings, and are obviously modelled uîon them.
IS.]

and
precise,
of being short, full, pointed,
they are bulky
pamphlets sprinkled over with imitations of legal phraseThey are full of invective, oratorical matter, ology.
needless
recitals,
everything in fact
arguments, statements of evidence which can possibly serve to make an
accusation difficult to understand and to meet.

are,
They
moreover, extremely tricky, being
full of insinuations,
and covering, by their profusion of irrelevant matter, the no doubt designed absence of averments total and the conclusion which they are meant essential to
In short, they are as shuffling and disinto support. in substance, as they are clumsy, awkward, and genuous
intricate
in
form.
These defects are
all
conspicuous
in the
which charges Impey with the judicial murder of Nuncomar. ^ The following is an abstract of its contents, following
article
as closely as possible in all material particulars its very " " whereases and other imitations of I omit the words.
is sprinkled to give it a legal phraseology with which it but I have, as far as possible, taken the legal appearance,
actual expressions of the charge, though I have gi'eatly condensed it. Its substance is as follows :
The Supreme Court
of Calcutta
was established
in
1774 on such terms as to make it independent of the East India Company, and the main object of its establishment was to protect the natives against the oppression of
the Company's servants, and particularly to protect them in making accusations and complaints, Impey was well
acquainted with
this.
Impey was appointed Chief Justice of the Supreme Court in 1774.

^
There
is
copy of
it
in the Wellesley collection of papers at the
India Office Library.
10

Soon
after
[chap.
Impey's arrival at Calcutta, Nuncomar, before the Council, accused Hastings of corrupt practices. His accusations were written, minute and specific. evaded inquiry by Hastings did not deny them,, but
confirmadissolving the Council, thereby giving strong tion of the truth" of the charges.
The Council determined

tion of this charge,
and Hastings, in order

for
"
to proceed in the investigato defeat it,
prosecuted
"
"
Nuncomar
of
conspiracy.
Whilst this
prosecution was pending
a direct attack was
made on
the
life
the said accuser of the Governor-General
No steps by indicting Nuncomar capitally for forgery." the criminal prosecution of such had been taken towards
alleged forgery
"
till
Nuncomar accused
of
^
"
Hastings.
The
circumstances aforesaid
could leave no
doubt in the
"
any person acquainted therewith, " that the said prosecution was set on foot with a view of " and the same was ^ condefeating the said accusation,
"
mind and opinion
sidered as a political measure contrived, either by the Warren Hastings, or by his party and adherents, to " extricate the said Warren Hastings from his desperate
"
said
"
and to deter other natives from accusing him. Nuncomar was peculiarly entitled to the protection of the Court, because it was one principal object of its
condition,"
institution
to protect all persons
in
the
detection
in
effect
of
corrupt practices; but Impey " abettor and instrument of Hastings, or of his partisans, " in the said wicked and unprincipled attack on the life "of his said accuser, and the said Sir Elijah Impey
"
"
"became
the
converted His Majesty's commission and authority, the laws of England, and the sacred character of magistracy,
1
It
is
It is
not said that Impey was acquainted therewith. not said by whom.
IX.]
11
"
" "
tional engine of revenge, oppression
new and addiand terror, in the hands of 4hose whom he was commissioned to controul. "Inpursuance of the said corrupt and abominable design
into a
new means
of impunity, and a
"
Impey, did entertain the said and did permit the said indictment to be prosecution, " tried byfa jury of British subjects, and did pass sentence
he, the
said Sir Elijah
"
"
of death
"
on Nuncomar, and refused to grant leave
to appeal
and to grant a respite. These proceedings were illegal (1) because they were not authorised by the Regulating Act, and though to some extent they might be authorised by the Charter, the Charter was to that extent void, as Impey ought to have known, and he was moreover criminal in procuring
the insertion of those clauses in the Charter.
Because Nuncomar was tried as having been an inhabitant of Calcutta at the time of the forgery, whereas
^
(2.)
in truth, he
was at that time confined
as a prisoner at
Calcutta.
(3.)
(2 Geo.
Because the Act under which Nuncomar was II. c. 25), did not extend to India.
tried,
These proceedings were also contrary to natural justice was not " a capital crime by the (1.) Because forgery
:
laws" of India.
Because the prosecution was based on the Charter of the Supreme Court, which did not reach Calcutta till 1774, whereas the alleged forgery was said to have been committed in 1770. So that Nuncomar was tried by an
(2.)
^ This assertion was altogether unfounded, and is in contradiction to In the printed the draft plea to the jurisdiction prepared by Mr. Farrer. on which the assertion was speech, Sir Gilbert Elliot states the grounds made, but admits that they were not before the Court at the trial, and
practically gives
up the
point.
12

"
[chap,
ex 'post facto law,

"
" "
which is contrary to the universallyreceived and acknowledged principles and practice of all rational societies and civilised nations, and is a
tyranny not to be justified under any Act of a British Parliament, or any Charter of a British King, and is
" "
utterly repugnant to the spirit of English law," &c., &c. Impey, so far from acting as counsel for the prisoner, acted as counsel for the prosecutor, "and pronounced a
"
charge
"
"
when he summed up the evidence given on the

most gross and scandalous
partiality,
tlie
said trial with the
dwelling on
all
the points which were favourable to
prosecution, and either omitting altogether, or passing " lightly over, such as were favourable to the prisoner, and
"
"
manifesting throughout the whole proceeding an ardent "wish and determined purpose to effect the ruin and " " death of Nuncomar.
All these matters
"
"
evince and demonstrate a corrupt
interest of the said Sir Elijah Impey, in the destruction " of the said Maharajah for purposes detestable in them"
selves,
but
much more
detestable in the said Sir E.
"
"
Impey's peculiar station, and gave just grounds to the native inhabitants of the said provinces and to the rest
"of the world, for believing that the said proceedings " were the fruit of a corrupt and wicked conspiracy
"
between the said Sir Elijah Impey and the said Warren
Hastings or his abettors, for the purpose of saving the said Warren Hastings from a just accusation by acconi-
"
"
"
plishing the death of his accuser." This charge covers more than six large folio pages, each It is everycontaining sixty-four lines of small print.
thing which such a document ought not to be. Instead of a direct definite allegation of guilt in simple
language,
it is
an unwieldy argument,
full
of rhetoric
IX.]
13
and passion to prove the guilt which it ought to allege, but long as it is, it is full of defects, which are not merely technical, but substantial and significant in the
'
highest degree. It states as the foundation of the whole charge against Impey, the conduct of Hastings when he was charged by
Nuncomar with corruption conduct which, it says, would leave no doubt in the mind of any person acquainted
;
therewith,
that the prosecution was set on foot in but it does not say that order to defeat the accusation was acquainted therewith, although a little before Impey
;
it
" most elaborate language that Impey was " " with the objects of the Regulating well acquainted
states in
Act.
conduct
of Hastings's not alleged, no doubt was because it could not be proved, and probably did not exist, but it is an essential step in the argument which the charge advances to
is
^ Impey said of this matter in his prove Impey's guilt. defence that these circumstances were not only not in evidence on the trial, but were not, in fact, known to him-
The reason why Impey's knowledge
self,
or to the other judges.
"
By rumour, and by rumour

preferred
"
only,
"
was
it
known
that
Nuncomar had
some
accusation against Mr. Hastings "office; the accusations which are said to have been " 2 in their publicly brought, were preferred to the Council " secret department, where each member was under an
"
for corruption in his
If the prisoner was an object of the from the circumstances special protection of the Court, " in which he stood as an accuser, that claim would have " laid before the Court in evidence and formed
oath of secresy.
''
been
1
part
Pari. Hist. xxvi. 1380, 1381.
of the charge. publicly accused," are the terms the oath of secresy, see same remarks in the next chapter.
2
" "Was
As
to
14

;
[chap.
"
"
of the defence
the particulars of the accusations, the
opinion of the majority of the Council of their truth, " the proceedings on them, the conduct of Hastings, the
"
"
grounds on which the majority thought the accusations could be maintained, were all matters capable of easy
proof," and might and would have been proved if their nature was such as to leave no doubt in the mind of any
"
person acquainted therewith, that the prosecution was set on foot for the protection of Hastings, yet no proof was given of any one of these things. To this argument, Sir
Gilbert Elliot, so far as I can see,
made no
reference what-
The absence of averment of knowledge in the charge is to my mind any conclusive proof that Elliot knew that Impey's argument
ever in his motion to impeach Impey.
it was unanswerable. Another remarkable point in the charge is the way in which it alleges a conspiracy between Hastings and Impey. It makes no direct explicit charge at all. It merely states a number of facts, and then says that they give just grounds for believing that there was a conspiracy between Impey and Hastings, or his abettors. An indictment for conspiracy so drawn would be bad on
on
the face of
all,
it, and would be held to contain no charge at and indeed it does not, for it alleges not guilt, but
a suspicion of guilt. It does not even suggest a conspiracy with Hastings, but only in the definitely alternative, a conspiracy either with Hastings, or with
grounds
for
some unknown " abettors." The well-known and wholesome rule of special pleading ^ " pleading evidence," is set at against what is called
naught in the charge, but from
1
first to last it states
no
committed murder," and not You must say positively, e.g., " several respectable witnesses say that they saw A commit murder."
"A
IX.]
15
which taken by itself tends to prove any conspiracy between Hastings and Impey, or to show any motive on Impey's part to enter into such a conspiracy, Stated in the most naked way it may be reduced to this form. You, Impey, ought to have inferred from facts,
fact
which we do not say you knew, that the charge against Nuncomar was trumped up to protect Hastings, and thereupon you ought to have quashed the indictment, but you did not do so. On the contrary, you tried the indictment it was illegal, you showed partiality in and after though the trial, and this proves that you must have had a bad
motive
for
what you
did,
and the whole of your conduct

ill-
suggests a conspiracy with Hastings. "When we come to consider the substance of this
conceived and cumbrous document

substantial charges against
it
appears that the

four in number^
namely
Impey were
First, that
he acted illegally in trying Nuncomar at all. that he misconducted himself at the trial. Secondly, Thirdly, that he conspired with Hastings to cause
to
Nuncomar
be prosecuted on a capital charge. Fourthly, that from a corrupt wish to screen Hastings he refused to give Nuncomar leave to appeal, and refused
to respite
Nuncomar.
these
Upon
first.
charges
it
is
to
be observed that the
second, third, and fourth are quite independent of the
Whether the trial of Nuncomar was or was not legal it was Impey's unquestionable duty to conduct it fairly, and if he really did conspire with Hastings to procure the conviction of Nuncomar, or corruptly refused to respite Nuncomar, having the power to do so and being convinced that he ought to exercise that power, he no doubt
16
[chap.
committed one of those offences for the punishment of which impeachment is not only the proper but the only
possible mode of proceeding. I shall consider each of these charges in the order in
which
have mentioned them.
First then,
Was
the trial of
Nuncomar
illegal
different ways in which the charge of illegality shaped one appears to me so extravagant that its appearance in so solemn an instrument as articles of
is
Of the
charge intended as the basis of an impeachment, throws discredit enough on the judgment and legal knowledge
of those who prepared it to show that they were unfit for the task they had undertaken. I refer to the part of the
charge which half alleges and half insinuates that, in " entertaining the prosecution and in permitting the said " capital prosecution to be tried," Impey committed an
offence, as
because
"
he ought to have quashed the indictment " it was considered by some unknown and un"
as a political measure," and because " could leave no doubt in the
mentioned persons
"
circumstances existed which
mind and opinion of any person acquainted therewith," " that the said (which Impey was not alleged to be) " was set on foot with the view of defeating prosecution " the said accusation." Of this it is enough to say
that judges ought to take judicial that it assumes, first notice of rumours imputing malicious motives to prosecutors secondly, that the fact (proved by such rumours) that
;
a prosecutor is actuated by a malicious motive establishes the innocence of the person accused ; and thirdly, that if
the judge is convinced of the innocence of the accused by a rumour that the prosecutor is malicious, it becomes the judge's duty to "quash the indictment," by which I suppose the author of the charge meant to prevent the
IX.]
17
case from being tried, for the quashing of one indictment does not interfere with the presentment of another for the
same offence. Another part of the charge of

equally monstrous.
illegality appears to
me
It is asserted or insinuated in several
of the expressions quoted, that even if the law of England justified Impey's course, it was so distinctly opposed to
natural justice that he was a criminal for putting it in To admit such a principle would be to destroy force. the specific character of law, and to throw everything
To punish a judge for enforcing a confusion. bad law implies a right and duty on the part of the and judge to decide whether the law is good or not It seems to this puts the judge above the legislature. me unnecessary to say more on this topic than that
into
;
Impey must be taken

according to the
have acted legally if he acted Regulating Act and the Charter issued
to
under
it.
The
really serious part of the charge of illegality
may
be shortly
summed up by
saying that
subject to the law of England at offence was said to have been committed, and that if he
Nuncomar was not all in 1770, when his
was subject to it, the particular Statute under which he was tried (25 Geo. II. c. 2), was not in force at Calcutta at the time when the offence was committed, or at the time
when
It
the
trial
took place.
was further alleged in the article of charge that the of England, so far as it was introduced into Calcutta law at all, was introduced when the Supreme Court was proclaimed in 1774, but this was not really a separate point. If the law of England was not introduced into Calcutta before 1770 when the offence was alleged to be committed, the whole proceeding was clearly erroneous, and it is
VOL.
II.
18
[chap.
immaterial to the question whether the law of England was or was not introduced afterwards.
This then is the great question as to the legality of the proceedings against Nuncomar. Was the criminal law of Enofland in force in Calcutta in 1770 when
the deed purporting to be that of Bollakey .Doss was If so, was the Statute, 25 Geo. II. c. 2, in uttered ?
force as
part of it. Împey's case upon this, as stated in his defence at the
:
Bar of the House, was as follows
The
criminal law of
England, though not in force in Bengal generally, was introduced into Calcutta first, in 1726, by a Charter
granted by George I. to the Mayor's Court, and afterwards in 1753 by a second Charter granted on the surrender of
the
constituted
and to much the same effect. These Charters the governor and certain members of the Council, justices of the peace, and commissioners of Oyer and Terminer, and gaol delivery, and required them to
first,
hold Courts of Quarter Sessions, at which they were to The Begulating Act try all crimes except high treason. that the Supreme Court should be " a Court of provided
" "
Oyer and Terminer, and gaol delivery in and for the said town of Calcutta and factory of Fort William in 'Bengal aforesaid, the limits thereof and the factories "subordinate thereto," words which clearly give a local territorial jurisdiction over all persons in the places men-
tioned, to
The Charter
whatever race or nation they might belong. of the Supreme Court added something to
the words of the Regulating Act, but nothing which they were not wide enough to include. The clause of the
Charter
is
Supreme
long, but in substance it provides that the Court is to be a Court of Oyer and Terminer,
1
Pari. Hist. xxvi. 1359-1366.
IX.]
19
and gaol delivery in and for Calcutta, and to have the same power as Commissioners of Oyer and Terminer in " England, to inquire of treasons, murders, and other
"
felonies, forgeries," &c.
Provision
is
made
for
summon-
ing grand and petty juries and witnesses, and the Court " is directed to hear, examine, try, and determine the "said indictments and offences, and to give judgment "thereupon, and award execution thereof, and in all
"
"respects to administer criminal justice in such and the like manner and form, or as nearly as the condition and " circumstances of the place and the persons will admit
Oyer and Terminer in England. view appears to have been I do not quote his Impey's words that the effect of all this was to introduce and
of,"
"
as Courts of
reintroduce the Criminal
Law of England into Calcutta three times, so that, as regarded offences committed between 1726 and 1753, the law of England, as it stood
;
in 1726
as regarded offences committed between 1753 and 1774, the law of England, as it stood in 1753 and as regarded offences committed from 1774 onwards, the ]aw of England, as it stood in 1774 v/ould apply but " in each case, as nearly as the condition and circumstances " of the place and the persons will admit."
;
;
The
offence
imputed to Nuncomar would thus
fall
under the law of England as it stood in 1753. Act under which he was tried (25 Geo. II.
passed in 1729.
at the time of
place,
if
Now
c.
the
2)
was
It
was at
but was afterwards made

at in 1770.
passed for five years only, It was thus in force perpetual.

first
Nuncomar's alleged offence which took
all,
Impey disavowed in the strongest terms the imputation which many persons appear to have thrown on the Supreme
Court, of having introduced the criminal law of England c 2
20
[chap.
indiscriminately into Bengal, Behar, and Orissa. He said in the strongest way, and no doubt with truth, that
he left Bengal in December, 1783, no indictment had been tried in the Supreme Court against any-one but an inhabitant of Calcutta for an oftence committed in He also stated that not only had the criminal Calcutta. law of Ensjland been understood to be introduced in 1753 but the East India Company had instructed their servants in Calcutta to act upon it, and had given them instrucHe tions as to the manner in which they should do so.
till
^"
says,
"
Among
the records I found the instructions sent

"
out by the Court of Directors with that Charter (the Charter of 1753) "and expecting, as I really procured " great information from them, ordered them to be copied.
" "
These instructions direct the new Court how
to proceed
against prisoners not understanding English, tells what " crimes are misdemeanours, Vvdiat simple felonies, what
" "
within clergy, what capital, and

that head
;
all
the distinctions on
what punishments are

is
;
to be inflicted,
amongst
"which transportation
"
in each case
particularised; how to proceed and gives precedents of indictments for

for
"
each crime, the oath

1
an interpreter where the prisoner
I have not attempted to verify this statemost unlikely that he should have made it It is corroborated by some parliamentary papers referred to falsely. below. It is asserted by Sir Gilbert Elliot, in bis printed speech, that Impey was mistaken, and that the instructions were sent out with the Charter of 1726, though he agrees with Impey and Boughton Rouse that the proclamation about English criminal law being in force in Calcutta was in 1762, and argues earnestly from the fact that the English criminal
Pari. Hist, xxvii. 13G1.

of Impey's.
It is
ment
law was not put in execution in Calcutta till 1762, against its introThe inference seems to be that it was introduced, or at duction in 1726. least reintroduced as Impey says, in 1753, and put into force as soon as
the course of events
Calcutta.
made
the
Company
practically
sovereigns
in
IX.]
21
"
."when any Portuguese, Gentoo,

"
does not understand English, directions how to proceed or native of India, not
'
"
" "
born of British parents, happens to be prosecuted for any capital offence, which the instructions say will they are told that stealing probably often happen goods above the value of forty shillings out of a dwelling house, above five shillings privately out of a
; '
'
" "
shop, warehouse, court-house, or stable,

lêrson above
five shillings, is capital
;
and from the
"
"
they are told that
the jury may mitigate the sum so as to make the offence " clergyable, and the clerk of the peace is directed to
"
"
mark the ^judgment They give precedents

and add indictments
so mitigated to distinguish them. of indictments for all these crimes,

for burglaries,
"
highway
robberies,
In a ''and horse-stealing, as cases 'likely to happen/ " marginal note they are told in cases where any Act of
"
"
Parliament makes a crime felony, which was not so at common law, the indictment must conclude against the
' '
"
'
'
form of the Statute.'
They are
directed 'to enlarge on
'
'
'
His Majesty's princely goodness, who, on the humble application of the Honourable Company, has thought
fit
" " "
'
'
his
'
extend his care and the benefit of his laws to most distant subjects in the British settlements in East Indies.' ^This the directors desire may be done
to
'
"
'
the
It
first
time the Commission is^put into execution.'
"
should be judgments. from the evidence given by Mr. Boughton Eouse before His evidence is as the Impeachment Committee that this was done.
"^
It appears
follows
}"ou know anything of any notice of any intention to carry " the English criminal law into execution within the town of Calcutta ? " A. I have found amongst my papers a copy of a proclamation issued " by His Majesty's justices for the town and district of Calcutta at their " Quarter Sessions held on the 3rd June, 1762, in which such an intention " is announced." This is in Elliot's
"
Q.
Do
proclamation
printed
printed speech.
22
[chap.
An account dated 3rd March, 1788, of the trials before the Court of Quarter Sessions at Calcutta from 27tli ^ August, 1762, to 27th November, 1768, was published
as a parliamentary j)aper.
It appears
from
it
that in the
course of those six years there were tried forty-five cases in which sixty-two persons were implicated. To judge
from the names, most of them were natives, fourteen were Englishmen, and a few Portuguese. Twenty-one of the
whole number were sentenced to death, nine ^ in one case. It is obvious that the most technical of all the rules of
for
English criminal law was held to be in force in Calcutta, when charges of larceny were tried the jury found the
value of the stolen articles to be lOd. in order to avoid a
conviction for grand larceny which would be capital. Two of the cases tried were for forgery. On the 28th May, 1764, Francis Kussell was convicted of forgery
and sentenced
cart's tail.
to
What
be whipped round the town at the he had forged is not stated. On the
" liadachurn 27th February 1765, occurs this entry " Metre forgery guilty death pardoned." This con-
viction took place under the statute on which Nuncomar was tried and was naturally much relied upon by Impey. Copies of the proceedings before the Court, and of the
corresi3ondence consequent thereon, were published as parliamentary papers and laid before the House of
Commons. The proceedings are of no

Metre was convicted of forging a
^
interest.
Radachurn
one
codicil to the will of
It is in vol. iv. of the "Wellesley
Papers at
tlie
India Office.
native names). Crime Felony Sentence Deatli. and mnrder. Vo'dict Pleaded guilty to the felonj'. This is obscnre, as it does not appear what the felony was. A note to the
in this case is
The entry
Names (nine
to
return says that the Company have no paper in their possession in Europe show whether the sentences specified were carried out or not.
IX.]
23
Coja Solomon. Upon this the Governor and Council " were ^petitioned by the "principal black inhabitants in
favour of the prisoner. They respited him in order to " these people the fullest conviction of our lenity as give " well as justice, and in hopes that this man's condemna" " "
"
tion will be a sufficient
example
to deter others
from
the committing of the like offence which is not held The directors answered so heinous in their eyes."
by procuring a free pardon for E,adachurn Metre. They pointed out some defects in the indictment and observed
" that upon the evidence there appears but slender legal " evidence to found a conviction upon," and concluded, " we are glad you have interfered in his behalf." Impey
2 that after every inquiry he could not discover that the proceeding itself was ever censured or the law complained of by the inhabitants, and that the petition
said
was based on the circumstance, that

the time
" "
its
existence was at
unknown
to the inhabitants.
He
adds, that as
the whole passed in the ordinary course of business, and accorded with all the other proceedings of the Court,"
he "esteemed it a full precedent, more especially as there " had been a plain intimation from the Governor and " Council, if the condemnation should not be sufficient to
"
"
deter the natives from the commission of forgery, that the law would be enforced in future."
These arguments seem to have convinced at least one

^
this address
have seen a suggestion that Nuneomar was one of those by whom was signed. A parliamentary paper purporting to be a copy
of part of the consultations for 11 March 1705, is bound up in the volume of papers at the India Office which contains the evidence before the Impeachment Committee. It points the petition in question. Ninety are appended to it, Nuncomar's name is not one of them. four names That of Mohun Persaud is fifth on the list,
2
Pari. Hist. xxv. 1363.
24
[chap.
most hostile critic. James Mill, who most strongly condemns the execution of Nuncomar, admits, ^ " There
"
"
was, perhaps, enough to save the authors of this transac-
tion on the rigid inter|)retation of naked law." Leaving out the adjectives, which so determined a disciple of
Bentham should have
disdained, this
amounts
to
an
admission that what was done was probably legal. The fact that Mill does not dispute its legality, shows that
he felt that the probability of it was high. Macaulay contents himself with observing " whether the whole " proceeding was not illegal is a question. But it is " certain that whatever may have been, according to
" "
technical rules of construction, the effect of the statute
"
trial took place, it was most unjust to a Hindoo for forgery." This remark seems to hang me to show that Macaulay did not understand the
under which the
question. Nothing turned either upon the construction of the statute 25 Geo. II. c. 2., nor upon the construction
of 13 Geo, III.
I
c.
63, nor
upon that
of the Charter,
and
think Macaulay made use of the ambiguous expressions quoted, because he did not know his own meaning,
and was and the
afraid to be definite for fear of being wrong.

statute, 2 Geo. II.
The question was whether English criminal law in general

c.
25, in particular
had been
introduced into Calcutta, and if so when ? The part of Sir Gilbert Elliot's speech which was
directed to this matter "is reported, as appears by comparing it with the printed speech, in a manner which
though not incorrect

1
is
extremely summary.
The
report
Mill (Wilson's ed.), iii. 453. Pari. Hist. xxvi. 364. This follows the pait of the speech revised by Sir Gilbert himself. It forms part however of the printed speech
*
above referred
to.
IX.]

"
25
*"
he referred to the Acts of Parliament, and to the Charter constituting the Supreme Court. By the " former it was clear no power of criminal jurisdiction
says
was given." ^(^Howthis can be reconciled with the part of the Act which makes the Supreme Court a Court
of
"
" "
"
Oyer and Termiuer in and
for Calcutta
I
it
cannot
understand).
might be contended that such a power did exist; but then on what written authorit}^ could it be exercised ? He
entered into a discussion of the question, whether a King of England exercising sovereign power over a
"Under the
latter
he admitted
"
"
''
"
conquered country had a right to extend his laws to that country and subject the natives to their operation without the consent of his Parliament. He denied that
"
he could, and pointed out the extreme danger that must "result to our constitution at home if a British king
could so far carry his prerogative royal," This argument refers to a controversy which had then
^
"
been raised by a decision of the Court of King's Bench on the authority of the king to legislate for the island of Grenada, in which Lord Mansfield, in delivering the judgment of the Court, said that the king had power
lately
to legislate for
rence of Parliament.
conquered countries without the concurThis view was controverted at the
^ From the printed speech it appears that Sir Gilbert Elliot argued in substance that the assumption that Parliament could mean to exercise or authorise the exercise of criminal jurisdiction over any part of India, or
to subject
any natives of India, in Calcutta or elsewhere, to English criminal law was so monstrous that words appearing to assert the con-
trary
possible.
must be "construed strictly," that is to say, explained away if He would have construed the words quoted to mean, "over Englishmen born residing in Calcutta," which is clearly not their
v.
meaning. 2 In the case of Campbell

323-326).
Hall (20
St.
Tr.
239-354, especially
26

^
[chap.
by Baron Maseres, but is now generally and Las, indeed, been recognised by Parliament, accepted and exercised in many cases, both in India, in Ceylon, at
time, especially
the Cape of Good Hope, and elsewhere.
Elliot also argued
that Calcutta was not a conquered country, and in this argument he was supported, and even outrun, by Colonel
Fullarton.
by
"
considered that Calcutta was held neither " but by a particular tenure " from the Nabob of Bengal, and under the paramount
cession nor
He
by conquest,
authority of the Great Mogul."
In proof of this he
referred to the various firmans issued
by the Emperors of
Delhi, especially to one issued, ^ he said, in 1764, before the grant of the Diwani, which said, " The Company
" "
"
must endeavour
to drive out our enemies, and decide causes agreeably to the rules of Mahomet and the laws of our empire." This argument no doubt proved that
^
See extracts from his Canadian Freeholder {2Q St. Tr. 331). As to the
recognition of
Campbell
that
v.
Hall by Parliament
treaty,
(see 6
&
7 Vic.
c.
94).
This
Act
recites
"
"by
capitulation,
grant,
usage,
sufferance,
and other lawful means, Her Majesty hath power and
"jurisdiction within divers countries and places out of Her Majesty's " " doubts have arisen how far the exercise of such dominions," and that
" power and jurisdiction is controlled by and dependent on the customs " of this realm." It then enacts that any such power may be exercised " in the same and as ample a manner as if Her Majesty had acquired "such power or jurisdiction by the cession or conquest of territory."
'
This implies that at common law the king's power to legislate for a conmake his (juered country is unlimited, for the object of the Act was to jiower to legislate, e.g. for British subjects in Constantinople, unlimited.
As
History of the Criminal Law, ii. 58-60. Elliot's printed speech shows that he 469-473. went quite as far as Fullarton. He argues at enormous length, giving as a part of his argument what may be called a history of the establishment of the English at Calcutta, to show that the King of England had
2
to this power, see Pari. Hist. xxvi.
my
rulers.
no powers in India except those derived from the grants of the native He could hardly argue in Parliament that Parliament had no
such power, but he obviously thought so. 3 This is not in Aitcheson's Treaties,
IX.]

of
27
that illegal, but it also proved the whole English establishment in Bengal the legality of depended upon, and was limited by, the rules of Mahomet
.the trial
Nuncomar was
and the laws of the Mogul empire. In other words, it proved too much. It appears to me to be an argument against a fact.
tions
Conquest does not necessarily imply active warlike operaand a solemn proclamation of sovereignty. When it was, and is, said that India was conquered by the with English, all that any reasonable person acquainted
well-known
means to assert is that Englisha series of operations, mostly military, men gradually, by whatever acquired the control of all political power Court actually sitting under throughout the country.
historical facts
the
authority
of
English
statutes
and
charters,
and
of the refusing to recognise the king as the sovereign in which they sat, would have been in contradiction city
with
itself.
My own
The
1,
opinion upon the subject

of
is
as follows
matter
or
principles are two.
law which apply to the

is
When
a possession
acquired
by conquest
cession the king may by his prerogative introduce into If he introduces the law of it the law of England. of the England generally, this applies only to such parts law of England as are suitable to the circumstances of
the newly-acquired territory. Whether any particular fact introduced, or is suitable part of the law has been in is a question of detail to be decided to local circumstances,
as particular cases arise.
2.
The king may by

by
sessions acquired
his prerogative legislate for poshe appoints conquest or cession until
a local legislature, but after the appointment of a local
28
[chap.
to legislate, otherwise than legislature the king's right by an express Act of Parliament, determines.
This is qualified in Calvin's case, which is the root of " ^ Also if this branch of the law, by these vague words " as King a hath a Christian by conquest,
:
kingdom king "Henry II. had Ireland, after King John had given " into them the laws of England for the government of
"
"
that country, no succeeding king could alter the same without Parliament." If Coke meant by this that the
power of the King over a conquered country was exhausted by introducing English law into it (as Sir Gilbert EUiot supposed), I think that his view has not ^ In many of the Crown been followed in later times.
legislative
.
Colonies,
and in various parts
of India, in particular in the
the Crown have been Panjab, the ^legislative powers of exercised down to the time of the appointextensively
ment
legislature. passage is favourable to the and unfavourable to the one
of a local
No doubt, however, this view maintained by Elliot taken by Impey and his
brethren.
That these principles apply to Calcutta cannot be of denied, as they have been recognised in a long series will I decided cases and parliamentary enactments. mention one strong instance of each. The case of the
v. the East India Gompany proceeds the principle that English law was throughout upon introduced into Calcutta at a very early period, and
3
Mayor of Lyons
Reports, 17
&.
A great
number
of authorities,
on this matter are to be found in
See especially p. 14-16. Forsyth's Constihvtional Law, chapter i. p. 1-34. the Notes 3 Moore's Indian 175, and see the cases reported in Appeals Freeman v. Fairlie, in which I feel a personal interest, to
it,
as
it
especially consists of a
Master Stephen,
my
confirmation by Lord Lyndhurst of a report by was taken. grandfather, to which exception
IX.]
29
.decides that the particular rule that lands purchased by alien are forfeited to the crown was not so introduced.
an
The statute 9 Geo. IV. c. 7-i applies to the administration of criminal justice in the Supreme Courts, and abolishes amonofst other thins^s benefit of clersfv and
many
technicalities as
to indictments,
&c.
This
is
distinct legislative recognition of the doctrine that in
towns, but
1828 English criminal law was in force in the Presidency it was certainly not introduced generally by
any earlier enactment subsequent to the Regulating Act and the Charter of the Supreme Court, though several other acts, e.g. the Charter Act of 1813, contained special provisions on the subject, and it is equally certain that it was not introduced for the first time in 1774. The question therefore is, at what time was the criminal law of England, so far as it was suitable to local circumstances,
introduced into Calcutta?
Was
it
introduced in 1661
by the letters patent of Charles II. ? or in 1726 by the letters patent by wbicli the Mayor's Court was established
?
or
by the
letters
issued
when the patent
of
patent of 1753, which were 1726 was surrendered ? or in

If I were
1774 by the Charter of the Supreme Court?
to consider this question wliolly apart from the later decisions bearing upon it, I should say that it was originally introduced to some extent in 1661, but that the later
acts of legislative authority
Charters of 1726, 1753, and 1774 must be regarded as whereby it was re-introduced
on three successive occasions, as it stood at the three periods mentioned. When so introduced I think it would
extend to
the time
all
when
persons locally within the jurisdiction, from the East India Company began in fact to
exercise exclusive powers of
government
events from 1757,
when they
and at all and conquered expelled

there,
30
[chap.
Suraja Dowla, and became substantially sovereigns of Calcutta and its dependencies, subject of course to their
own
This in substance is Impey's sovereign George III. view of the matter, and if it is correct, the trial and execution of Nuncomar were strictly legal.
to
am, however, bound to say that this view is opposed an opinion which is so firmly established in India, and has been so often acted upon by the courts and the ^ This view legislature that it can hardly be disputed.
I
is
that the date at which English criminal law must be taken to have been introduced into Calcutta was 1726,
the date at which the Mayor's Court was first established by charter. If this is true, the Act under which Nunforce in Calcutta, as
comar was indicted was not at the time of his offence in it was passed in 1728, and could I have done my not, therefore, be introduced in 1726. best to trace the history of this doctrine, but have failed
to
do so to
my
satisfaction.
decisions of the
The early reports of the Supreme Court are meagre. I have

decide on various grounds that was or was not in force in Calcutta,
found a good
many which
this or that statute
but I have found no statement, in any decided case, of the rule that 1726 is to be taken as the date of the introduction of the English statute law still less have I found any explanation of the reason why that date was chosen.
;
Mr. Stokes points out that it is difficult to say why 1726 The authority should be taken rather than 1661. usually cited for the rule itself in Indian law books is a
"'
paper written, about the year 1815, by Sir Edward

^
Hyde
Mr. Whitely Stokes, states this view and refers to many authorities in support of it in a note to the first page of a work called The older Statutes in force in India (Calcutta, 1874). Printed in Mimoies of Evidence, vol. i. p. 125-133. See as the date
My friend and successor in
office,
'^
of the papers
Answers 1,323 and 1,286-7.
IX.]
31
East, foimerly Chief Justice of the Supreme Court, and given in evidence by him on the 9th March, 1830, to the
Committee of the House of Lords, which was then taking evidence on East Indian affairs in preparation for " It is proper to rethe Charter Act of 1833. He says, " mind Government that notwithstanding the Act of the " 13 Geo. III. c. 63, and the king's Charter of 1774 granted " " under it ..." the inhabitants of Calcutta "
Select
.
.
the statute law of England " to a later period than the thirteenth year of George I. " This has been the uniform unless expressly named.
"
have not the
full benefit of
"construction of the judges of the

" "
' '
Supreme Court
since
and whether right or wrong originally, of the present day cannot depart from it the judges
its
institution
without authority of Parliament.
"
" "
"
The period at which the general statute law stops in regard to this Presidency is that of the constitution of the Mayor's Court in Calcutta when those who esta;
"
Wished that construction said upon the doctrine of Calvin's case that the British law was then first given
to this as to a British colony, and that as a rule it could not be included in any subsequent statute unless
"
"
He goes on at great length to show of this construction. For instance, he the inconveniences
"
specially
named."
says that to obtain goods by false pretences was no offence in Calcutta, as 30 Geo. II. c. 24 did not extend to it. He
adds
" "
"
:
felon stood mute,

it
and
it
whether
et
was not
obstinately.
If so found,
was very doubtful he must
have been put to the barbarous torture oi pain (sic) forte dure, instead of having judgment against him by the "statute 12 Geo. III. c. 20; ^but this is now better
"
^
This sentence must have been added when the paper was sent before
It obviously refers to 9 Geo. 4, c. 74,
s.
the Committee.
34.
32
" "

'
[chap.
provided for by the Court ordering " guilty to be entered for him.'
'
a plea of not
Another consequence, which does not seem to have occurred to any one, ought to have followed, which would have practically closed the doors of the Court on the
criminal side.
All indictments ought to have been in
Latin, as they were at common law, for the statute which required them to be in English (4 Geo. II. c. 26), was not
passed till 1730. I do not think
it
can be doubted that Sir Edward East
states correctly what was in 1815 and in 1830 the opinion ^ of the judges as to the law. It is strongly confirmed
by the contents of the statute, 9 Geo. IV. c. 74, already referred to, which introduced into the Presidency towns
in 1828.
a great part of the criminal law of England as it stood Thus ît enabled the Court to enter a plea of
if
a prisoner stood mute, and it made it ^ an offence to obtain goods by false pretences, * to embezzle
not guilty
money, &&, and to commit many other acts of dishonesty which in 1726 were regarded as mere civil wrongs. Sir E. East observes, "Thus by a mere technical rule
^
"
the population of of doubtful application and extent Calcutta have been deprived of the benefits of British
it.
"
legislation,
for
Who
no other legislation having been substituted ^ I have been first introduced that rule
^ On this see a Charge to the Grand Jury of Calcutta by Sir E. Smoult and Ryan's Enles and Orders, Eyan, IStli April, 1829. Appx. xxxiv.-vi.-xlvi.
2 4 ^
9 Geo. IV. c. 74, S. 100.

I
s.
34.
^ 6
g. io6. S. 97-105.
must here acknowledge a great obligation to Mr. Belchambers, the Registrar of the High Court, and was the Registrar of the Supreme Court, having thus held the same office for at least twenty-five
who
is
3'ears
is
a rare instance in Indian administration.
Mr. Belchambers, who

all
probably better acquainted than any living
man with
the matters
IX.]
33
unable to discover.
disputes, but in 1726, and
legislative
why why
The doctrine of Calvin's case no one should have been presumed to apply the equally well-known doctrine of the
it
in conquered countries should not give validity to the Charter of 1753, and why the Regulating Act should not have been held to confirm,
power of the Crown
if
they needed confirmation, the Charters of the Supreme Court, which obviously meant to extend the criminal law of England as it then stood, to Calcutta, I cannot underTwo cases only of a long list supplied to me by stand.
Mr. Belchambers have any permanent interest in this matter, and they throw no light on its principles.
tried in
R. v. CoUipersaud Ghose, who was under 2 Geo. II. c. 25, s. 2 (the Act under 1786 which Nuncomar was tried) for stealing a bill of exchange.
The
first is
a case of
Chambers
in this case held that the statute did not ex-
tend to Calcutta, Hyde held that it did, and Sir William Jones doubted, but the prisoner was tried, convicted,
and imprisoned.
This, as far as
it goes,' follows
the deci-
the 16th January, 1789, Martirus Shabin was convicted before the same judges
sion in ISIuncomar's case.
On
of publishing a bond. statute of 5 Eliz. c. 14
The judgment was under

fine,
the
the
cutting off
of
one
ear.
imprisonment, pillory, Of the reasons for the
and
judgment given no record remains. The case is remarkable, because it shows either that Chambers was culpably timid in Nuncomar's case, or that he changed his opinion after that case was decided, for the statute on which
connected with the Court of which he
is
the chief executive
officer,
has carefully examined for me the records of the Court, and favoured me with a most careful and elaborate note on them, which is my authority
for
1
much
of
what
follows.
The statute put the theft of bills of exchange, &c., on the same footing as the theft of chattels of the like value.
Morton, 356.
VOL.
II.
84

is
[chap.
Shabin was sentenced
the
one of which Chambers
suggested the application to Nuncomar. There is only one further matter to which I need refer.
^
The Charter Act
of
1813 makes some additions
to the
criminal law of the
Supreme Courts.
One
of these
sections provides that upon the conviction of a,ny person for the forgery or uttering of any deed, &c., he may be
transported for any term to any place which the Court may direct. This provision was a practical settlement of the question for the future, but it does not throw light
on the previous state of the law. It is consistent with the view that the punishment of death was considered
too severe.
It is also consistent with the
view that the
common law and the

enough.
statute of Elizabeth were not severe
Upon fully considering all these matters, I think that as a matter of legal theory Impey's view was, to say the
least, defensible.
was certainly inconsistent with later regarded as being on that account I think that the mistake into which the Court fell wrong, was innocent and in good faith. Every one who has much practical acquaintance with law is well aware that in many cases it varies from time to time.
It
decisions,
but
if it is
Is the presence of a priest in orders essential common law of England to a valid marriage ? ^
by the
No
one
can
open to any one to think that the arguments of Lord Brougham, Lord Denman, and Lord Campbell, who thought it was not, were better than those of Lord Lyndhurst, Lord Cottenham, and Lord
that
it is,
now deny
but
it is
Abinger,
1
who thought
it
judges prevailed over the

53 Geo.
^_
^_
2
first
was, although the last three three, because the question

See especially sec. 115.
III. c. 155, s. 114-122.
jîuis (10 CI.
&
Fin. 534).
IX.]

Millis
35
is
was whether
was guilty of bigamy, and the rule

is it
presumitur pro negante. In a contract of life assurance
essential that the
interest of the assured should be in existence
when
the
sum
made ? In 1807 the Court of King's Bench ^held that the interest must continue to the death. In 1854 the Court of Exchequer Chamber ^held the opposite.
Is a
assured becomes payable, or is in existence when the contract was
it
sufficient if it
was
under
man who kills another in a duel guilty of " meurtre " the French Code Penal ? From 1810 to 1828 the
is
Court of Cassation held that he

has held the opposite.
not.
Since 1837
it
These examples, which might be multiplied

extent,
to
any
show that
it
is
not at
all
in 1753 was was applicable to local circumstances, and that it should have held at another time that the date was 1726. If the date 1753 was taken, I do not see that the Act in question was less applicable to Calcutta than it was to London. It must, however, be said that in a doubtful and novel matter of this sort the Court would have acted wisely in saying that an indictment for the forgery as a misdemeanour at common law would be the proper course A conviction upon such an indictment would to take. have been followed by fine and imprisonment to any extent which the Court thought proper, and this would, I
the
Supreme Court should at one criminal law of England as
surprising that the time have held that

it
was
it
introduced into Calcutta in so far as
think, have
ment
1 2
the circumstances a punishNo doubt it was sufficient for the ends of justice.
been under
all
Godsall
V.
Boldero (9 East, 71).

Life Assurance Society (15 0. P. 365)i
Dalby
v.
London and India
36
[chap.
then true that when an act which at
common law was a misdemeanour is made a felony by statute, the misdemeanour merges in the felony, but the offence need
not have been described in the terms of the statute.
The
bond
had been described as " a certain contract in writincf in the words " and figures following," Farrer would hardly have objected that a felony in which the misdemeanour was merged had been proved and that Nuncomar must be ^ acquitted of the misdemeanour to be indicted capitally. Sir William Jones recommended this course in a charge to the Grand Jury of Calcutta in 1785 when he said, ^ '< In
if it
I think
was a writing obligatory, but
forgery permit me to recommend indictments misdemeanour only, since very strong arguments " have been used both at home and here to prove that " the rigour of our modern law in punishing that crime
all cases of
"
"
for the
"
" I give "

"
with death cannot be legally extended to these provinces, no decided opinion yet on that point, nor on
another which
"
may be started, whether if the crime under consideration be a capital felony in India, an
indictment will also
lie
as at
common
law, since
it
has
"been held that a felony merges

"
or absorbs a misde-
meanour."
I say that I think this
would have been

be indicted.
wise, but
to say
^
strictly speaking, it is
not the part of the Court

is
how
or for
what a prisoner
to
The
I remember a case of concealment of birth tried many years ago at Derby, in which the counsel for the prisoner objected that, whereas his client was accused of concealing the dead body of her child by throwing it into a cesspool, she was shown by his cross-examination to have thrown
it
served,
" murder, lie in gaol for six months, and then be tried for her " it fails, she will probably get her sentence over before the next
^
in whilst living. The judge (I think the late Mr. Justice Willes) ob" If your contention succeeds your client will be committed for
life.
If
assizes."
Works,
vol. vii. p. 12.
IX.]
37
prosecutor draws the indictment as lie thinks proper, though as a rule the officer of the Court is the actual
draftsman.
The master of the Crown Office
tells
me
that
in former times indictments presented in the Court of
King's Bench by private prosecutors were drawn by one of the masters for a fixed scale of fees accordingf to the
prosecutor's instructions. be followed in Calcutta.
I
Probably the same course would
cannot find the smallest trace in any part of the argument on this subject, or in any of the speeches on the impeachment of Impey, that any one took the point about the date at which English law was introduced into
Chambers's doubt was as to the suitability of the English law of forgery for Calcutta*
Calcutta.
In his printed speech Sir Gilbert Elliot does certainly
mention the point, but as his argument was that the Supreme Court had no criminal jurisdiction at all over
any native of India in Calcutta or elsewhere, he did not give it the prominence which in my view ought to have
attached to
it.
The next charge

unjust.
against
Impey
is
that whether the

trial
proceedings were legal or not, his conduct at the
was
injustice alleged is summing up scandalous partiality, and the manifestation throughout the proceedings of great anxiety to secure Nuncomar's
The
with
conviction.
As
to this, I
trial,
is
of the
and
can only refer to the account already given to the reprint of the summing up. My
fair,
opinion
that the trial was scrupulously
that the
summing up was perfectly impartial and gave every So far from tracing possible advantage to the prisoner.
in
conviction of
Impey 's conduct any wish to secure at all hazards the Nuncomar, I think he would have been
38
THE IMPEACH]\IENT OF IMPEY.
[chap.
well pleased at Nuncomar's acquittal, as it would have saved him from a painful duty and a heavy responsibility.
^
As
far as
history, little
appears from the reports in the parliamentary was said upon this part of the accusation by
part in the
those
who took
it is
debate.
to
I have referred
in notes to the
because
some isolated remarks, summing up easier to understand them when they are
and bearing. against Impey, which involves
read in connection with the matters referred to than to

state independently their nature
The
an
third accusation
also, is that against Hastings tliey conspired together to cause Nuncomar to be tried and convicted on a capital charge. It was not pretended that there was any distinct proof of this conspiracy,
accusation
indeed, as I have already shown, it was not even directly alleged in the articles of charge that such a conspiracy ever existed. The allegation there made is that cir-
a conspiracy.
cumstances existed which gave ground for a suspicion of These circumstances were these first, the
interest of Hastings in getting rid of Nuncomar secondly, the coincidence in point of time between the accusation
by Nuncomar and the accusation of Nuncomar by Mohun Persaud thirdly, the illegality of the proceedof Hastings
;
ings against Nuncomar ; fourthly, the unfairness of the conduct of Impey at the trial fifthly, his conduct after
;
the
trial in
refusing leave
to
appeal and refusing a
respite.
All this seems to
me
incomplete
materials.
unsatisfactory guesswork upon There can be no doubt that
Hastings had an interest in Nuncomar's being discredited,

^
is
reached.
Sir Gilbert Elliot's printed speech ends abruptly before this matter I did not see the printed speech till See vol. i. p. 170.
after that passage
was sent to the
press.
IX.]

I think it
39
though
of
special interest in his death.
to say he had anyThe coincidence in point time between the accusation of Hastings by Nuncomar
would be too much
and that of Nuncomar by Mohun Persaud was by no
means
trial
close.
charofe Hastings,
Nuncomar appeared before the Council to March 13th. He was committed for
on the charge of forgery,
May
6th, nearly eight
weeks
afterwards.
As
to the illegality of the proceedings against

if
Nun-
there was any illegality it was certainly not comar, known to or suspected by the judges, but incurred in good
faith
by
all
four of them, and not
by Impey more than
the others.
did not in
The
my
alleged unfairness of Impey at the trial opinion exist, and for reasons to be here-
after given, I think that the refusal of leave to appeal, if it was refused, and the omission to respite Nuncomar, for
neither of which was
Impey in any special way responsible, were the acts of the whole Court done in good faith. Where then is the evidence of any conspiracy? It is reduced to the interest which Hastings had in Nuncomar's death, and the coincidence such as it is in point of time
between the two accusations.
That
this is
:
ground
it is
for
a vague passing suspicion is, anything more may be easily disproved. It can be accepted as proof of a conspiracy between Hastings and Impey only by a person who is prepared to assume in general terms has an interest that whenever any one in whose death
I think, true
that
under such circumstances that B, a friend of A's^ may criminal means, A possibly have caused that death by and B must be presumed to have conspired to murder the
dies
deceased.
if
One consequence of such a rule would be that a doctor were the friend of the heir to a large fortune, and the medical attendant of the owner, and if the owner
40
[chap.
died whilst the doctor was in attendance on him, the

doctor
It
is
must be presumed
to
have poisoned him.
Sir Gilbert Elliot said, that undoubtedly a criminal conspiracy may be, and indeed generally is, proved by the conduct of the parties, and not by direct
true, as
evidence of a written or verbal agreement to do something
but mere friendship between two persons, one of Avhom has or may have a reason to wish a crime to be committed which the other has means to commit, and
unlawful
;
which may or may not have taken place, is not enough. It is the interest of the owner that a ship insured should be lost at sea. The captain is his friend and the ship is
lost at sea.
It is
monstrous to say that these facts alone
presumption of a conspiracy between the owner and the captain irrespectively of the circumstances of the loss and the conduct of the captain.
raise a
of the peculiarities of the charge made against conspiracy impliess and Hastings and Impey is this
One
must be proved by the conduct of at least two persons This is not done jointly pursuing an unlawful purpose. It is suggested that Hastings had in the present case. a motive for wrong doing, and that Impey misbehaved
any description tending, however reto show a conspiracy with Impey, was ever even motely, imputed to Hastings. The following would be an exactly
himself, but no act of
The owner of a ship has an interest in its parallel case. It is lost, and there is evidence that it was lost lost. being Is this evidence of a the misconduct of the captain.
by
At the conspiracy between the owner and the captain ? for a suspicion that such very utmost it may be ground
This is a stronger case a conspiracy may have existed. than that of Hastings and Impey, for the captain of a ship is the owner's agent for many purposes, and is usually
IX.]
41
appointed by and dependent on liim, but Impey was not He had not been appointed by and Hastings's servant.
was wholly independent of him. For these reasons it seems to me that the coincidence of time between the two accusations, however fitted to strike the imagination and to excite a vague suspicion
against Hastings, ought not to be regarded as sufficient evidence to render guilt on the part of Hastings probable even in a low degree.
To suppose that the matters stated prove anything as against Impey is to show either ignorance or looseness
of thought, for the
to
argument assumes that
Impe}''
had
do with the early steps in the case, and so something with the time when the case was brought before him.
This
is is
contrary to the
to
fact.
Whatever wickedness
Impey, he could not interfere with the time when the prosecution began. His opportunity of
imputed
misconducting himself Avould not arise
till
the prisoner
was brought before him by others. He was not even the Nuncomar was committed by committing magistrate. and Lemaistre, who could not, when Mohun Hyde Persaud swore an information before them, refuse to
proceed,
or, if
they thought
it
a case for committal, to

his trial at
commit.
When Nuncomar
was committed
the next session was a matter of course, over which none of the judges had any influence whatever. I have
already pointed out the absurdity of the language of the article of impeachment which implies that on barel}^
hearing a report that Nuncomar had accused Hastings of corruption, Impey ought to have refused to try Nuncomar for forgery. The readiness with which Macaulay
and
Mr. Merivale
accept
the
if
conchisions which the
impeachment draws mainly,
not entirely, from
the
42
[chap.
circumstance that the two accusations coincided in time
makes me think that Macaulay overlooked a matter

with which he never had any practical familiarity, and that Mr. Merivale for the moment forgot what his made perfectly early experience at the bar must have
familiar to
namely, that a judge cannot exercise any discretion whatever over the time or place of the triaJs which take place before him, and that when a man is solemnly accused of a crime, the judge can do
facts,
him
the
nothing but try him.
These considerations are enough to show that even

unexplained
Hastings or
it
if
the coincidence in time between the two accusations were
would prove nothing against either Impey, but it was explained by the evidence of Boughton Rouse and Farrer already referred to. Bougfhton Rouse shows what the nature of the civil
proceedings was, and
how they stood when the Supreme Court arrived in Bengal. Farrer takes up the story at the point at which Boughton Rouse had left it, and
shows that the criminal proceedings grew naturally out of the civil suit, and were carried on as quickly as
circumstances allowed.
In particular Farrer proved that
the prosecution of
Nuncomar for forgery had been deteron long before Nuncomar accused Hastings of mined
and explained the circumstances which led to the warrant not being issued till May, 1775. It must have been issued within a very few days after the forged deed was procured by the solicitor of the prosecutor, and it could not have been issued before. For these reasons it appears to me that there was
corruption,
was any conspiracy absolutely no evidence that there between Hastings and Impey in reference to Nuncomar's
trial.
IX.]
43
know
that I
am somewhat
singular in this oijinion,
and that at
Mr.
"
^
Herman
Merivale affirm
astonishes
least
two eminent writers
Macaulay
and
fidence
which
the contrary, with a conme. Mr. Merivale says,
When
Hastings, through Sir Elijah Impey, the chief
"justice,
"
took Nuncomar's
"
Nuncomar's accusations), paralysed by their determination. This judicial murder, " Mr. Merivale gives no for such it undoubtedly was, &c." reason at all for his assertion. Macaulay characteristic" every one, idiots and biographers exally asserts that " believes that Hastings was the real mover in the cepted," prosecution of Nuncomar, and that "no rational man
"
life by way of reply" (to Francis seems to have been
can doubt
General."
little
"
that
Impey took the course

"
of refusing to
respite
"
Nuncomar
in order to gratify the

his other
Governor-
It is to
be regretted that Macaulay did not

to
accomplishments, but his faith was great, and throve at times on what In this particular case seems very insufficient food.scepticism
add a
he condescended to give something of a reason for the faith that was in him, and indeed he seems to admit the possibility that he might not have been
absolutely certain of Impey' s subserviency to Hastings (though in fact he was so), but for a piece of evidence
If we had ever had any doubts " on this point, they would have been dispelled by a letter " which Mr. Gleig has published. Hastings, three or
supplied by Mr. Gleig
"
"
"
four years later described Impey as the man to whose support he was at one time indebted for the safety of
" his
"
These strong fortune, honour and reputation.' words can refer only to the case of Nuncomar, and they
'
Life of Francis,
ii.
34.
44
[chap.
" "
must mean that Impey hanged Nuncomar

support Hastings."
in order to
The argument founded on this letter appears to me to The exact date of the letter is not given by Mr. Gleig, but it must have been written in 1780, at
be worthless.
the height of the contest between the Governor-General and Council and the Supreme Court to which it relates.
I feel an injury done me by a man have borne a sincere and steady friendship during more than thirty years, and to whose support I "was at one time indebted for the safety of my fortune, " honour and reputation, with tenfold sensibility. And
The
full
phrase
I
is
"
" for "
whom
"
"
under every consciousness of the necessity which has influenced my own conduct and the temper with which " I have regulated it, I am ready to pass the most painful
reproaches on myself on the least symptom of returning kindness from him." There is much more to the same
It is
"
"
purpose.
effect
.
remarkable that a passage to the same
appears in a letter from
March, 1780.
"
Impey
"
says,
Impey to Dunning in The power which is exerted
would not have existed in the hands in " it is if I had not helped to keep it there, and it which " was used against me at the time when I was living, in
asrainst
me
"
"
all
appearance, in the utmost confidence of familiarity
This has hurt me with the possessor of it." " much more than any anxiety which I felt during all the " time that I knew Ciavering was endeavouring to ruin
..."
"me in England." Is this the language of two murderers about each other ? Would one such wretch look back with affectionate regret to the happy time
when by the hand of the other he assassinated their common victim ? Would he say of him to a common
1
II.
255.
IX.]

"
45
friend
"
"
Dear Impey," or
"
dear Hastings,
how
sad
it is
to
see
how
"
what " some years ago ? If there was such a bond of infamy between two men, each would shun all reference to it, especially to a third person, as he would shun the avowal even to himself of any other abominable and horrible
Macaulay's supposition
is
different his present feehngs to me are from they were when he helped me to murder Nuncomar
crime.
and improbable, but

these
also quite unnecessary.
not only revolting Each of
passages, to my mind, obviously refers to the support given to Hastings by Impey and the rest of the
judges,
when Clavering
manner
the
office of
tried to dispossess Hastings from Governor-General, in the summer of 1777,
in the
related
by Macaulay himself, and when
Hastings was secured in his office entirely by the view taken of the case by the judges to whom the rival claims of the parties were referred.
Mr. Beveridge draws from the coincidence of dates and one or two other circumstances on which I have com-
mented
in the course of
my
narrative, the inference that
"the prosecution would never have occurred had not Mohun " Persaud been suborned by Hastings or his friends"
he appears to think
it
does not matter which
it
was.
Notwithstanding this body of opinion, I go far beyond -the assertion that there is no evidence of a conspiracy The circumstances when between Hastings and Impey.
appear to me to render the supposition of such a conspiracy improbable in the highest degree. I think indeed not only that there is no evidence that
fully considered,
there was any such conspiracy, but that there are reasons as strong as can in such a case be produced to show that there was no conspiracy, though of course absolutely to prove such a negative.
it is
impossible
46
[chap.
Many circumstances lead me to this conclusion, none of which appear to have occurred to those who have written on the subject, though they seem obvious enough to any
one
who
are of two kinds,
considers the matter with a lawyer's eye. They first the difficulties of the undertaking
which render it unlikely that such a conspiracy would be set on foot, and secondly the conduct of the parties which make it improbable that it was in fact entered into.
When
"
First with regard to the difficulties of the undertaking. it is said that every one but an idiot or a
believes that Hastings
was
"
biographer the real mover in the proseis
cution," the question immediately occurs, what " " by being the real mover in a prosecution ? If
meant
Hastings
had been
wishes,
to cause
in such a position that a
like
mere expression of his the expression attributed to Henry II in
reference to
Thomas a'Becket, would have been sufficient Nuncomar's destruction, it might have been said
would be
it
that to call for definite proof of the use of such expressions to require too much, but Hastings had no power
of the sort.
If Nuncomar was to be judicially murdered, was necessary that he should be prosecuted in the common way, and that every legal form should be strictly To be the "real mover" in such a complied with. business it was necessary that Hastings should pay, or
guarantee the payment of the expenses, employ by himself or his agent the solicitor who got up the evidence, or take some other definite substantial part of the same
kind in the proceedings. He did actually prosecute Nuncomar for conspiracy, and his letter to his agents describing the steps he took to test the truth of Comaul O'
Dien's statements, and his fear of being engaged in an
ill-founded prosecution, clearly show how fully he appreciated the danger of such a But the prosecution of step.
IX.]

for forgery
47
Nuncomar
way
infinitely
would be an undertaking more dangerous and difficult than
in every his pro-
secution for conspiracy. The prosecution for conspiracy Hastings both could and did avow. Its success depended
upon the credit given to the evidence of a single witness, and on the view taken of statements made by Nuncomar' s
co-defendant Fowke, before the justices.
The prosecuIt
tion for forgery was altogether a different matter. an incident in one of those obscure intricate
was
native
quarrels which as Hastings's long experience

i
must have
taught him, Tare hardly intelligible to Europeans. To suppose that he would suddenly mix himself up in such a matter as the suit between the executor of
Bollakey Doss and Ni;ncomar, is like supposing that a man would rush into a chancery suit to which he man who embarked in such an was not a party.
undertaking would be morally certain to fail ignominThe enterprise would be possible only to a person iously.
intimately acquainted with the details of the earlier
liti-
That Hastings, in his capacity of Governor had gation. been the nominal head of the Court before which that
litigation took place, is true.
But
it is
equally true that

it
he knew no more of the details of the business in

the Chancellor of the Exchequer business of the Court of Exchequer.
than
used to
know
of the
Nuncomar's attack upon Hastings was made on the

13th March.
of native documents
All sorts of contrivance, consultation, study and books of account in various

state,
languages and in an imperfect
would be necessary
before a prosecution could be entered upon.
But
till
April 24th the deed alleged to be forged was in the custody of the Court witli many other papers in the case.
48
[chap.
About this time they were delivered to Mohun Persaud, and Nuncomar was arrested on the 6th May. How was Hastings, who was previously ignorant of the dispute, to get it up and prepare to commence proceedings in the There is not the smallest coui'se of ten or twelve days ?
proof, there is not
even any suggestion that Hastings ever
made any such

In the
investigations personally, or
trial for conspiracy,
by a solicitor. was examined as to Hastings
his connection with the prosecution for forgery. No question was asked as to phatically denied it.
He emwhether
he had made any such inquiries as must have been made, whether he had employed or advised with any solicitor or whether he had paid or guaranteed the expenses, whether In he had taken any steps to get up evidence, &c. short, no one act or omission on his part was alleged or
suggested by the counsel
who cross-examined him

he in
fact
to
that, notwithstanding his denial, " in the prosecution. the " real mover
show
was
In so small a
society any such proceedings on his part would have been reported to the parties concerned, and might have been
brought to light by cross-examination. Consider for a moment the only specific suggestion ever made about Hastings's part in the prosecution, Mr.
subBeveridge suggests that Hastings or his friends " orned Mohun Persaud to prosecute. Is this likely ?
said, was Nuncoand his enmity was independent of, enemy, and as far as appears unconnected with, any which may have been felt by Hastings, and there would therefore be no difficulty as to his motive for prosecuting Nuncomar even if it had not been explained. In the second place (which is much more important, and to my mind decisive)
"
Mohun
mar s
Persaud, as
Nuncomar himself
bitter
IX.]
^
49
Mohun Persaud had been acting as attorney for the executor Gungabissen in the civil proceedings from 1772 to the latter part of 1774, and thus he must have been
minutely acquainted with every point in the case which Now to Hastings neither was nor could possibly be.
charge a man with forging a deed in a private transaction between merchants who had many dealings and
what no sane man would do unless he were acquainted with all the details and with the Mohun Persaud had accordrelations of the parties.
cross
accounts
is
own account (which is corroborated by Kouse's evidence), suspected from the very Boughton He knew all that could first that the deed was forged.
ing
to
his
be
to
known
as to the relations
in
what appeared
their
between the parties, as papers and accounts. He
that the alleged debt of Bollakey Doss to Nuncomar not appear in his books, that the language of the did bond was in itself suspicious and that the transaction
knew
which
it
recited could hardly

of these matters
have taken
place.
Hastings
knew none
and was hardly
likely to take
Mohun Persaud's word for their existence. We have seen how cautious he was in giving credit to Commaul O Dien on a much simpler matter and how he hesitated
Why in a matter of and importance should he incomparably greater intricacy even if Mohun repose blind confidence in Mohun Persaud,
before acting on his statement.
Persaud asked for his aid or countenance ? Much more, " " why should he or his friends suborn Mohun Persaud
to prosecute
would go out of his way to bring " " about such a step (and suborn must at the very least mean this), unless he knew the details of a most intricate
?
^
Who
Evidence of Mr. Boughton Kouse before tlie Impeachment Committee,

II.
p. 30.
VOL.
50 affair
?
[chap-
Hastings or his friends tell that Nuncomar might not have documents clearly proving that the transaction was a thoroughly genuine one, that he might not e.g. have a receipt for the jewels referred to in the bond, correspondence about them, and in particular the orio-inal of some such document as the Karar-nama which
How could
Kissen Juan Doss said he had seen and on which Impey remarked that if the jury thought it had ever existed it would be the height of injustice not to acquit the
prisoner
^ ?
To rush prematurely into such a prosecution would be to court defeat and disgrace. Yet it is supposed that upon some vague suggestion that Nuncomar had committed some forgery which affected Mohun Persaud,
of the Hastings and his friends, who could know nothing " " him (whatever that may mean) to suborned details,
prosecute.
It
^
may
be asked whether
Mohun Persaud
in carrying
case
These considerations were forcibly impressed upon my mind by a which it was my duty to try as these sheets were being printed. It
was the case
of R. v. Thomas and others for forging the will of James and Whallej, tried at the Central Criminal Court November 24th-29th, December 1st and 2nd, 1884. An accomplice and one of the persons
afterwards convicted
made statements to the
solicitor for the prosecution,
He did not crime. minutely describing the part they had taken in the act upon them, nor would any prudent man, I might say any man in his senses, have done so until they had been corroborated by all sorts of collateral evidence in a way which showed that their authors, bad as they
were,
had on that matter told the truth. It was shown by elaborate examination that the will itself bore marks of fraud, and that its provisions were inconsistent with letters written and acts done by the
and
after its alleged execution.
testator before, at,
The
collection of this
evidence was a matter of mouths, and no one would have been capable of collecting or even understanding it who had not mastered the details
of more than a year's previous litigation which had ended in a comof this sort grow from promise subsequently set aside. Prosecutions
deep roots.
IX.]
THE impeachme:?^? of IMPEY.
51
on tliis prosecution was in no degree influenced in his own mind by the events which were passing in Calcutta ?
he probably was. He seems to have set the prosecution on foot before the quarrel between Nun com ar
I think
and Hastings took

it
place,
and he probably
rejoiced
when
did take place as he may naturally have thought that the Supreme Court was not independent of the Governoralso
General, and would not be just to his accuser. He have expected that most of the jurors would be
may
23re-
judiced against Nuncomar as an enemy to the European interests, as Gilbert Elliot long afterwards avowed that he was but it does not follow that the Supreme Court
;
was corrupt, or that the jurors were prejudiced, or that the trial was unfair because Mohun Persaud may have been encouraged in his prosecution by the hope that this would be so.
If Hastings interfered in the prosecution, he incurred a tremendous risk of utter ruin for no reason at all.
Nuncomar had made his accusation. He had named the persons who could support it. He had put the majority
which even after his minded, carry on the prosecution of Hastings. Hastings on the other hand had prosecuted Nuncomar for conspiracy, and procured his committal for trial. Each had done his worst against the other.
of the Council into a situation in
death they could,
if so
Why in
such circumstances should Hastings embark on

first,
a second prosecution which would embarrass the
and
the
which was in
itself
speculative and
dangerous
in
highest degree ? Nuncomar was all but acquitted as it was. The immediate cause of his conviction was his own
want of judgment, combined with the effect produced upon

the jury by the mass of perjury put forward jn his defence, but Hastings could not know that he would take the
E 2
52

If
[chap.
course which in fact he did take.
he had
guiltily
furthered Nuncomar's prosecution he must have had before him the fear that Nuncomar or his advocate would turn
upon him, and would say publicly
in Court
I
;
have no
I cannot
witnesses, the witnesses to the deed are dead
refute specifically an accusation five years old, but I say that my real crime is that I have accused the Governor-
General of corruption, and he wants to put me out of the How could Hastings tell that such a defence vvav.
would not be made and would not succeed
and
if it
had
succeeded, what would have been the consequence but utter irremediable ruin and disgrace ? What was there to it? Farrer had only to write for Nuncomar a prevent
short speech no longer than the letters which
Nuncomar
himself wi'ote to
to have
it
be done.
not do so
?
the Council and to Ciaverinsj, and read by the officer of the Court, and all would How could Hastings know that he would
Of the
length.
opportunities which the case afforded for crossits
examination and of
absence I have already spoken at
Again, consider what Hastings could have done. His Now any one who will object was to destroy Nuncomar.
study the trial of Nuncomar will I think agree with me in the opinion, that the case for the prosecution was far
from being overwhelmingly strong. It was little more than a prima facie case. It was moreover far from being for the proceedings in so strong as it might have been
;
the
in the Mayor's Court, which as Farrer himself admitted were so full of suspicious circumstances that he would not put them in for the defence, were
civil
suit
not put in by the prosecution. Is it likely that Hastings, having resolved on Nuncomar's destruction, would have
IX.]
53
prosecuted him so inefficiently ? Hastings either knew of these proceedings or he did not. If he did not, how
could he prosecute at
all
?
If
he
did,
why
did he not
put them
in
If Hastings were capable of corrupting judges, he was

also capable of suborning false witnesses.
Why did
he not
do so
in
Obviously he did not, but was he the man to commit a crime by halves ? Was it likely that he should
?
some mysterious way corrupt four judges, and yet neglect the precaution of giving them the evidence which would secure and justify them in carrying out
their part of the bargain
?
This introduces the next difficulty in the way of supposing that there was a conspiracy between Hastings and
Impey was but one of four judges, and he had absolutely no power in the matter of Nuncomar's trial which was not equally possessed by all of them. If therefore Hastings was the real mover in the prosecution, and
ImjDey,
was determined
to secure a verdict, it would be necessary not merely to corrupt Impey, but to corru^Dt the other three judges and all the twelve jurymen.
in which Macaulay, Mr. Merivale, and Mr. overlook this matter appears to me a proof of Beveridge The way in which culpable haste in their judgment.
this
The way
motion
argument was dealt with by Sir Gilbert Elliot in his for the impeachment seems to me uncandid. Macaulay and Mr. Merivale take absolutely no notice
Sir Gilbert
of the existence of the other three judges. Elliot misstates Impey's argument founded
on this
fact
and gives a wholly irrelevant answer to it. ^ Impey justly remarked that he was but one of four judges,
the authority of each of the other three being equal
1
Pari. Hist. xxvi. 1412, 1413.
5i

his
[chap.
to
own,
that they were unanimous throughout,
them were still administering justice in India, ^ namely, Chambers who succeeded him, and Hyde who
that two of
held
for
office till
partiality
he died in 1796, that he had no motive which was not common to all. It also
appeared from Farrer's evidence, given between Impey's

took a
defence and Sir Gilbert Elliot's accusation, that Impey less prominent part in the matter than Lemaistre
and Hyde, who committed Nuncomar, and who, according most of the questions which were asked of Nuncomar's witnesses. It is true that
to Farrer's evidence, asked
of
it
Impey summed up the evidence, but each or any one them might also have summed up if they thought
necessary,
said.
and by their
silence they acquiesced in
what
he
Sir Gilbert Elliot replied ^ that he never heard that an accomplice could plead in his defence the
all
To
this
" Mr. Paley, in his Chapter of impunity of others, that " Crimes and Punishments, says that if crimes are com"
"
mitted by a gang it is proper to separate in the punishment the ringleader from his followers," that in many
respects Impey was a ringleader, and that in his opinion " the punishment of the Chief Justice alone will answer
"
all
the ends of justice."

if
's
This would have been to the
purpose Impey argument had been that it was unjust that he alone should be singled out for punishment from
four persons equally guilty, but it is irrelevant to the argument that it was morally impossible that Hastings
should have conspired, not only with him, but with three
1
it
An alleged exception to below.
tliis
unanimity
pass over here to discuss

in July, 1796,
Lemaistre died in November, 1777,
Hyde
Chambers
in 1803 [Echoes of Old Calcutta, 71). a Pari. Hist, xxvii. 383-384.
IX.]
THE IMPEACHMENT OF ]MPEY.
55
other persons, to
whom
must have been

at
all.
as guilty as
no one ascribed guilt and who he if any one was guilty
jurymen, no one ever asserted that any attempt was made to corrupt them. No one has ever produced, or will ever be able to produce, from the report
to the
As
of the trial a
word used by any of the judges which could have the least tendency to persuade the jury to find a verdict of guilty, or to intimidate them had they
been capable of intimidation, into finding such a verdict. The pannel was returned by Macrabie, the brother-in-law of Francis. Nuncomar challenged êighteen jurymen.
Touchett, afterwards the leader of the agitation against the Supreme Court, sat on the jury. Upon all this Sir
Gilbert Elliot appears to have been absolutely silent, but They do surely these are points of the first importance.
not seem to have occurred to either Macaulay or Mr.

Merivale.
said that the jury
however, they might properly have were not unlikely to be prejudiced to the against Nuncomar on account of his enmity and partly, perhaps, on account of his having English, This revealed, or professed to reveal, corrupt practices.
I think,
consideration does not of course affect the value of the
evidence
itself,
but
it
diminishes the value of the verdict
apart from the evidence.
Passing from this, by what motive could Hastings have corrupted Impey or any of his brethren ? Impey was no doubt his old friend. They had been schoolfellows
and had known each other

is
for
thirty
years,
but mere personal friendship

in
to
at once too
amiable and
common
cases too
weak a motive
to induce a
it
man
commit the
foulest of all murders,

^
and
certainly did
Mr. Belchambers's note.
56
THE IMPEACHMENT OF IMPEF.

Impey from
acting afterwards in a
[chap.
not prevent
sides, this
way which
was in the highest degree unwelcome
motive affected Impey judges to be corruj)ted. If men were capable of being seduced into so dreadful a crime at all, it could be only
Beto Hastings. alone out of the four
by
of
coarse, gross, tangible motives,
money
or office, or
by bribery in the shape some other palpable advantage. It
has never been alleged that Hastings bribed the judges He could not do so by a job of any in any of these ways.
and to say nothing of the danger of asking their consent for such a purpose he was sure not to get it, for he was in a minority.
sort without the consent of the Council, It has been alleged that five years after the trial and execution of Nuncomar, Hastings bribed ImjDey to sacrifice pretensions made by the Supreme Court by giving
place of judge of the Sudder Diwani Adalat under the Company, with a large salary. On this I shall have something to say hereafter, but in the meantime I may observe that, whatever may be the weight of that
accusation, it is not alleged either that it had any connection with Nuncomar's case, or that before that time Impey received any valuable consideration whatever from
him the
Hastings for the murder in which he

part.
is
said to have taken
true of the other three judges and of the twelve jurymen. Why should all these sixteen
is
The same
persons commit so frightful a crime without any motive whatever ? There can be no question as to the nature of
Sir Gilbert Elliot said of it, no the crime imputed. " doubt in characteristically exaggerated language ^ I " do solemnly declare that of all the enormities I have
:
"
ever heard of in the t3'ranny of

1
man
over man, of
all
"desperate or wanton
exploits either recorded in
the
Pari. Hist, xxvii. 321.
IX.]
57
"
history of
human
crimes or conceived in the most ex-
"
travagant and the wildest flights of imagination and " invented guilt, this one detestable act has always ap" self the peared to me to involve within its single
" " " "
the most greatest variety, the greatest complication, accumulation of guilt, to stand the highest in the lofty
scale of offences,
and to claim an undisputed pre-eminence
in
human
crimes."
"
the end of this speech i Sir Gilbert Elliot said that he had he trusted sufficiently established the crime ;
At
"
"
" "
''
remained only to prove the corrupt motive, and he admitted that unless a corrupt motive could be proved
it
the impeachment ought to
fall
to the ground.
The
"
"
" "
motive was to be judged of by the tendency and effect The tendency was to impress the natives of the crime. with the idea that to accuse any person in power would
fatal to the accuser, and such was the effect, for that such an idea was entertained at that time was proved
be
in evidence."
1
Ibid. 437.
Sir Gilbert Elliot's
words
state the established doctrine
of the eighteenth century Whigs about niotive, devised, no doubt, because I think it is of its supposed bearing upon the law relating to libel. confusion between motives and intentions. an based
upon
ignorant
The History of the Criminal Law, ii. pp. 110, 360. If Impey absurdity of the Whig theory is well illustrated by this case. or really did try really did conspire with Hastings to destroy Nuncomar, him unfairly, what did his motives matter ? If they were as good as
As
to this see
my
and an unjust judge. If possible he would still be a judicial murderer were as bad as possible he could be no more. If, on the other hand, they
with Hastings, what fairly and did not conspire he had motives for doing the contrary ? The existence of a motive for guilt is always an important article of evidence in determining whether the guilt exists, but it can hardly ever form a constituent element I know of only one in the guilt itself, according to the Whig theory. The motive is included in the definition of the to this rule. exception crime itself in 24 and 25 Vic. c. 100, s. 53, which relates to the abduction
Impey
did
it
tried
Nuncomar
if
matter
of
women "from motives
of lucre."
58
THE IMPEACHMEXT OF IMPEY.
[chap.
No argument comes to this committed without a motive. But here a crime has been committed. There must therefore have been a motive. As there is no evidence of any specific motive, the motive must be inferred from the effect of the crime.
:
As
to motive, Elliot's
is
crime
But the effect of the crime was to intimidate natives from making complaints of Europeans. Therefore, four judges and twelve jurors unanimously agreed to commit a fearful ci'ime in order to intimidate natives from complaining of Eurojêans. Thus, in Sir Gilbert Elliot's view, the crime proved the motive and the motive proved the crime, but apart from this I do not think it credible that for a mere
number of persons would band themselves together to commit an odious crime, in which no one of them had any direct personal interest.
general political motive a large
The jury may have been
prejudiced, but
all
Calcutta jurors
were certainly not blind partisans, was Nuncomar acquitted on the

against Hastings
to
is
?
for if
they were,
why
As
charge of conspiracy for the judges, the crime imputed
and degree from that which It is that for a imputed to the jury. general political motive, in which no one of them had any direct personal
is
them
of a different kind
interest,
they
which
leave
to their
conducted
applied to Nuncomar's case a law knowledge did not apply to it secondly, his trial partially; thirdly, refused him
first
;
to appeal; and fourthly, refused to respite him, acting in each case with full knowledge of the
illegality or injustice of their conduct,
put to death a
man
who,
if
guilty at
of a comparatively trifling offence. ever conduct themselves in such a
and in order to all, was guilty Did any four men

for
manner
such a
motive
IX.]
THE IMPEACHMENT OF IMPEY,
59
Apart from this, did the motive suggested influence the judges of the Supreme Court at all ? Were they
likely to wish to prevent natives
Europeans was in fact afterwards alleged

?
The very
from complaining of was likely to be, and opposite

to be their temptation.
The great complaint made

Council and by
all
against
them both by the
India was that by enteractions against such officials for the discharge taining of their official duties they prevented the collection of
the
officials in
the revenue and paralysed the administration of justice. The Europeans of Calcutta earnestly pressed that trials
before the
Supreme Court
in civil cases
might be by jury.
They could have no reason for that request except that the judges were unduly favourable to complaints by
natives.
of Hastings and Impey appears to me to the suggestion that they did, in fact, conspire negative against Nuncomar as emphatically as the matters just
The conduct
mentioned negative the probability that they would do so. Hastings's conduct throughout, as I have already shown, was not that of a conspirator. His prosecution
for conspiracy would, if he was actually himself to accuse Nuncomar of forgery, have conspiring been an act of the grossest folly. He would expose
of
Nuncomar
himself by it to cross-examination and detection. He would embarrass himself by having to carry on two
prosecutions at once.
He
risked (and
if
he was a concon-
spirator he actually incurred) the disadvantage of having

his witnesses discredited, for
Commaul O Dien was
siderably discredited and probably disbelieved in one of the cases for conspiracy. In a word, the prosecution for conspiracy seems to me to make it improbable that
Hastings was a party to the prosecution for forgery.
60
THE IMPEACHMENT OF IMPEY. One

small
matter,
[chap.
which
has, however,
some
sig-
nificance,
may
be mentioned here.
Sir Gilbert Elliot
argued that the resolution to prosecute Nuncomar for forgery could not have been taken till after Nuncomar's
Hastings, because Driver the attorne}^ did not retain Farrer as counsel for the prosecution.
accusation of
Probably Driver did not absolutely determine on the prosecution till he had got the forged bond in his
possession which was towards the end of April, save the fee did not retain Farrer till after
and
to
Nun-
comar had secured him. But the inference from Farrer's not being retained seems to me to be favourable to If Hastings had been the real mover in the Hastings, jsrosecution for forgery, and if Impey had been advising him, Sir Elijah would assuredly have said, "you must
retain Farrer."
plaintiffs
In the nature of things prosecutors and

first
have the
choice of counsel, and the fact
that
Nuncomar
then in
know
which
retained the only comj)etent advocate Calcutta proves that his prosecutor did not how to take advantage of his position, knowledge
Impey's
experience
injustice,
Assume Impey's nothing so much

available
must have given him. and he would have desired
as that the only competent advocate should prosecute Nuncomar, This would have saved him from the necessity of taking practically any steps in the matter at all, and would have enabled
him
to
try
the
case almost
silently.
That Hastings denied on his oath and in emphatic terms all connection with the prosecution proves little.
man capable of committing such a crime would be capable of denying it on oath falsely. The facts that his statement was not impeached by cross-examination, and that he voluntarily exposed himself to cross-examination
IX.]
61
prove much. They go far to convince me that he knew he had nothing to conceal. His evidence calls forth a
curious remark from Mr, Beveridge. Being asked, " Did you " ever directly or indirectly countenance or forward the
"prosecution against Maharajah Nuncomar?" he said, " I never did. I have been on my guard. I have carefulty " avoided every circumstance which might appear to be
"
an interference in that prosecution."
Mr. Beveridge
seems
to treat this as a statement consistent with the
Not noticing theory that he suborned Mohun Persaud. the words " I never did," Mr. Beveridge says " no doubt
"
"
he was on his guard, and so I suppose was Count Conii]gsmark when he employed bravoes to assassinate " Mr. Thynne in Pall Mall. Coningsmark got off in con" sequence of his precautions, and so too did Hastings,
" "
but most sane people I fancy do not think the better of him on that account." Very few sane people think
anything at all about either Hastings or Coningsmark. Few have studied either case sufficiently to be entitled to
have any
sort of opinion
upon
it,
but I think I could
show that Coningsmark's escape was not altogether or even chiefly due to precautions taken by him but be that as it may, there is this broad difference between the two cases. Mr. Thynne was unquestionably assassinated, and that by three persons closely connected with Coningsmark, whom he had brought into England just at the moment of the crime on different pretexts, and with whom he was in close communication at the time of the No one ever doubted that Thynne was assassination. murdered by Coningsmark's friends. The only question
;
He was See my History of the Criminal Law, vol. i. pp. 407-8. saved by the protection of the judge (Pemberton) and the favour of Charles II. See his case, 9 St. Tr. 1., and in the memoirs of Rereshy.
^
62
[chap.
was whether they acted by his orders. But the very question at issue is whether Nuncomar was judicially murdered or executed in the ordinary course of justice. If in truth Hastings never did in any way countenance the prosecution, he at all events
was not guiltyof a judicial murder, and his innocence if established goes far to prove that no murder at all took place. The fact that he was on his
guard against the appearance of taking part in the matter is only what might be expected if he really did take no part. A dies. The question is whether he
died of arsenical poisoning or of disease of the bowels. The suggestion is that his doctor administered arsenic in
the interest of
the
heir.
is
asked
if
he ever
" procured the doctor to poison A. He says, I never did. " I was on my guard. I avoided everything which could "
suggest such a thing."
Would
it
be
fair to
remark,
"
"
Your answer admits your
guilt.
An
innocent
man
would have taken no precautions." The utmost that the answer would really admit, would be that the witness knew he might be suspected. No doubt Hastings knew well that people would think what Mr. Beveridge says.
far
The conduct of Impey tends to prove his innocence more strongly than even that of Hastings, and is
indeed, to
my
mind, a conclusive proof that there Wcis no
I have already given at great length conspiracy at all. and in minute detail an account of the trial, and have
reasons for thinking that it was not only absolutely fair, but even lenient and indulgent towards Nuncomar. If this conclusion is right, it seems to follow
stated
my
either that there
was no conspiracy or that
if
one, Impey did not carry out his part in it purely This argument appears to me gratuitous supposition. too plain, strong, and concise to be capable of being
there was
IX.]
63
strengthened by further observation or iHustration. I may, however, observe that the fairness of the trial
appears not from one or two isolated points, but from a long series of matters which display themselves in their
true light only
upon a patient study of the whole proceeding, which so far as I am aware was never undertaken
by any competent person till the publication of this work. For all these reasons I am of opinion that there is absolutely no evidence that either Impey individually,
the judges of the Supreme Court collectively, did with Hastings to murder Nuncomar under the conspire forms of law, and that there is strong evidence to show
or
that no such conspiracy ever existed, and that Hastings was in no way concerned in the prosecution.
The last charge against Impey was that he wickedly refused to respite Nuncomar, and upon this I think more
has been laid than on the other parts of his Macaulay states this view of the case wi^h his usual vigour in the following words
stress
conduct.
have respited Nuncomar we "hold to be perfectly clear. Whether the whole pro" ceeding was not illegal is a question. But it is certain
to
"
"That Impey ought
that whatever may have been, according to technical "rules of construction, the effect of the statute under " which the trial took place, it was most unjust to hang a
"
"
The law which made forgery forgery. England was passed without the smallest " reference to the state of society in India. It was un" known to the natives of India. It had never been put " in execution amongst them, certainly not for want of " delinquents. It was in the highest degree shocking to "all their notions. They were not accustomed to the " distinction which many circumstances peculiar to our
for
Hindoo
capital
in
64

state of
[chap
"own
society have led us to
make between
"forgery and other kinds of cheating. The counter" feitinof of a seal was in their estimation a common act " of swindling nor had it ever crossed their minds that "it was to be punished as severely as gang-robbery or " A just judge would beyond all doubt assassination.
;
" have
" "
reserved the
^
case for the consideration of the

of
sovereign, but
delay."
Impey would not hear
mercy
or
is followed by the description already Nuncomar's execution, and that by Lord quoted Macaulay's final judgment on Impey.
This passage
of
"
Of Impey's conduct
"
severely.
We
it is impossible to speak too have already said that in our opinion he
"acted unjustly in ^ refusing to respite Nuncomar. No " rational man can doubt but he took this course in order " " to gratify the Governor-General (here follows a refer" " "
ence to a letter of Hastings's already observed upon). It is therefore our deliberate opinion that Impey, sitting
as a judge, put a
man unjustly to death in order to serve a political purpose."
This vigorous language sums up, with great vigour and of Sir Gilbert Elliot's point, the substance of a great part
of speech against Impey, and of that part of the article
impeachment against him which
relates to this matter.

It is
The topic cannot be disposed of in a few words.

^
The gross unfairness

further on.
of this last observation will appear from
what
is said
motion,
^ The earlier passage suggests that "a just judge would have reserved " the case for the consideration of his sovereign," apparently of his own " refused " nebut here it is that
charged
Impey
(not merely
Lord implies a request. Macaulay would have been puzzled to answer the question "Who asked for I believe that no one did so, and it makes a great difference, a respite 1
glected) to respite
Nuncomar.
refusal
IX.]
65
by very much the most plausible part of the charge

against Irapey.
In considering
in mind,
is
this matter, the first point to be borne that for the course taken, the whole of the
court was responsible, and that there is absolutely nothing to show that Impey took any part in the matter which
was not taken equally by Chambers, Lemaistre and Hyde. Impey positively affirms that this was so in his letter to Governor Johnstone, already quoted, and in this he is
corroborated by ^ a letter addressed by all the Judges to the Court of Directors, August 2, 1775, which says, "Our judgments have in every instance been unanimous
"
whatever representations may be made to the contrary. Impey had no power and no interest apart from the other
members
of the Court,
and
to single
him out
as if
he
Avas
is
individually responsible
for
Nuncomar's
execution
grossly unjust. If any one is to be censured at all
Chambers
is
much
for
more open
to censure
on
this
head than his brethren,
he appears not to have been altogether satisfied that the conviction upon the statute of 2 George II. was right. He ought then to have been more disposed than his brethren to a respite, but he does not appear to have
sucforested one.
Macaulay says that he "holds it to be perfectly I clear that Impey ought to have respited Nuncomar." hold it to be perfectly clear that Impey had no power Nuncomar. to respite Macaulay says that Impey
"
I say that there is would not hear of mercy or delay. no evidence whatever that Impey would not hear mercy. As to delay, the execution took place on the 5th of August, sentence having been passed on the 24th June,
1
Toiichet's petition. Gen.
App.
3, 19,
and
see Pari. Eist. xxvi. 1383.
VOL.
II.
66

six weeks.
[chap.
an interval of
all his
No
doubt
if
Impey had used
influence over the other judges he might have succeeded in inducing them to respite Nuncomar, indeed if he had prevailed on any one of them, his casting vote would have been decisive but it is one thing to
;
was one of a body of four judges who decided not to grant a respite, and quite unanimously another to say that he ought to have respited Nuncomar, as if he personally had had to decide the question that he would not hear of mercy, as if he personally had roughly repulsed solicitations for mercy; and that he would not hear of delay, as if he had personally pressed
say that he
;
on the execution with indecent haste. Passing from this, what is to be said of the conduct of the court in omitting to respite Nuncomar ? What were
their powers, and of those powers ?
" "
their duty as to the exercise Their powers were conferred by a " And whereas clause in the Charter in these words,
what was
cases
may
arise in
which
it
may
be proper
to
remit the
general severity of the law, we do hereby authorise and " empower the said Court to reprieve and suspend the
"
"
execution of any capital sentence, wherein there shall appear in their judgment a proper occasion for mercy,
'until our pleasure shall be known, and they shall in " such case transmit to us a state of the case, and of the
"
evidence, and of their reasons for recommending the criminal to our mercy." These words obviously confer a They do not impose any definite discretionary power.
positive obligation,
"
and there
Definite
is
this distinction
the
two things.
all
positive
between must be obligations
discharged at
events.
All that can be expected of the
person in
exercise
it
whom
a discretionary power is vested, is to in good faith and to the best of his judgment
Jx.]
67
The judges of the Supreme Court were under a definite obhgation to try Nuncomar fairly according to the law of England, but when he was convicted, their only obligation
as to a respite was to act in good faith and to the best of Did they so act or not ? In the letter their judgment. which he wrote to Governor Johnstone, Impey stated the
mind.
motives which as he says were predominant in his own Shortly they were, that the crime was aggravated
by ]3erjury and forgery, and that the executive government had by their conduct made it impossible for the court to
respite Nuncomar without incurring the loss of their own independence and the suspicion of having been either bribed or intimidated. Indeed he says attempts were made
both to bribe and to intimidate himself and his colleagues.
Does it state questions arise upon this letter. motives truly ? If it does, are they sufficient to Tmpey's
justify the course he took
? I think they are stated truly not quite completely, for Impey states others in though The motives his defence before the House of Commons.
Two
alleged are sufficient to explain Impey's conduct. difficult to believe that a man who had not felt
It is
them
would have alleged their existence, and they are motives which would affect equally all the members of the There can be no ground for putting Impey in a Court. different categor}'' from his colleagues, and we must either say that all four had motives for what they did, other than
a wish to screen Hastings, or else that all four corruptly determined to withhold a reprieve in order to screen Hastings.
To say that three were actuated by other motives and one by a desire to screen Hastings is to make an
assumption as gratuitous as
it is
unjust.
It
seems
to
me
highly improbable that Impey's real motive for his conduct was to screen Hastings, and that the motives which F 2
68

avowe
[chap.
to Johnstone were mere pretexts which have actuated his three colleagues, but were not may He would not refuse a reprieve merely felt by himself. to screen Hastings without a strong motive, but where
he
? None can be suggested. Assume, that there was such a motive. Still the execuhowever, of Nuncomar was not necessary. tion Hastings would
was Impey's motive
have been screened quite as effectually and without any If the Court had risk at all by a different course. respited Nuncomar and had recommended that he should
be pardoned on condition of being imprisoned for five ^ a lakh of nipees, Hastings years, and paying a fine of would have been protected as effectually as by his death.
Nuncomar's credit would have been utterly destroyed, and there is every reason to suppose that, as it was, he had told all he knew, if indeed he had not told a great In the six weeks which for deal more than he knew. some unexplained reason passed before his execution he saw whom he pleased, and could make whatever communications about Hastings' misdeeds he thought proper. Besides Hastings was at the time in a most precarious În the following spring Lord North used position. effort to get him recalled, and the Court of every
Proprietors refused to recall
him only by a very small
in favour of a man so judicial majority. situated could not screen Hastings, but might if Hastings was recalled ruin Impey. To suppose that out of mere
murder
friendship
Impey
ously murdering one hand romantic generosity, and on the other the meanest and most cowardly cruelty.
tried to serve a falling man his enemy is to ascribe to
by treacherhim on the
He had
got Rs. 69,000 by the forgery.

see Gleig
ii.
For the details

June, 1776.
58, especially McLeaiie's letter to Hastings,
2.5th
IX.]

it
69
For these reasons
appears to
me
that
Impey ought
to be fully acquitted of
any special responsibility for not reprieving Nuncomar, and especially of having withheld
the reprieve out of a desire to screen Hastings. No doubt, however, he was as responsible as his colleagues for Nuncomar's execution, and it still remains to be considered whether these motives were sufficient to justify the course taken.
The question hardly admits
of a definite categorical
answer, because no definite rule exists by which it can be determined. Where I would ask is such a rule to be
found
Ujôn what authority does
it
rest
Down
to
Queen the question whether sentences of death passed at the Old Bailey should be
the accession of the
carried out or
commuted, used
to be decided at sittings
of the Privy Council, at which the King was always present, to discuss what was called the Recorder's report.
The judges on circuit had for many years power by statute to reprieve prisoners sentenced to death or to leave them (as it was called) for execution. There were
no rules
could
for
the exercise
if
of their
discretion.
is
There
be none, but
the
I
question
of discretion,
regarded as a question that the motives which say
Impey
states in his letter to
Johnstone deserved to be
attentively considered, and might have honestly convinced rational men that Nuncomar ought not to be
respited.
am
convinced that in former times,
when
the temptation was to undue severity, and in our own times when the temptation is to sentimental lenity, it
would be found, if the facts were known, that reprieves have often been refused or granted on grounds far less weighty and avowable than those by which Impey says he and his brethren were actuated in Nuncomar's case.
70
[chai-.
will find it
"
think that any one who reads that letter with candour hard to deny the writer's conclusion. "All I
'
wish (which I hope I need not much labour) to persuade you is that I thought the measure necessary, and that I
acted on principles
urgent."
"
"
which appeared
to
to
be just and
To me the judges appear
have exercised their discre-
tionary power reasonably and in good faith, and nothing more could be required of them. The question was one in which there was no absolute right or wrono-. I
cannot better express
my
reasons for this opinion than
by correcting some of Macaulay's statements on this matter, and adding some observations which he overlooks. " The law which made forgery capital in England was
"
"
passed without the smallest reference to the state of True, but it was passed with direct society in India."
reference to a state of society exactly similar to that which existed in 1775 in Calcutta, and it was extended to
inhabitants
of
Calcutta
all
25, " " recites that has of late been practised Forgery " to the subversion of truth and justice, and prejudice
"
seems to assume to
only, India,
and not as
Macaulay
II, c.
The 2 Geo.
of trade
and
credit."
But Calcutta had
since the
establishment
English power there become a " " of trade and credit to a great degree, and this place was so clearly proved by the evidence of ^ " all the
of
the
"
principal
native
inhabitants
of
Calcutta
trial,
"
"
examined during the course of the
who were and who were
certainly persons as well qualified to speak to them as any in Calcutta," that Farrer felt " extraordinarily " hurt at it," and ^ said that he " felt himself beat even
"
*
-
Evidence of Farrer before the Impeachment Committee,

P. 17.
p. 7.
IX.]
71
"
in bis own opinion on this ground," i.e., the ground of the inapplicabihty of the 2 Geo. II. to Calcutta. " It was unknown to the natives of India." True, as to India in general, but it was not unknown to the in-
habitants of Calcutta.
"
It
had never been put in execution among them."

"
True, even
of Calcutta.
interpreting
them
"
to
mean
inhabitants
But one
of them,
Radachurn Mettre,
had been convicted, sentenced, and pardoned under it. It would have been candid in Macaulay to mention this. The turn of his phrase shows that he knew it, " It was in the highest degree shocking to all their
"
of such a law to a
This probably means that the application Brahmin was shocking to them, but to recognise the special privileges accorded by the
notions."
Brahmins would have been " in the highest degree "shocking" to all English notions, and in such a case the notions of the ruler must prevail if he is to continue ta rule. Macaulay would not have tolerated suttee. It was
Hindoos
to
indeed
first
made penal
all
Bentinck, under
whom Macaulay
over India by Lord William not long afterwards
held the office of Legal Member of Council. " They were not acquainted with the distinction which
"
" "
circumstances peculiar to our own state of society have led us to make between forgery and other kinds of
cheating."
The inhabitants
of Calcutta were distinctly

;
proved to be well acquainted wîth them
Parliament on two occasions, namely in 1813 and afterwards in 1827, made forgery in the Presidency towns punishable with
transportation for life. Macaulay himself, legislating for the whole of India, makes this very distinction. By article 444 of his draft penal code the maximum punish-
ment
for forging
a valuable security
is
fourteen years'
72
[chap.
imprisonment with a minimum of two years. By article 394 the maximum punishment for common cheating is one If Parliament thought it necessary year's imprisonment. to punish forgery at the great commercial towns with the
secondary punishment, if Macaulay himself right to extend a similar rule to all India, ho^v thought can it be said that the judges of the Supreme Court
severest
it
must have been not only unjust but corrupt when they considered that the English law on the subject was not
unsuitable for Calcutta
"
?
The
counterfeitincy of a seal
" "
"
common act
it
of swindling, nor
was in their estimation had it ever crossed their
minds that
or
was
to
robbery eager of Impey's enemies,
assassination."
be punished as severely as gangThe speech of the most

-^
Colonel Fullarton, which
is
more distinguished
for
vehement passion than
for logic,
contradicts part of this.
He
says that in India, as in old
times in England, deeds were authenticated not by signing but by sealing, and that so much importance was
attached to the seal that
deed on which the
one person raised money on a another had been fraudulently impressed, the owner of the seal had to make good the loss. If this were so the result would be that to counterif
seal of
feit
a seal or to employ a genuine seal fraudulently, would be a specially aggravated sort of cheating.
^
Farl. Hist. xxvi. 474.

:
Colonel Fullarton's logic
is
oddly illustrated
" From these facts the House will judge how by the following remark " cruel and unjust it was to consider forgery as a capital crime in India, " because it puts " of another to
it
expose
;
stared in the text
power of any one who can lay hold of the seal The facts to which he refers are to death." so that he seems to have thought that because I can
in the
him
make you civilly liable by fraudulently affixing your can also make you criminally liable for my fraud in so
wrong to hang A for misusing B's seal, because hang B for having had his seal misused.
if
seal to a deed,
affixing
it.
It
is
you
do,
you must
also
IX.]

this as
it
73
Be
in
may, Nuncomar's crime lay not so much counterfeiting the seals of Bollakey Doss and of
Dien, as in uttering the forged instrument to
affixed,
Commaul
widow
"
which they were
and
so
robbing his friend's
^ of 69,000 rupees, being apparently more than half of the property to which she was entitled.
The crime for which Nuncomar was about to die was regarded by them (the Hindoos) in much the "same light in which the selling of an unsound " horse at a sound price is regarded by a Yorkshire in the light of a mere breach of "jockey," that is,
"
warranty. It appears to me wholly incredible that gross frauds resulting in the plunder of a defenceless woman
of
more than half her property should be regarded

it
in
such a light by any one.

not see that
In point of moral guilt, I do compares favourably with gang-robbery

It inflicts equal loss,
difficult to detect
unattended with actual violence.
and
it is
much more
the offender and
Nuncomar's offence was aggrato recover the property. of perjury, and by the forgery of at vated by subornation
least
one document to be used as evidence.
Putting these matters together, consider the position of the judges of the Supreme Court. They believed first
that English criminal law had been introduced into CalIn this they were not only unanimous, but were cutta. obviously right. All of them with the exception of
Chambers
also believed that the statute of 2 Geo. II.
c.
25
had been introduced into Calcutta. Chambers doubted, not because he differed from his brethren as to the date of the introduction of the English law into India, but
because he said he regarded the state of civilisation in
^
Pudmohun
told
Mohun
Persaud that the balance ultimately payable
to the
widow would be
Rs. 60,000.
74
[chak
Calcutta as like that of England in the interval between

Elizabeth and George II., for which reason he would have applied to the case the statute of 5 Elizabeth c. 14. As to
this,
the Court heard evidence as to the state of Calcutta of

"
such a character as to
beat out of his opinion
"
even the
Nuncomar's crime was not doubted by any of them, and it was an exceedingly bad If a man of wealth and rank were in the present one. day and in England convicted of forging and uttering a deed, by which he robbed the widow and orphans of his intimate friend of half their fortune, and if he suborned false witnesses, and forged a receipt, in order
counsel for the prisoner.
to
defeat justice,
penal
servitude
for
fourteen
years
would be by no means an excessive sentence. Is such a sentence after all, much less severe than sentence of I think that an elderly man, occupying an death ?
honourable and prominent position in the world, would as a rule, prefer hanging to a term of penal servitude, which
rest of his days a period of misery and and cover him with indelible disgrace, and I also infamy, think our modern reluctance to inflict death as compared with our readiness to inflict some secondary punishments
would make the
a piece of effeminate cowardice. What is the value of a dishonoured old age passed in shameful slavery ? At all events such a crime would be deserving of
very heavy punishment.
In 1775 the established punishsuch offences was death.

for
ment
in
England
for
Many
crimes were then nominally capital
which death
was seldom actually inflicted, but in cases of forgery it ^ was otherwise. In June, 1777, Dr. Dodd was hanged for forging a bond of Lord Chesterfield's, though before he
^ See Annual Eegister for 1777, chronicle 187. of his trial at p. 232.
There
is
an abstract
X.]
75
was tried he made restitution of 3,500 out of 4,000, and gave an execution on the goods in his house for the rest of the monej^ and though every sort of interest was made for a remission of the sentence. In 1777, and the long afterwards, the law of England, and especially
criminal law, was the subject of iiTational complacency and admiration, not only amongst those who studied it
but amongst ^ all classes of people. In this state of things 1 do not see why the judges of the Supreme Court should have been expected to be specially
as
a profession,
shocked at the notion of Nuncomar's execution for the On the other hand, offence of which he was convicted.
the repeated interferences of the Council, and the fear of being supposed to be bribed or intimidated are just the
motives by which most men placed in the position in which the judges were placed, would be strongly
sort of
affected.
Judges ready to incur the imputation of corruption and timidity, and to sacrifice the reputation of their Court for independency, rather than permit the execution of a legal sentence merely because it was not in accordance with native ideas, would no doubt show an extraordinary degree
of a
particular
it
kind of conscientious
would have been wise or sensibility, morbid is another question. Besides it must be remembered that they may have cordially approved of the out in a English law, and have determined to carry it and where the case which fell well within its meaning crime was certainly not attended by any circumstances
but Avhether
of mitigation.
^ The Council of Dacca, in a letter to the Governor-General in Council, dated June 20th, 1776, written to complain of the extension of English criminal law to India, say: "As British-born subjects we revere and " "glory in the sublime system of English penal law (Touchet's petition,
Dacca Ap]). No.
5).
76

Instances
[chap.
may
have turned the scale

stain
be given in which such considerations aerainst mercv without leavins: a
on the characters of those who held it. ^ When Major Andre was executed as a spy, "Washington wrote Your excellency will have heard of the to Eochanibeau,
"'
execution of the British Adjutant -General.
The
cir-
'
cunistauces under which he was taken justified it and " policy required a sacrifice, but as he was more unfor-
His conduct has not usuallv. I think, been reitarded as anv thing worse at the most than over severe., and many
timate than criminal,
could not but lament
it.'"
we
Mr. Lecky refuses to condemn it. persons approve of it. With regard to tbe judges of the Supreme Court, I think it may be said that the motives stated by Impey as his
own were probably
those of
all
the four, and that whether
or not thev fullv iustified their conduct, thev were not I think of a kind to entail disgrace on their memory. that the whole difficulty arose from the mistake made
originally in not suggesting an indictment at common law rather than on the statute, but the difficulties in the way of such a suggestion must be borne in mind.-
The motives avowed by Impey
to Johnstone
were not
the only ones which acted on him. others in his defence at the Bar of the
He
pointed out
mons, on which EUiot in his The Charter required the judges to give their reasons for a
'^
House of Comturn made observations.
See Leckr, Miôry of Ewjlcnd, vol. ir., p. 146. In the note already referred to, vriih wMcli I have been favoored by Mr. Beleliainbers, a list is giren of cases in whieli sentence of death was
-
passed by the Saprenie Court, from 1796 to 1S21, for crimes then capital by the English statate law, though not by any law known to the natives <rf IndiaSentences for burelarv and robberr were not uncommon There
.
are also three for stealing in a dwelling house to the vaiue of forty shillings in ISOO, 1S02 and 1S09, which do not appear to have been com-
muted.
Surely these are stronger cases than Xnncomar's
IX.]
77
recommendation
could have given
had been
to mercy. Impey asked what reason they ? Elliot suggested four, most of which anticipated by Impey in his defence. Hence the
controversy between them may be exhibited almost in their OAvn words in the form of an albercation as follows.^
should have respited Nuncomar because o{ the legal doubts in the case. Impey. We did not think there were any doubts.
1. Elliot.
You
Chambers thought the indictment illegal. Impey. Chambers waived his objection and must have joined in rejecting the appeal, if any appeal was in fact ' Chambers indeed proposed on the day of presented.
Elliot.
Nuncomar's execution to have his property seized by way of forfeiture, which I refused to do. Chambers ^ a letter addressed also, on the 2nd August, 1775, signed all the judges to the Court of Directors, which said, by
1
vol. xxvii. 432-436.

is
See for Impey's speech Pari. Hist. xxvi. 1387. 1388, and for Elliot's This occurs in the ill-reported part of the speech, and not in the part of the printed speech which still exists.
2
subject which certainly shows no tenderness or misgiving about
from Chambers to himself on this Nuncomar. ' Dear Sir As I understand that Nuncomar has been executed this "morning, I submit it to your consideration whether the sheriff should not be immediately ordered to seal up this day (if he has not done it " already) not only the books and papers of the malefactor, but also his "house and goods. Among his papers, if not secreted, it is said there " will be found bonds from many persons, both black and white against
Impey read
in the
House a
letter
' '
' '
whom
" should issue under the seal of the Supreme Coui-t to persons appointed " by us to inquire after his effects at Moorshedabad and elsewhere, but " this I have not sufficiently considered, and only mention it now that " However, the first step to be taken by the you may think of it. " sheriff ought not I think to be delayed a minute." If Chambers really thought that Nuncomar had been illegally put to death, he showed, at all
. .
"supreme
conceive that writs of scire facias should be directed by us as I am also inclined to think that a commission coroners.
events, great eagerness to secure for the Crown the full advantages of the He agreed with the rest of the Court in not advising a respite. crime.
3
Touchet's petition, Gen. App.
3, 19,
and
see rarl. Hist. xxvi. 1383.
/8

in every
[chai>.
"Our judgments have

"
"
instance been unani-
mous, whatever representations

contrary."
Elliot.
may be made
his objection.
to the
"
'
Being and flexible character, although of " great knowledge and integrity, he did not renew his " As to the letter, " it reflected no disgrace objection." " on the character of Sir Robert Chambers, who had " been induced to sign a letter containing a paragraph " of which he could not approve but on the stubborn and inflexible character of the writer who inserted the
"
Chambers did not waive
man
of a mild
"
paragrajDh."
The only reason for thinking that Chambers did not waive his objection, or did not mean what he said in the letter which he signed, is that his doing so was inconsistent with Elliot's theory.
On this point Impey appears to me to have had far the best of the argument. You should have respited Nuncomar, 2. Elliot.
because
it
is
unjust to enforce in one country the laws

specifically deal
is
of another.
Impey does not

the
answer to
it
obvious.
It
with this point, but begs the question.
Impey's case was that this part of the English law was the law of Calcutta, and that the injustice of introducinoit, if it was unjust, was the injustice, not of the judge,
but of the legislature. Impey could not be expected to act otherwise than according to the provisions of the Act
and Charter under which he was appointed. 3. Elliot. You should have granted a respite because Nuncomar was a Brahmin, " a rank considered as sacred
"
in India,
*'the life of a
where the natives think it impious to take Brahmin." The execution of Nuncomar
IX.]
79
must have made the poor of India shudder, as they must have thought if neither wealth nor rank could save a man's life what would become of the poor and the mean ? ,...'' It was not for Elijah Impey, it " was not for a handful of strangers, to decide that this " What appeared absurd was an absurd distinction. " according to our ideas of society might, for anything we " knew, be perfectly proper and well founded according " to theirs, and we were not, with a vain presumption, to
"
"we were
Impey.
"
trample on established laws with the reasons of which not acquainted.

stated
?
"jury
" "
for
Should his rank and opulence have been was proper those facts should be left to the them to draw inferences against the probability
It
;
"
of his having committed the crime but when the case had been clearly proved to their satisfaction they re" mained aggravations, not mitigations they were left to " the jury, and the inference in favour of the prisoner " ^ was pointed out to them." I have quoted these arguments in the very words of
;
those
who used them because they are highly characteristic.
Sir Gilbert Elliot's view
is based on the principle that the English had no business to be in Calcutta at all, and that the introduction of English law even within the
Mahratta ditch was in itself so tyrannical that any harsh consequences which might follow ought to be visited on a judge who ventured to act even imjDartially upon such a
system.
to respect
considered, were morally bound Indian institutions to the extent of regarding a Brahmin as inviolable. Hardly any one in the present
^ Near the end of the summing up the following remark occurs " There is certainly great improbability that a man of Maharajah Nun" comar's rank and fortune should be guilty of so mean an offence for so " " small a simi of money (20 St. Tr. 1076).
:
The English, he
so

will
[chap.
day
doubt that Impey had the best of this argument.
If English law were to be enforced and English judges were to sit in Calcutta at all they could be no respecters
of persons.
4. "
"Elliot.
'
You
should
"
have
facts,
respited
Nuncomar
because of
'
doubts as to
and the circumstances
"
"
attending the cause.' " The doubts as to facts arose upon the evidence (a) at the trial."
Impey does not
implies that the facts were proved,
deal with this, but his whole argument and I, for reasons
already given, agree with him. " The circumstances were the prisoners having (6) " preferred an accusation against the Governor-General,
"the reasons that the natives had on that account to suspect that the Court would be prejudiced, the parties " that prevailed in the settlement by which men's minds
"
" "
"
were in such a fermentation, agitated by such heat and

passion as rendered it impossible for them to judge impartially, and the common interest of almost all the
British
"
inhabitants
in
deterring
the
natives
from,
"becoming' accusers."
Impey
follows "
:
liad dealt
with the important part of this as
Should
it
have been stated as a reason to his
Majest}''
"
"
that
Nuncomar had
?
preferred an accusation against Mr.
was tlie accuser, and who was the was notorious to all India that Nuncomar " had been the public accuser of Mahommed Reza Khan "without effect, though supported by the power and " He had been convicted influence of the Government.
"
Hastings accused ?
Who
It
"before the judges of a conspiracy to bring false accusa1
Pari. Hist. xxvi. 1389.
IX.]
81
"tions against another member of the Council. Against " whom was the accusation ? Not against Mr. Hastings, " not against Mr. Hastings, censured by this House
;
"
"
impeached before the House of Lords
not the Mr.
Hastings for " minster Hall

'
"
whom
;
the scaffold
is
erected in
but that Mr. Hastings
whom
full
Westhad heard
the
Prime Minister
of England, in
Parliament,
declare to consist of the only flesh and blood that had "resisted temptation in the infectious climate of India;
whom the Kinsf and Parliament of had selected for his exemplary integrity, and England "intrusted with the most important interests of this "realm. Whatever ought to be my opinion of Mr.
"that Mr. Hastinofs
"
"
"
"
ouafht to
Hastings now, I claim to be judged by the opinion I have had of him then. What evidence had
the judges that the accusation of Nuncomar was true ? How could they know that they were screening a public " offender in the person of Mr. Hastings, so lately ap" plauded, so lately rewarded by the whole nation ?
" "
" " "
"
Ought the judges to have taken so decided an opinion on the guilt of Mr. Hastings as to grant a pardon to a felon, and assign as a reason that the convict had been
his accuser
this
"
"
what justice to the community ? Who could have been safe, if mere accusation " The warmth with which Impey merited indemnity ?
have
been done with
With what
justice to Mr. Hastings could
speaks of the character of Hastings shows Impey's
own
His language was sincerity, courage and friendship. of being used to show that he was a partisan of capable Hastings, and it certainly does -show that he had a high
opinion of him.
remarkable that Elliot should have passed over wholly unnoticed, these trenchant and vigorous words G VOL. II.
It
is
82
[chap.
strike directly at the root of the most popular and important of Elliot's topics. The argument notwithstand-
which
ing the warmth of feeling which it shows about Hastings appears to me as powerful as the language in which it
But in order to appreciate its vigorous. weight fully, reference must be made to the facts related in Chapters VII. and X., as to the efforts made to save
is
conveyed
is
as to the course taken by Clavering and Francis with regard to the petition which was burnt by the jailer of Calcutta as a libel by the order of the
Nuncomar, and
Council.
I
need not repeat the
facts already stated, nor will

I
I here anticipate the contents of the next chapter.
content myself with quoting the argument which was drawn by Iinpey from the silence of the Council. An
argument,
may
observe,
which
after Impey's defence
was
made was
further strengthened by the evidence given by Farrer, as to his consultation with Clavering, Monson,
and Francis, at the party given by Lady Ann Monson " In the next charge I am severely censured
"observations
for
made
in the course
of
commenting
on
''evidence to the prejudice of the defendant's cause, and " to the gentlemen of the Patna Council in a cause
more should I have had Mr. Hastings been at this " time, in the opinion of this House, the man that he was " then imderstood to be in India, by this House, and by the " nation at large, if I had gone out of the cause and "wantonly defamed and prejudged him without any " evidence to give colour to the outrage ? But though it
"regularly before me.
"
Huw much
been subject
to censure,
would have been unjust in me or the judges, either to have suo-Qrested these reasons as coming from the Court, " or to have adopted them without positive jDroofs on the
"
"
IX.]

;
83
"
" " "
suggestion of others yet if that part of the Council who were convinced of the guilt of Mr. Hastings had
representation to the judges, that there were probable grounds for the accusation, and shown those
if
made a
"grounds;
"
they had stated
(as well
they might,
if
the
as the charge represents) that there was reason to believe 'that the prosecution was at the "just " instigation of Mr. Hastings or his partisans, with a
'
notoriety was
sake of procuring "'justice against the convict;' there can be no doubt "but the judges would have respited the criminal, even
to screen him,
"
'"view
and not
for the
"
though there might not have been evidence sufficient to convince them. They would have transmitted to
"
"
his Majesty the representations of the Council as the cause for the respite, and left it to him to judge of the " If the judges had not yielded validity of their reasons. "to that representation, they would indeed have in" "
"curred great responsibility; if the gentlemen of the Council so thought, it would have been justice to the
"
" "
duty they owed to the public,
"
"
would have been justice to the Court, and a to have made that appliBut what their real opinion was, will appear cation. Consistent hereafter by their public and solemn acts. with that opinion they could not have made such a
criminal,
it
representation."
A
I
full
explanation of this will be found in the next
chapter.
have now gone through in the most minute detail every part of the story of Nuncomar, with the exception of a single detached incident in the case, which for the
sake of
its
curiosity I shall describe in the next chapter,
does not directly bear on the conclusions at which I have arrived, which I may now in a very few words sum up. G 2
but
it
84

I
[chap.
made by Nuncomar were and always remained against Hastings originally, unsupported and dependent entirely on Nuncomar's statements which, so far as they were inquired into were conthink that the
specific accusations
by the persons to whom he referred. I think, however, that Hastings's conduct, when accused, was not such as in itself to prove his innocence, and was such as to
tradicted
give his enemies a handle for asserting his consciousness But on the other hand I think that the rashof guilt. ness and violence of the conduct of his enemies was
to
enough
make even an
and refuse
innocent
man
stand on his
to say or do anything which he legal rights, was not legally compelled to say or do. I also think that it is not true that Nuncomar's
accusation put Hastings in such a position that he had to choose between disgrace and ruin on the one hand, and a
judicial murder on the other. I think that Mohun Persaud
was the
real
substantial
prosecutor of Nuncomar, and that Hastings had nothing to do with the prosecution, and that there was no sort of
conspiracy or understanding between Hastings and Impey in relation to Nuncomar, or in relation to his trial or
execution.
I think that
Nuncomar's
trial
was perfectly
fair,
and
that Impej's conduct in it was not merely just but even favourable and indulgent to Nuncomar.
With regard
statute 2
to
its
legality
c.
doubt whether the
25 was part of that part of George the criminal law of England which was introduced into,
II.
Calcutta.
to
^
A rule was long afterwards

it
laid
down according
this
which
was
not,
but I
am by
no means sure that
Nuncomar's statements as to the money which he said he paid himself. The more general accusations I do not notice here.
I refer to
IX.]

Impey and
85
rule was well founded. I think that
the other
judges were in good faith of opinion that the statute was in force though Chambers doubted, he did not then insist on his doubt, which, however, he acted upon eleven
;
I think, however, that an indictment for years later. the common law offence would on all accounts have been
The Court was however, responsible for the form of the indictment. It might certainly have recommended an indictment at common law, but it was not clear that such an indictment
not,
better than an indictment on the statute.
would have been good.

I
think that in omitting to respite
Nuncomar
the
judges exercised their discretion in good faith and on reasonable grounds, which was all that could be required of them. Others might with equal good faith have taken
a different view of their duty. When they had once allowed a prosecution on the statute, they were no doubt placed in a great difficulty. On the one hand they might
permit Nuncomar to be executed
for
an offence not
generally recognised as capital in Calcutta at the time
when
question as to over-severity,
was committed, a course which, apart from any was sure to be and was in fact On the other hand they might respite misunderstood.
it
him
for
a crime punished at that time in England with
death, with inflexible severity, the crime being a very bad one in itself, aggravated by perjury and forgery, and the
act of granting a respite being sure to be represented understood as being either weak or corrupt, or both.
"
and
" It is Macaulay's final judgment on Impey is, therefore our deliberate opinion that Impey, sitting as " a judge, put a man unjustly to death to serve a political
"
It is, for the reasons given, purpose." that not one word of this is true. opinion
my
deliberate
Impey did not
86

all.
[ciiAr.
put Nuncomar to death at

persons
thing.
sitting
He was
is
one of four
a different
of such refusal the judges were not as judges; they were sitting in an executive
who refused At the time
to respite
him, which
capacity and exercising an executive and not a judicial and it is therefore incorrect to say that Impey was "sitting as a judge." I think that this proceeding
discretion
;
was not unjust, though

mistaken.
his
do not affirm that
it
was not
or
Lastly, I do not believe that
Impey,
any of
a
colleagues,
acted as they did in order to

to
serve
political purpose.
The debate upon the motion

is
impeach Impey had,
as
the case with
judicial side.
such debates, a pictorial as well as a It has been described at great length by

all
Sir N. Wraxall,
and
is
also
mentioned, though by no
means
places
so fully, in to
Sir Gilbert Elliot's memoirs, a
book
which appears
me to give him one the men of his time. amongst
of the very first
Wraxall's account of the matter gives me, as indeed do

the rest of his writings, a low opinion of him. He does not appear to me to have followed or understood the
I do not suppose he had various arguments employed. on the subject. He says of Elliot's bestowed any real study
"
speech,
"
his
monotonous and measured enunciation,

"
unil-
luminated by a ray of vivacity or a spark of wit (what had wit to do on such a matter ?) " derived nevertheless an
"
"
interest
from the sound sense which pervaded his whole

the serious nature
of the
discourse, from
accusation
"
"
preferred, and above all from his accurate information on the subject." ^ After Elliot had finished the first part
^
The printed speech as far as it goes is certainly better suited for a Court of Law than for the House of Commons. It goes into the different points both of law and fact with which it deals with extreme minuteness
IX.]
87
of his speech, he asked for an adjournment, which was objected to by Impey's friends, and reference was made
to
"
Burke upon this burst out, " The Impey's feelings. himself does not manifest in his deportment that person
he
is
"
much
"
situation.
actuated by feelings becoming his present have recently seen him in Westminster
"Hall, where he appeared rather like an accuser than a

"
"
assuming
party accused.
"
Contumacious, arrogant, confident and
Here he was
called to order.
Burke had
Nothing
certainly given a good sketch of an accuser.
can be more characteristic of Burke in his later years than " " his contumacious, arrogant, confident, and assuming behaviour and his furious anger at any man who offered anything like a manly opposition to the invectives of his party and himself.
" left highly disapproved of Impey, but London in order to avoid giving any vote," because " as "three other judges participated with him throughout
Wraxall
"
the whole proceeding he doubted whether Impey " could be an object of exclusive impeachment." legally
"
"
As Wraxall
supported
Hastings warmly, this
shows
strongly that his view of the matter was very different from mine. He does not however appeal* to me to have
nor does his account of the debate amount to more than a selection of what he regarded as anything the most interesting things said on the occasion. Fox,
studied
it,
he
"
It is to my conviction absurd to argued thus, maintain that no malice existed in the Chief Justice's
-says,
;
"
and at almost interminable length it contains, amongst other things, a It relates long statement of, and commentary upon, Campbell v. Hall. at full length the whole of the Company's title to Calcutta. It analyses word by word certain parts of the Regulating Act, and it discusses parts
of Farrer's evidence before the
Impeachment Committee, with a muiute-
ness
which
is
not only tiresome but almost superstitious.
88

Eis subservience
to
[chap.
"
"is
"
mind throughout the trial. to be presumed from all
Hastings
the circumstances of the case.
Being
"
"inference,
"
so presumed, a corrupt motive forms a necessary for no two individuals would agree in so
wicked an act as that of taking away a fellow creaThis presents a ture's life without a corrupt motive."
If there
strange confusion of ideas.
was a conspiracy
between Hastings and Impey, the motive is unimportant. If there was no motive, there probably was no conspiracy.
To regard the motive
and
to infer its existence
as the important matter, from a conspiracy arbitrarily
presumed is doubly preposterous. Not only is the cart put before the horse, but the existence of an invisible cart is assumed in order to prove the existence of an
equally invisible horse. Pitt, I think with perfect jDro" treated the accusation of a conspiracy between priety, " Impey and Hastings for the purpose of destroying
"ISFuncomar, as destitute of any shadow of proof Sir Gilbert Elliot's delightful letters to his wife, probably the pleasantest and most characteristic of all
the memorials of that age, contain various allusions to the impeachment of Impey. In order to appreciate the
following extract
his
^
"
it is
"
peroration.
Sir
necessary in the first place to quote Gilbert having spoken of the
"ghost of Nuncomar visiting Sir Elijah and demanding "justice, concluded thus, 'The blood of the murdered
" " " "
' '
blood
'
'
cry, the clamour of and bursting our walls for vengeance To your justice therefore I commit the " ^ Deal with him as he deserves.' Wraxall culprit.
Rajah
is
on
all
our heads
The
is still
ringing in our ears,

!
says,
"
there is something in these aiDpalling ex2oressions which involuntarily reminds us of Clarence's dream.
^
"
riirl. Hist, xxvii. 442.
Memoirs,
v. 107.
IX.]

on
liim,
furies,
89 "
"
'
Seize
take
him
to your torments.'
To me, like most eloquence, it resembles nothing so much mouldy wedding-cake. To the hearers, however, it was affecting. This is Sir Gilbert's own re^Dort to his
as wife " ^
"
"
:
You may
at last
wish
me
joy of having completely
finished this labour.
We
it was not had his own personal friends, one.) Impey " the lawyers, in a body that is to say, fifteen of them " out of twenty who were present, the whole Indian " corps, Lord Lansdowne's squadron, and the whole force " of the ministry and with all this he could raise a " majority of only eighteen. The numbers were fifty-five " to seventy-three, and we lost Francis, who could not vote " for a point of delicacy, and also Sir G. Cornewall, who " was in the chair. .... The debate was still more trium" pliant than the division, and we brought Pitt, and his " lawyers and friends, to the greatest disgrace. Pitt never " exposed himself and his profligacy in so great a degree
"
my opening yesterday. were beat yesterday, but our defeat is very like a
(The main difference was that
E.
''Sir
I concluded
victory,"
My share in it has been successful beyond my most sanguine expectations. I was fortunate enough " to conclude with an affecting I had tears and passage.
before.
"
"
"
"
certainly went very far " formed of them myself.

" " " "
me as before, and my powers beyond any idea I could have Dudley Long was one of the weepers, Adams another, and indeed the whole House and gallery were worked up to an extraordinary degree of feeling and emotion .... The debate began yesterday at half-past six with me, and I spoke till ten. Then
violent emotions all round
little
"a
1
disturbance happened by Sir

Letters of Sir G. Elliot,
i.
J.
Johnstone's being
Life and
201.
Date,
May
10th, 1788.
90
"

till
[en. ix.
"
drunk, and the debate then proceeded or half after seven this morning."
about seven
Some
light
is
thrown on the reference to Sir
J.
John-
^ by a passage in Wraxall, who says that Johnstone distinguished himself on the occasion
stone's being drunk,

"
and brevity of his speech." After listening to Colonel Fullarton for nearly two hours, he said, " Every argument confirms my opinion that the question " ought to be supported. We have beheaded a king, we " have hanged a peer, we have shot an admiral, we are now
by the Spartan
force
" "
we should
if
trying a governor-general, and I can see no reason why not put on his trial a judge and a chief
Sir J. Johnstone
"justice.'"
must have been very drunk
indeed
he thought the House of Commons had anyto do with the execution of Charles I., or of Lord thing Ferrers, or of Admiral Byng, or that it was trying Hastings, or that if all that
he said was true, there was any
sort of logical connection
between
its
different parts.
;
The crying
is
as characteristic as the rest
the
men
of those days appear to have had none of the contempt for the display of emotion which happily prevails now. Men hardly ever cry or hug each other in public in these
days, but the sentiment which condemns such exhibitions is modern, În his journal of Feb. 8, 1787, Elliot describes
how
after his speech in the
House
of
Commons
on the
" Begum charge, Sheridan was greeted by all his "friends throwing themselves on his neck in raptures of
"joy," and
sat
how Burke
after
down"
1
caught him in his arms as he opening the same charge before the
2
"
House
of Lords.
Y. 111.
124,218.
CHAPTER
X.
nuncomar's petition.
In an
incident
earlier chapter I
have noticed in passing the
Nuncomar's petition to the Council, which petition was delivered by Clavering after Nuncomar's execution, and was upon the motion of Francis, burnt as a libel by the jailer for want of a common hangman. This transaction was stated in detail by Impey before the House of Commons in his own
of
at the time
defence, as a proof that the Council themselves did not when the execution took place regard it as a
;
judicial
murder an inference Avhich, after the speech was made, was greatly enforced and corroborated by Farrer's relation of the attempt made by him to induce the majority of the Council to adopt and promote the Farrer had prej)ared on Nuncomar's petition which behalf, and of their refusal to do so. This transaction, and the controversy between Impey and Francis which it occasioned, appear to me to throw great light on the origin and value of the accusations made against Impey, and on the character and conduct of Francis, although
they certainly do not affect the questions of Hastings's connection with the prosecution, or of the propriety of
92
NUNCOMAR'S PETITION.
after the trial, or of
[chap.
Impey's conduct at and
Nuncomar's
guilt or innocence, or of tlie propriety of executing the
sentence passed upon him.
after
"
On August 14th, nine days story is as follows Nuncomar's execution, Ciavering informed the Council that on August 4th, the day before the execution,
The
:
"
a 23erson came to my house who called himself a servant of Nuncomar, who sent in an open paper to
;
"
"
me
as I imagined that the paper
might contain some
request that I should take some steps to intercede for " him, and being resolved not to make any ajjplication
till
"
"
whatever in his favour, I left the paper on my table the 6th, which was the day after his execution,
"
when
I ordered
'
it
to
be translated by
my
interpreter."
added, appears to me that the paper contains " several circumstances which it may be jDroper for the " Court of Directors and his Majesty's ministers to be
He
As
it
"
" "
acquainted with, I have brought it with me here, and desire that the Board will instruct me what I have to
do with
it."
Hastings and Barwell remarked that Ciavering seemed to make a great mystery of the paper, and Hastings said lie thought it ought to be produced.
It
was produced and

as follows
:
of
" " "
"
it is
translated,
^Tlie material part
"
For the
fault of representing at this
which
for the interest
time a just fact of the king and the relief of the
people I in a small degree
made known, many English

enemies, and having no
gentlemen have become

other
my
means
to conceal their
own
actions,
deeming
my
"destruction of the utmost expediency for themselves,

1
Bengal Secret Consultations for Aug. 14tli, 1775. See facsimile copy in Impey's Memoirs, p. 417.
X.]
93
"revived an old
"
affair of Mohun Persaud's, which had been repeatedly found to be false and the formerly " Governor, knowing Mohun Persaud to be a notorious " and themselves beliar, turned him out of his house, " and Lord Impey and coming his aiders and abettors,
;
"the other justices have tried me by the English laws, " which are contrary to the customs of this country, in which there was never any such administration of " the evidence of my enemies justice before, and taking "in proof of my crime, have condemned me to death.
''
"
"
But by
my
death the king's justice will

;
let
the actions
of no person remain concealed and now that the hour " of death approaches I shall not for the sake of this world " be regardless of the next, but represent the truth to
"
the gentlemen of the Council. " The forgery of the bond of which I
am
accused never
to "proceeded from me.^ .... If I am unjustly put "death I will with my family demand justice in the next " life. They put me to death out of enmity, and from have betrayed their "partiality to the gentlemen who
"
trust
and in
this case the thread of Hfe
being cut I in
again request that you gentlemen will my " write my case, particularly to the just King of England." This petition was entered in the books of the Council
last
"
moment
on the 14th August.

a copy of
it
the 16th Hastings moved that should be sent to the judges as it reflected
;
On
on their characters, and Barwell agreed with him but Francis, Monson, and Clavering all opposed this motion. Francis said that to send a copy to the judges would give
the paper "much more weight than it deserves," and 1 If Nuncomar had been an Englisliman these words would look like
an admission that the bond was forged, but it is probable that it is only a denial of the charge. There is a grim likeness here to the letter to
Francis quoted above.
94
NUlSrCOMAR'S PETITION.
"
[cHAr.
added,
I consider the insinuations contained in it against
"them
"
and
as wholly unsupported and of a libellous nature, if I am not irregular in this place I should move
"that orders should be given to the sheriff to cause the " original to be burned publicly by the hand of the com"
mon hangman."
Monson
"
said,
think this Board
"cannot communicate the

"
"
letter to the judges; if
they
did they might be liable to a prosecution for a libel. The paper I deem to have a libellous tendency, and
"
unsupported." Clavering objected to sending the paper to the judges, because he thoucrht it might make the members of the
the
assertions
contained
in
it
are
Board who sent it liable to a prosecution, Francis finished the debate with the following remarkable state" I beg leave to observe that by the same channel ment " through which the Court of Directors and his Majesty's
:
ministers, or the nation, might be informed of the paper "in question, they must also be informed of the reception " it had met with and the sentence passed upon it by " I therefore hope its being destroyed in this Board.
"
"
"
the manner proposed will be
sufficient to
clear the
characters of the judges so far as they appear to be " attacked in that paper, and to prevent any possibility " of the imputations indirectly thrown on the judge? from
"
"
of the
extending beyond this Board. I move that the address Bajah Nuncomar entered in our proceedings of
last
"
Monday
It
be expunged."
was accordingly expunged, and the original copy was burnt, ^ not by the common hangman, because there was none, but by the jailer under the direction of the
sheriff of Calcutta.
Impey, Committee,
^
]).
99,
note,
and
see
Tolfrey's
e\idencc,
Impeacliment
p. 142.
X.]
NUNCOMARS
PETITION.
&5
The part taken by Francis on this occasion is all the more remarkable when we remember the letter addressed
to
him by Nuncomar already referred to. The petition was, as appears from the
August,
secret consul-
tations, entered
14th
upon the books of the Council on the and the Persian translator sent in a
corrected translation on the 18th,
when
it
was ordered
to
be expunged " and that the translations be destroyed." Hastings, however, kept a copy, which, with corrections in his own handwriting, he gave to Impey. Impey pro-
and read it in his defence. He said that Hastings ^ it no more than common justice to the judges " to give it to ine, and as it was in the secret department " of the Government he delivered it to me under an oath
duced
"
it
thought
"
"
of secresy not to disclose
Except
"
to
them
it
it in India except to the judges. has not been disclosed to this day,
when
it is
called forth
by necessity
for
my
defence."
Impey argued upon proved that at the time when the events were recent and
notorious, Francis described as a libel
fit
this story that it clearly
to be burnt
by
the
common hangman
the very charge of which he at
the time of his impeachment approved, and was presumably the principal instigator. He had, indeed, cun-
ningly procured such an alteration in the entry originally made in the record of the Consultations as would have
rendered
it
unintelligible but for the copy of the petition
produced by Impey, and

in
this enabled Francis afterwards himself to the retort of contradicting (without exposing
September what he had said in August) to join in (and probably to compose) the minutes signed by Clavering, Monson, and himself, in September and November, 1775,
1
Impey's speech before the House of
Commons
in 1788 {Pari. Hist.
Yxvi. 1406).
96
NUNCOMAR'S
insinuated,
PETITIOjST.
[chap.
whicli
without
expressly
charging,
that
Nuncomar had been
judicially murdered, and called
forth Impey's vindication of January, 1776. Francis took this as an attack upon himself, offered to
be called as a witness on the Impeachment Committee, and ^made a speech in the Committee in his own vindiIt is said by the younger Impey that this speech was afterwards published by Francis as a pamphlet, and disavowed by him, and that Sir Elijah Impey wrote a pamphlet in answer to it. The pamphlets attributed to Francis and Sir Elijah Impey are in the British Museum. The pamphlet attributed to Francis I should think must really be his, because it would be most unlikely that any one else should write it. That Francis disavowed it
cation.
rests, so far as I
know, upon the statement in Impey's

statetrue.
answer, but
Impey would hardly have made that
ment
a
if it
had not been

attack
direct
upon
have preferred Francis to an attack on the
He would
imaginary author of the pamphlet. Francis's disavowal would not lead me to doubt that the pamphlet was really The pamphlet corresponds closely with the speech his.
as reported in the Parliamentary History.
No
one else
said,
^
could have any motive for republishing what he had and Mr. Merivale gives ^ excellent reasons for supTlie published in the Pari. Hist, xxvii. 40-54. He made another speech on the 26th, 1788. same subject April 16th, 1788 (see Pari. Hist, xxvii. 265-266). After " framed a this Sir Gilbert Elliot question and answer, to show that Mr.
Francis's speech
is
speech was
made February
" Francis had
" Committee had refused to receive it." He was afterwards questioned " by Elliot as to his opinion of the truth or falsehood of the petition " sent by Nuncomar." ^ The following is a good instance of Life of Francis, ii. 205-207.
.
offered to deliver in a written copy of his defence "against the accusation made at the bar by Sir Elijah, and that the
the sincerity of Francis.
book called Travels in Europe, Asia, ke.,
X.]
NUNCOMAR'S
that
PETITIOTT.
97
posing
Francis
both
pamphlets
bably " into
after his return
wrote many anonymous from India, and not impro-
" carried the Junian habit of denying authorship his subsequent literary transactions."
ment
Great part of the two pamphlets consists of the stateof matters of fact already related and commented
upon, in the preceding parts of this work, and need not be here repeated, but the following is the substance of
the argument. Francis states the charge which he says was made by Impey against him as consisting of a statement that the
majority of the Council, of whom Francis was one, ought not to be believed when they intimated an opinion " that
" the prosecution, trial, and execution of Nuncomar were " founded on political motives, and pursued for the sole
"
purpose of saving Mr. Hastings from the effect of that
said to be
by one Macintosh, was published in 1781, and contains a great deal of matter about Indian questions, and strongly takes the part of Francis. It was said that Francis had written parts of the book. He wrote from England : "In answer to a thousand lies you will have heard
" about Mr.

" employ " for
18th,
Macintosh,
I declare to
you most solemnly that
never did
or authorise him, directly or indirectly, to say or do anything account in England." The letter is dated January me, or on
my
:
1782.
In a cash-book of Francis's Mr. Parkes discovered two
entries as follows
" "
1782,
,,
^'
" his
"
to Merivale, large cousin Major Baggs, of the same date. Baggs, it will be remem' ' bered, left India fully instructed on behalf of Francis, but Francis in
.
The same cash-book,"
s. d. February. Draft of Mackintosh paid " 1,078 4 10 January 18 December 6, Paid Mr. Aim on (the " 56 18 6 bookseller) in full for Mackintosh " contains adds Mr. advances
letters equally denies having made any use of Baggs as an agent." After this, no reliance at all ought to be put on the uncorroborated statements of Francis. He must have been an habitual liar. Mr. " Hayward speaks of his habitual disregard of truth," and gives a remarkable instance of it, "More about Junius," Hayicard's Essays. New
Series,
ii.
"his
360-1.
II.
VOL.
98
[chap,
"
man's evidence," because a few days after the execution they had ordered Nuncomar's petition, which implied
the same thing, to be burnt as a hbel, Francis in particu" lar declaring the intimations contained in it as wholly
"
unsupported and of a libellous nature."
The charge was certainly stated fairly, but it was not met with equal plainness. Francis made a number of introductory and irrelevant statements before he came to the
argued at length that Hastings had broken his oath of office in giving Impey a copy of the petition of Nuncomar. He haggled over the authenrefutation.
ticity of
He
the paper produced by Impey, which however he
He did not seriously deny and substantially admitted. that this act on Hastings's part implied a consuggested
it
spiracy between Hastings and Impey which again made probable that Hastings had told Impey of the nature
of the accusations
He He
read out
all
against Hastings. the minutes in which the story is told.
made by Nuncomar
then said it would throw light on the subject if he read a good many more minutes, written both before and after the execution of Nuncomar, and he accord^ above, which show ingly did read several referred to that the majority of the Council on several clearly occasions made insinuations against the judges which
they did not communicate to them or venture to put into the shape of accusations, and at last when the Committee might be supposed to have forgotten what was the charge he had undertaken to meet, he began to
He divided it into two parts, enter upon his defence. namely, the charge as it affected the majority in general, and the charge as it affected Clavering in particular. His
first
argument on the general charge was that

1
it
was
Vol.
I.
p. 251.
X.]
99
contradict themselves
improbable that he and his colleagues should grossly by repudiating early in August, that which they had plainly insinuated both in April and
in
May
before Nuncomar's
trial,
and which they repeated

obvious.
afterwards in September and November.
The answer
to this
weak remark was
They
protected themselves from allowing any contradiction to appear on the face of the Consultations by expunging
Nuncomar's
petition,
and
so
making
it
impossible to
tell
from the Consultations what was the nature of the imputation which he had made upon the judges. The entries
made in April and May could not refer to a trial which took place in the second half of June. The insinuations made in September and November were not contradicted
by the Consultations
as they stood, for
it
might well be
that the petition which they ordered to be burnt contained matter different from that of which their subsequent
insinuations suggested the existence. Francis's argument was thus exactly parallel to the case of a fraudulent accountant who, being charged with
the ledger, says, " Why, how can you suppose I should be such a fool as to contradict the " " day-book ? and who is met by the remark, You forget
making a
false entry in
"
" "
you made an erasure in the day-book so as to prevent it from being in contradiction with the ledger
that
as altered."
argument was that there was no inconbetween burning Nuncomar's petition as a libel sistency and imputing to Impey the very offence with which that In substance his explanation was petition charged him. this. What I said was that " to send the judges a copy " of Nuncomar's petition would be giving it much more
Francis's next
"
weight than
it
deserved
that I considered the insinua-
100
"
IsUKCOMAR'S PETITION.
it
[chap.
tions contained in
"
''
and of a
I think
libellous nature.
against liim wholly unsupported I thought and said so then.
"
and say so still, in the extent and manner in which they were stated in that paper. The person in " whose name it appeared was dead. He had, whether "justly or unjustly, legally or illegally, been convicted of "a crime, and had suffered an ignominious death. Even " if he had been respited after conviction his evidence would have been useless for his credit was gone. A
''
"
"
"
have no
petition from such a person accusing his judges could It came before us without a sort of weight.
"
responsible accuser, without a proof or evidence of any I therefore said it was wholly unsupported, kind.
"
"
No man, I
"
presume, will deny that in strictness
it
was
of a libellous nature.
"
I asserted then, as I assert now, that it was a libel on the whole court of justice in the strict and proper sense " of the word. The dreadful charge contained in it in"
"
eludes all the judges, concerning two of
whom
(Sir
"
Robert Chambers and Mr. Hyde) we never had a suspicion of the motives which we attributed to Sir Elijah
from acquitting them of all blame. Concerning another of the judges, the late Mr, Lemaistre, though we saw him united in the closest
"
" " " " "
Impey, though I
am
far
intimacy with the Chief Justice, and ready to support his opinions on all occasions, with a degree of zeal and
"
passion which, however sincere, was not to be excused, yet in that which constituted the deadly guilt of the " transaction we never suspected him to be concerned, in
"
"
''
a confederacy, I
off
mean with
Sir Elijah Impey, to take
Nuncomar
effect
Mr. Hastings from the of that man's evidence. We were bound therefore
in order to save
" to treat that petition as an indiscriminate libel against
X.]
NUNCOMAR'S
PETITION".
101
"a whole
"
court of justice. Is tliere anything in that resokition, or in the terms of opinion on which it
"
"
my
was founded, that under any, I will not say fair and liberal, but under the most rigorous construction can be
"understood to express or signify that we thought the " " paper false, as well as libellous of all the judges ? Francis then quoted a minute of his own, dated March
1775, in which he gave an account of what he understood by a libel. In that minute lie said, " When
21,
"
the
self
man who
advances a
"
" "
specific charge, declares

it,
him-
ready to come forward and support
and
to hazard
the consequences of failing in his proofs, it may still indeed be presumed that the charge is false, but it does " not partake of the nature of a libel. libeller advances " which he does not intend or is unable to make charges
"
good." Francis then proceeds, " This is my defence against the " charge as it affects us collectively on the face of our "proceedings, and I willingly submit to your judgment
"
"
"
whether the avowed ostensible reasons publicly assigned by me be not sufficient to account for my public official
conduct on the occasion, and to acquit
me of the
present
"charge of contradiction." This strikes me as a miserable defence. It rests entirely upon a set of paltry quibbles upon the precise words which Francis used in his minute. The plain obvious
meaning
of
it,
man
false
of plain sense
the meaning which it would convey to any was that Nuncomar's statements were
and disgraceful, and it is impossible that Francis could suppose or wish any other interpretation to be put What else could be conveyed by burning upon them.
?
them by the common hangman
According to the
elaborate explanation I have quoted,
what really happened
102
NUNCOMAE'S PETITION.
this.
[chap.
was
Xuncomar
was, in
Hastings and Impey.
He
fact, judicially murdered by said so with his djdng breath.
He
behalf.
earnestly entreated the Council to interfere in his Francis believed in the truth of what Nunco-
mar asserted.
Francis insinuated the same thing himself
as broadly as he dared in subsequent minutes, yet because Nuncomar's true statement was not supported by evidence,
and because
his
murder had destroyed
his credit, Francis
deliberately recorded an opinion that this true statement was a libel which ought to be burnt by the common
hangman, and this he afterwards justified by saying that " by a libeller he understood a man who advances charges " which he does not intend, or," as was the case of Nuncomar "is unable" (having been unjustly hanged) "to make good." Thus according to Francis, a true accusation became a libel fit to be burnt by the hangman as soon as the accused murdered the accuser, whereby the accuser became unable to make good his That was what he meant to say by his minute. words. I do not see how it was possible to carry meanness and
prevarication further.
But the importance of this astonishing defence does not stop here. Nuncomar's words were, said Francis, a libel on the Court as a whole, whereas Impey only had been concerned " in that which constituted the deadly
"guilt of the transaction."
Of the other three
judges,
Chambers and Hyde were free from all suspicion of a Lemaistre was suspected only on judicial murder.
account of his intimacy with Impey. This is an admission that the conduct of Impey raised
no just ground of suspicion at all, for if it had, Nuncomar's statement would not have been unsupiôrted.
Impey took a
less
prominent part in the proceedings
X.]
NUNCOMAR'S PETITIOK
103
than Hyde and Lemaistre, of whom Hyde was fully acquitted by Francis and his friends, and Lemaistre suspected only because he was said to be on friendly terms with Impey. Where then, was the evidence of Impey's
guilt
?
ment
of
There was absolutely none except in the stateNuncomar which Francis himself declared to
be unsupported, of no weight, and as regarded the other judges, of such a nature' that it deserved to be burnt by
the
common hangman
as a libel.
dying
received his mortal

bitter personal
wound from A, B, enemy of A, says that as

an infamous
libel,
man says he The C, and D.
against B, C, and
D, the charge
is
but that as against A,
it is true, though unsupported by any other evidence, and of no weight, because the man who made it was of bad Is it not clear that the inference of the truth character.
of the charge against
A is
drawn from the malice of the

it,
person who
professes to believe
it ?
alleged to prove
To put the same thing
not from any evidence in a different
way. The conduct of all the four judges was identically the same. Three, it is said, were innocent, one was guilty
because his motives were bad while theirs were pure. But of the badness of his motives and of the purity of
theirs there
was no evidence whatever.
The admission that Nuncomar's charge against " Lord " " Impey and the other judges was unsupported when it
was put forward, has a special importance of its own. It shows that in August, 1775, Francis knew of no evidence
If Impey's behaviour at, or before or of Impey's guilt. after the trial,, down to the execution, indicated guilt, Nuncomar's charge was not unsupported. Either therefore,
what Francis stated in 1775 was untrue to his knowledge or evidence of Impey's guilt came to light between 1775 and 1788 or Nuncomar's charge remained
;
104
[chap.
unsupported in 1788. But Francis was certainly correct in saying that in 1775 the charge was unsupported.
Notoriously no evidence of Impey's guilt came to light It follows that it was unbetween 1775 and 1788.
supported in 1775, and remained unsupported in 1788, and has now, and never has had, any foundation at all. Having dealt in this way with the charge made against
him
"of"
as
"
I,"
it
as
aifected the majority collectively, on the face " Francis passed to the charge their 23roceedings,"
it
"
related
more
"
he asked
" But had particularly to Clavering. no other motives for what I did beyond
those which I have assigned ? undoubtedly I had, and " I am ready to declare them. Addressing you, as I do,
" " "
"
under an honourable and moral obligation, as powerful and coercive as any that law or religion can impose
upon the human mind,
I should hold myself a perjured.
"
called upon, as in effect I am, for the whole " truth, I reserved any part of it from your knowledge.
if,
man
"
" "
My secret predominant motive for proposing to destroy the original paper produced by General Clavering, was to save hivi and hini alone, from the danger to
"
which he had exposed himself by that rash inconsiderate action. Yet the step I took was not immediately " taken on my own suggestion. As soon as Mr. Hastings
"
"
"judges " which

"
proposed that a copy of the paper should be sent to the a step ^suspicious on the face of it, and by
it
answered
to
impossible any good Colonel Monson started purpose and at

it,
was
could be
desired
"me
"
^
go with him into another room. Barwell may recollect the circumstance.
Possibly Mr.
He
(Monson)
Surely the step was one which the commonest justice required, and which would answer the good purpose of giving the Judges an opportunity to defend themselves against the most terrible of all charges ?
X.]
'
105
I suppose you see what the Governor means. "'If the judges get possession of the paper, Clavering " may be ruined by it.' My answer was, Why, what " To that he replied, I know can they do to him ?
"
then
said,
'
'
'
'
'
"
'
"
'
not what they can do, but since they have dipped their hands in blood, what is there they will not do ?
'
that the original paper "should be destroyed, by the hands of the common " hangman. This short conversation passed very nearly,
"
He
then desired
me
to
move
"
"
I firmly believe, if not precisely, in the terms in which It is not possible I should ever forget I have related it. " or mistake the substance of it.
"
charged with having acted a feeble pusillanipart, let it be remembered that my fears, whether "well or ill founded, were not for myself; that the
If I
"
am
mous
" "
"
extend to me.
danger, whether real or imaginary, could in no way To fear nothing, when we ourselves are
"
" " " "
in no danger, is not an unquestionable proof of resolution ; much less is it a proof of timidity to fear every-
thing for the safety of a friend. It was my opinion however, and is so at this hour, that the danger to General Clavering was real and serious. The author of
the libel was dead.
self the publisher,
"
"
" "
General Clavering had made himand put himself into the power of I cannot bring before you in evidence the his enemies. the great power state of the settlement at that time that was confederated against us, and the universal
;
"
"
combination of
all
power
"
in all its
ranks of Europeans, to support that We were sent out by Paroperations.
liament to inquire into and to reform abuses. The first " discoveries that came before us gave a general alarm.
"
The cause
be the
of Mr. Hastins^s
was made and declared to

the Company's servants.
"
common
cause of
all
106
NUNCOMAE'S
PETITION".
[chap.
"
"
contrary, were considered as their common and were at once the object of their jealousy, enemy, " their fear, and detestation. With a very few exceptions, " we three in effect stood alone against the combined " power of two members of the Council, one of whom was
We, on the
"
the Governor-General, against the Supreme Court of Judicature, against the Board of Trade, and against " the united animosity and clamour of the whole settle" "
and temper of the times, libel on the " whose jjowers were in effect to us Supreme Court, " ^ I undefined, unlimited, and subject to no control, " cannot positively affirm what would have been the " consequence, but I am positively sure that no efforts " would have been spared, no methods unattempted to "harass and distress him, and if possible accomplish his " ruin." He adds, " We had no legal learning, we had no " You may speculate coolly and wisely upon legal advice. " our conduct, but you will not determine equitably if " you do not endeavour to place yourselves exactly in our " At all events, whether we did right or wrong, situation. " we certainly did not do that of which we are accused. " We never said that the contents of Nuncomar's petition were not true." They only said that it was fit to be burnt by the common hangman, as being wholly unment.
If,
in
that state
"
General Clavering had been indicted for a
'
Here Francis appends a note quoting a passage from a letter of May 15th, 1775, saying: "The bounds between the * authority of the Supreme Court and the Council are of too delicate a ' nature to be discussed without there should be, which I trust there " never will This letter be, an absolute necessity to determine them." referred to the bounds between their respective authorities over the treatment of natives in gaol (see Vol.1, p. 99). Tliere was no indistinctness
Impey's dated
'
'
at all as to the jurisdiction of the Court over the

personally,
and Impey had pointed
this out in another

I.
members of Council document which
they had received shortly before (see Vol.
p. 198).
X.]
"
107
supported and of a libellous nature, and that its being " destroyed in the manner proposed would be sufficient to
"
clear the character of the judges so far as they ap"peared to be attacked in that paper." They wished
therefore to clear the character of the judges from an imputation which they believed to be true.
It is difficult to
me to
believe this statement. Notwith-
standing, and indeed a
little
because of Francis's solemn
protestations of his truthfulness, I am disposed to think that in ascribing to Monson the remark quoted he lied.
Both Monson and Francis must have known that the ^ Regulating Act exempted the Council from the criminal jurisdiction of the Court, except for treason or felony, and from arrest in civil matters. If they had not known it before it had been pointed out to them, by Impey in his " observations in Radachurn's case, of which they had had a copy. I can, however, have no doubt that they did
know
In many of their despatches they argue on the it. terms of the Regulating Act as to their authority, and
though people may not study every provision of an elaborate Act of Parliament minutely, they are sure to be acquainted with provisions which confer upon themselves a dignity or privilege. It would require far better authority than the word of Francis, or his oath either, to
persuade
^
'
me that
c.
either he or
s.
Monson was ignorant
of the
15: "The said Court shall not be competent 63, ' to hear, try, or determine any indictment or information against the "said Governor-General or any of the said Council for any offence (not
13 Geo. III.
" being treason or felony) which such Governor-General or any of the " said Council shall or maybe charged with having committed in Bengal,
"
"
s. 17: "Nothing in this Act shall extend to Bahar, or Orissa ; "subject the person of the Governor-General or of any of the said "Council or chief justice or judges respectively for the time being to be
"
arrested or imprisoned
upon any action
suit or proceeding in the said

2
"Court."
See above.
108
NUNCOMAE'S PETITIOK
[chap.
If Monson did speak the words privilege of Clavering. which Francis ascribed to him, he must have known, and
Francis must have known, and each must have known that the other knew that they were false, and were
uttered only as a false excuse for covering a base action which neither chose to avow, even when they were
plotting together. If Francis's account of this matter
is rejected as being either itself a wilful falsehood, or the record of a wilful
falsehood told by Monson and accepted by Francis, what is the true account of the matter ? I believe it to be
The majority of the Council, and particularly Clavering, cared nothing at all for Nuncomar, and were glad that the Court should, by hanging him, put themselves into a position which might be represented in a
simply this
:
hateful light
for this reason they allowed Nuncomar to be hanged without making the smallest effort to save him. When he was hanged it occurred to Claverins:
;
that by sending home his petition he might cruelly injure the judges, and this led him to what Francis
described as " that rash inconsiderate action of his."
As
soon as Hastings proposed to send a copy of the petition to the judges, that they might have an opportunity of vindicating themselves, Monson and Francis perceived
definite Clavering had made a false move. accusation would have brought to a plain direct issue a matter which they wished to nurse up for purposes of
that
If they had forwarded Nuncomar's petition to the Directors and the Secretary of State, they would have made the same mistake as was
calumnious insinuation.
made by the member
of Parliament
who accused Wakley
of burning his house in order to cheat an insurance company in terms pointed enough to give him an oppor-
s.]
NUNCOMAR'S
PETITION".
109
tunity of publicly refuting the charge. They thought that Clavering ought to have kept the paper to himself
as Francis kept secret for his whole life the letter which he had received from Nuncomar, and they made up their
excuse about libel in order to repair their colleague's blunder as well as they could by getting the original paper destroyed. One proof of this is that a month after
they supposed that the paper was destroyed they wrote

^
the minute of September 15, already quoted, insinuating the very charge which they had in August declared to be " wholly unsupported." They used Nuncomar's execution
as Caleb Balderston used the fire at Wolf's Crag, as an excuse for all deficiencies of evidence in their attacks on Hastings.
In short, Clavering was malignant and rash. Francis and Monson were equally malignant, but sly and cool.
This explanation of the matter is, at all events, intelligible. Francis was altogether unable to suggest any other. He begins a long and laboured passage by saying, " I shall
''^
"
not attempt to explain what I never understood, that is, with what intention and for what possible purpose " he (Clavering) brought the paper before the Board." He
had he reinquires, however, into the question, " solved not to make any application whatever in favour
"Why
" "
of
Nuncomar ?
"
"
After a long panegyric on Clavering's

"
strict
and severely upright

bordered
if possible
character,
which
"
on
excess,"
and his delicacy, which made him
particularly fearful
of the imputation of supporting
"
and encouraging the accuser of Mr. Hastings," Francis " observes, With these principles he might possibly think " it did not become him to intercede for a man found " guilty of a capital offence," not even if he believed him to be innocent, to be the victim of a foul crime and of
1
See Vol.
I. p.
251.
110
NUNCOMAE'S
PETITION".
[chap.
the very worst of murderers corrupt judges, murdering under the forms of law wonderful uprightness and deli-
" It is much more material/' adds Francis, cacy indeed. " to his present vindication that he was well convinced " his intercession would do mischief instead of good, and " would rather hasten than retard the execution of
"
Nuncomar."
He
refers to Farrer's
evidence, which
says that when he proposed to the General to receive and transmit to the judges a petition of Nuncomar, addressed
to the
Governor-General and Council, Clavering's answer ended with the words, " Nor indeed did he think
"
it would do any good." This was not his principal reason, as appears from the extract from Farrer's evidence given above but apart from that the remark is in every
;
way
absurd.
The question
1st.
of the petition
was discussed
on the night of August
Nuncomar was hanged on
How could the presentation of the morning of the 5th. a petition on the 2nd, 3rd, or 4th, hasten his execution, and what other mischief could it do ? If it had done
nothing else it would, at all events, have greatly increased the responsibility of the Court, for it would have enabled their enemies to say they put him to death in face of
them
the urgent remonstrances of the Council, who called upon to spare him in order that he might bring Hastings
to justice.
I believe the truth to
have been that success was what Clavering feared. His doubt as to the petition doing good was not as to its doing good to Nuncomar, whom it might benefit, and could not possibly injure, but as to the good which saving Nuncomar would do to himself and his party. He and his friends saw the use which might be made, and which afterwards was made of Nuncomar's execution, and they did
and not
failure
See Vol.
I. p.
223.
X.]
NUNCOMAR'S
PETITIOitf.
Ill
not wish to save him.

as far as they could.
They had used him against Hastings
sacrifice,
He was of no further use except as and they rejoiced at his death on the gallows.
in this matter.
Yet another observation occurs upon Francis's conduct Francis was bitterly disaj^pointed at not on the Committee of Managers of the Imbeing put peachment of Hastings. The subject was hotly debated
exclusion.
in
Parliament, and Francis complained bitterly of his His feelings towards Hastings, he said, were
not of the nature of malice, though their intercourse had ended in a duel in which Francis was wounded. "With regard to
feelings
Impey Francis admitted
that the state of his
had not only said in the Bill that he would never give a judicial vote in any cause in which Impey might be a party unless he could safely give it for him, but in the speech under consideration after referring to that de" claration he added that he had repeatedly declared to " his friends, and particularly to Sir Gilbert Elliot, that "he would take no part in the prosecution of Sir Elijah " " Impey," that he would not be implicated in any shape
"
was different. debate on Pitt's India
He
in the
impeachment
that
Francis,
who regarded
of that gentleman." This proves bitter animosity, sustained
over
many
for acting as the accuser of Hastings,
years and ending in a duel, as a qualification looked upon his
hatred against Impey as so deadly and so personal that he could not trust himself to take any part in any accusation against him. A fact existed in which this
burning hatred mio;ht well originate in the heart of one ^ of the most vindictive of men. There was in Calcutta
1 -
Pari. Hist. xxv. 1225.
This story
is
cutta, in
life
which may
told at full length in Mr. Busteed's Echoes of Old- Calalso be seen the pith of Grand's account of his o\yn
(pp. 198-300).
112
[chap.
man named
Grand, whose wife Francis was accused of
It was proved that he got into her bedroom seducing. a ladder in her husband's absence. Grand brought an by
action against Francis and recovered Rs, 50,000 damages, before a Court composed of Impey, Chambers, and Hyde,
sitting
without a
I
jury.
Chambers
dissented.
jDresided.
fell
think Impey was WTong.
Impey The evidence
far
short of proof of adultery,
although after the
action Mrs. Grand was unquestionably Francis's mistress. I also think that Rs. 50,000 was an exorbitant amount of damages for a mere trespass with intent to seduce. This would fully account for the passionate hatred wîth
which, by his
own
admission, Francis regarded Impey.
Notwithstanding his declarations about not taking part against Impey, I believe that he did so in underhand
ways, by suggestions to the prosecutors and by anonymous Francis was the most skilful calumniator of writine^s.
his age. pears to
Evidence which many people think strong apbrand him with the infamy of being the author of
The strongest part of it consists of the similarity of his character to that of Junius and his power of writing
Junius.
that peculiar feigned hand by which Junius attempted to ^ He resembled Junius in the union in disguise himself.
his person of the character of a devil ments of a forger.
and the accomplish-
After
examining
this
bearing upon
every document, and every fact matter with anxious attention, it
^ devil etymologically is 5ia^6\os or accuser, but I do not mean to exclude the qualities wliich the word counotes. As to forgery it seems clear that the MSS. of Junius are in a variety of handwritings, one of
which
is
occasions
said to be identical with a disguised hand employed on some by Francis. So far as I have read the Junian controversy, it
seems to
in
me
which learned and accomplished men or less clever guesses and proof.
to be remarkable principally as an illustration of the way fail to distinguish between more
X.]
113
appears to
me
that the only foundation for the monstrous
load of infamy laid upon Impey is to be found in the letter of Nuncomar to Francis, which Francis suppressed, and in the petition of Nuncomar to Clavering, which
Francis caused to be burnt as an unsupported libel in 1775, and procured to be turned into an article of im-
peachment in 1788.
The subsequent history of the charge seems to have been as follows For many years no definite accusation was brought against Impey in relation to Nuncomar, but
:
after thirteen or fourteen years
without the discovery of a single additional fact, a charge was framed on the very evidence which had been known to his enemies for the
whole of that time. This convinces me that the charge which ultimately was brought, and which the House of Commons refused to entertain, was simply the result of
unsupported suspicions, originally inspired by Nuncomar into Francis and Clavering, though they were undoubtedly shared by the natives to
injustice in judges
whom
and oppression
of
things.
in all probability, in governors appeared
the
natural course
of
These suspicions the
majority the purpose of making against their enemies insinuations which they knew they could not prove, and which, at the time, they did not even believe to be
for
the Council
nourished without evidence,
true.
Francis nursed them for thirteen years, after which he perhaps came to regard them as self-evident
truths.
His pertinacious and undying animosity infected Burke, who eagerly adopted the suspicions as truths because they fell in with his own furious hatred against
Hastings. asserted by
Fox and Elliot assumed the truth of what was Burke and Francis.
I
VOL,
II.
114
;
[chap.
ticularly
Each was a warm-hearted, generous man each (parFox) was an ardent partisan. The fact that his
party attributed atrocious crimes to a particular person, and especially to a lawyer for Fox hated lawyers was
to
each sufficient proof that the crimes imputed had been committed, for party generates a faith as ardent Their natural generosity of feeling filled as religion.
them with a detestation of the atrocities which they had come to believe, and the result was that a belief in the
crimes of Hastings, and the infamies ascribed to Impey, became a part of the Whig tradition, and thus found its
have ever been popular

pact,
into the only writings upon Indian subjects which as regards Hastings with considerable modifications, but as regards Impey in a com-
way
condensed form, which has irretrievably damned his memory. I am sorry for him. I believe him to have
;
but this book will be read by been quite innocent and Macaulay's paragraph will be read hardly any one, So with delighted conviction by several generations.
long as he
murderer.
Besides his vindication of his
is
remembered
at
all,
poor Impey will stand in
a posthumous pillory as a corrupt judge and a judicial
own
character Francis in
the pamphlet in question makes two reflections upon Hastings and Impey, in which I think he is more
successful than in his defence of himself. First he points
out that Hastings violated his oath of office in communicating the copy of Nuncomar's petition to Impey
and his brethren, and secondly he observes that the communications thus secretly made after the resolution taken in Council to have the original and all copies of it destroyed, prove a degree of intimacy between
Hastings and Impey, which tends to discredit Impej^'s
X.]
115
assertion that the judges
knew
of
Nuncomar's charges
against Hastings only by vague rumour. In each of these observations there is, I think, some
degree of weight. I do not know the terms of the oath of secresy, nor are they in my opinion of any great Oaths of such a nature never interest or importance.
bind closely, and it is one of the great objections to their use that if they are rigidly enforced they often do cruel injustice, and that if tacit exceptions to them are
admitted they not only become useless for the immediate purposes for which they are imposed, but are also snares
to the honesty of those
who take them.
Whether
in
the particular case there was any moral guilt in the breach of the oath of secresy, and whether its terms were or were not subject to exceptions, express or
implied, are points on which I express no opinion, but I have no doubt that apart from the oath of secresy it would be not only excusable in Hastings to inform the
judges of the attack made on them, but it would be his imperative duty to do so. It furnished them with an answer to an attack which Hastings's sagacity probably
which they had a right. between Hastings and Impey this communication, I think it proves no more proved by than was always known, namely, that they were on intimate terms. I do not know that if there were not other evidence on the point it would prove even that. If they had been strangers the communication would not have been unnatural. It, however, greatly weakens Impey's argument that he had no means of knowing the particulars of Nuncomar's accusations against Hastings, because they were made in the Secret Department under an oath of secresy.
foresaw, and to
As
to the connection
116
[chap.
Of
that
if
Hastings's conduct to his colleagues I will say only he had acted openly he would have done better
did, but his conduct was very characteristic. He was apparent!}^ a curiously cautious, secret man. Some
than he
years after this Irapey complained bitterly that Hastings made his attack on the Siipreme Court without the
smallest warning of any sort, and while they were living in close intimacy. And other instances of a similar
kind occur in his career.

Itnpey's answer to the pamphlet written by Francis turns mainly upon the obvious topics which are dealt
with above, but in a manner which does not

quotation.
much
favour
The
following passages, however,
may
be
cited, both for their own sake, and as specimens of Impey's style, which to me appears manly and nervous.
I preserve his italics.
"It" (Nuncomar's petition) " was then a libel because " it imputed guilt to all the judges collectively, and did " not distinguish them from Sir Elijah Impey, to whom " alone the whole guilt was to be imputed. Every pub" lication, therefore, which attributes the guilt to them " This is collectively and not to Sir Elijah, is a libel.
"
"
no new distinction by Mr. Francis, no afterno ex post facto vindication. thought, " The question, as stated for Mr. Francis, is put thus
said to be
: '
"
is, whether by those declarations declarations at the time of condemning the paper)
The question
contradicts
'
"
(the
"
'
"
'
"
'
" "
'
he which he has charged the prosecution and execution of Nuncomar on Sir Elijah Impey, as a political measure of the most atrocious
many
others, in
'
kind.'
"
By
this
must be understood the many declarations

this
in
"
which he has charged
on Sir Elijah
singly, for it is
X.]
"
117
admitted by him that to make the charge on all the "judges collectively is a libeh " To support this position several minutes are produced. " This is said to be his (Mr. Francis's) defence against the
"
charge, as
it affects
the Council collectively."
After specifying the minutes, and distinguishing those which preceded the execution of Nuncomar, Impey says,
" "
" "
other minutes are directed against the whole Court, against the judges collectively. Not one of them discriminates the conduct of Sir Elijah Impey from
that of the other judges by the most distant allusion. Not one of them has the least tendency to exculpate
The
" " "
any of the judges.

minutes
is
These, therefore, by the admission of Mr. Francis himself, are libels. The writing of these
absolutely irreconcilable with
"
"
the idea
of
condemning Nuncomar's petition as a libel, hecause it " included all the judges, for the minutes themselves " equally include them all ; these must be libels if that " was, and they ought to be treated (to use Mr. Francis's
"
as a libel against a whole court of justice It does not appear to be true ought " from anything that has been said or published, that
"
'
own words)
'
to be treated.'
" "
Mr. Francis ever did charge Sir Elijah Impey singly.

It at present, therefore, carries
it is
every suspicion of being

distinction,
"what
"
denied to be, 'a
new
an
after-
'thought, an ex post facto vindication.' " Can Mr. Francis say that before this paper " duced at the Bar of the House of Commons he
"
was prohad ever
revealed the
friends
? ?
contents of
it
to his
most confidential
"
" "
Can he
defence
say that he ever before made this The manner in which the attention of the
public has been called to this subject makes it highly " incumbent on him to produce one minute, one declaration
118
" "
"
least, in
[chai-.
at
which he has charged Sir EHjah Impey

'
singly, as is asserted with this political measure of the most atrocious kind.' It is the act of a friend to
'
"
" " "
advise
He No
him to do it, his friends and the public expect it. in time yet to urge it against Sir Elijah Impey. is decision has yet been passed on the first article. He
would not have asserted it if he could not do it, and he from it. Let him produce one. " It will be an extraordinary case indeed, if one judge " was able to execute so atrocious a measure, two of the " other judges being admitted to be under no suspicion of " corrupt motives, and the third only suspected from being " intimate with the corrupt judge, from acting as his " instrument on all occasions, and from the notorious
"
will not shrink
"
violence of his temper."
After some remarks on the character of Lemaistre, in which he hints amongst other things at the fact that
Lemaistre passed
much
of his time at cards with Francis,
and states openly that there were great differences between Impey and Lemaistre, Impey proceeds as
follows
"
:
"But Mr.
"
" "
Francis's
character
is
treated
with
still
^ greater freedom by this author, who makes him declare with the most complete sa7ig froid, That he did not hesitate to declare in the most explicit manner,
'
'
'
"
"
that the private viotive of his standing so forward as 'he did, for the destruction of the copy and translation
of
'
"
"
'
the petition, sent by Nuncomar previous to his execution to General Clavering, was not the public
'
"
"
one assigned.' Does he esteem
it
trifling
matter to put
false
reasons on a record which the Parliament has required

^
I.e.
Francis himself.
X.]
laid
119
"to be
"
before
tbe
King's
ministers,
as
official
authentic intelligence of the acts of the Council and " the special reasons of those acts ?
"After such an avowal, who

"
is
to
distinguish on the
'
" "
"
'
public Company what are his true from those which he may afterwards in the reasons, most solemn and explicit manner,' on his honour,' and
records
of
the
'
'
'on his oath,' 'not hesitate when pressed to declare not his true reasons,' but that he was really actuated
' '
'
'
"
'
by some private motive

"
'
What a door does this open against him ? " private motives of ambition and vengeance, after such a " declaration had been advanced by himself, might not
What
" "
"
those
for
who
are not inclined to think well of him, assign
public acts, of which he has himself perhaps the true and honest reasons ? given " Let us now suppose the reasons assigned on the "record to have been only ostensible, let them be
many
" "
"
"
"
expunged and every memorial of them be destroyed, let the true operative motive be substituted in theirIt was his fear for the safety of General Claverplace. ing, Colonel Monson and he observing that the judges had gone all lengths, that they had dipped their hands
again proceed on the same principle. " This was a reason totally incompatible with that assigned for condemning the paper as a libel, this was an
"in blood for a political purpose, and that they might

"
"
"
" "
"
" "
unequivocal accusation of the judges collectively and of the whole Court, not of Sir Elijah Impey separately. The judges, not Sir Elijah Impey, had gone all lengths,
not Sir Elijah Impey only, had dipped their hands in blood for a political purpose, and the fear was,
for they,
that they, not he only, might again proceed on the
same
120
"
"
[chap.
and commit another legal murder on the of General Clavering. What is become of their person " want of suspicion of Sir Robert Chambers and Mr.
principle,
"
" " " "
"
Justice
Hyde now
Was
all this fear for
the safety of
General Clavering on account of Sir Elijah Impey alone ? Mr. Justice Lemaistre was then suspected only from his intimacy with Sir Elijah Impey. Was it thought
that he was so
much an instrument
and
for
of Sir Elijah, as to
have aided him in

the
inflicting a capital punishment on
"
"
General
what
For what was esteemed
publishing a libel." After pointing out the impossibility of believing this story to be true, on the grounds already given, Impey
again proceeds
"
"
"
"
"
^ right has Mr. Francis to aitribuie their conduct to other motives than ivhat theij have assigned, and to
What
throw so gross an imputation on the memory of his deceased friends, as that of having recorded themselves liars ? Can common sense endure that his testimony
should be received to prove that the panic operating on the minds of him and Colonel Monson had force suf-
" " "

"
" "
induce them to condemn a paper as a libel, which in their consciences they then thought true, and which Mr. Francis still thinks true, and so add a stigma
ficient to
to the
memory
of a
man whom
"condemned
"
to death, because
they knew to be falsely he had justly remonstrated
against the iniquity of his sentence ? "Was this a cause that could produce such effects?
"
" "
Was
The
this a fear, qui cadere potest in
assigning of such a fear as a motive,
"
gentlemen been alive, more real danger to Mr. Francis than the supposed
'
virum constantem ? had those have been the cause of might

The
italics are
The conduct
of the majority of the Couucil.
Impey's.
X.]
121
"
"
Would
publication of the libel could have been to the General. either of those gentlemen have borne that such
"
"
Would
a defence should be set up for him with impunity ? that brave man whom Mr. Francis represents as
"
"
"
dying in the service of his country, not in an honourable but an odious service, not in the field of battle, where
his gallant mind would have led him, but in an odious unprofitable contest wovild he have suffered himself to " be protected from such a danger in such a manner ?
"
"
"
Would
the Colonel have borne to hear such a concur-
rent motive
assigned
to
himself
Would he have
falsified
"
thought
" " " "
it
honourable to the General to have
the record for his protection against such a fictitious danger ? If their fears were so predominant on the
16th of August as to produce these extravagant
effects,
how came they
so far dissipated, that the
same persons
"should on the loth of September following, adopt in " their own name, what through fear only they had conthe petition of the convict? If it was on the 16th of August, why was it less so on ^'dangerous "the loth of September? Their fears in August were " that they were betrayed by a member of their Council
in
"
"demned
to Sir Elijah,
"
had that suspicion ceased in September

is
"
?
The conclusion
Mr. Francis
is
''
as follows:
supposed to have professed a neutrality
" "
during the prosecution of Sir Elijah Impey. That he has professed this is not doubted, but that he has not
"
kept it has been visible to those who have attended to his behaviour while it was proceeding.
Sir Elijah may possibly have no reason to wish that he had preserved his neutrality. He is probably under no apprehensions of him as an informer, for his fund of
"
"
"
122
"
[chap.
"
"
The intelligence must have been long ago exhausted. zeal and activity of a professed enemy, satiating his
a prosecutor, ever acts on a generou-s ^ This Mr. people in favour of the party prosecuted. Francis has already experienced. In neither of these
vengeance as
" "
"
characters can he be dreaded.

"
Mr. Francis,
who must be acquainted with
the temper
that,
'
" "
of his
own
heart, has
more than once declared
on
account of his disposition to Sir Elijah Impey, he " would never sit in judgment on him, nor ever give " a judicial vote in any cause in which Sir Elijah might
'
'
'"be a
"
" "
party, unless he could safely give it for him.' Passions do not argue logically or make metaphysical distinctions, they do not distinguish accurately the cases that are favourable or unfavourable to those against
"
they have been excited. After that declaration, notwithstanding the qualification annexed to it, he " is most certainly to be dreaded by Sir Elijah Impey
"
" "
"
whom
should he ever become his judge. There is another character, in which he may for the same reason be feared,
that of a witness.
If
neither of these characters be
"
his friendship or " indifference.

"
assumed
enmity must be matter of
It is not Sir Elijah

2
"
" "
enemy.
self as
He has by his
enemy
of
the
Impey who has miirked him as an public declarations marked himSir Elijah, who only gives credit
he
is so.
to those declarations in assertinsr that
From
"
the picture of his

^
own
heart delineated by Mr. Francis
This alludes to the refusal of the House of
Commons
to
make
Francis
a manager upon the impeachment of Hastings. In this and a few other places I have substituted a full stop for a comma in the original.
'^
X.]
NUNCOMAR'S
PETITIO:Nr.
123
"
"
when he made them, Sir Elijah Impey's must be deformed indeed, if it does not appear to advantage, " when placed, as Mr. Francis desires that it should be, " Let Mr. Francis really desist from to his. in
himself
opposition
" "
there is assuming the character of a judge or witness and not treat his no reason that Sir Elijah Impey should
"eternal hostility with everlasting contempt."
CHAPTER
XI.
OF THE QUARREL BETWEEN THE GOVERNOR-GENERAL IN COUNCIL AND THE SUPREME COURT.
I HAVE given some account already of the relation between the Governor-General's Council and the Supreme Court which led to the impeachment of Impey. I pro-
pose in the present chapter to describe the leading incidents in the quarrel, and in particular those on which
were founded the remaining articles of impeachment These charges were, first, that Impey against Impey. had misconducted himself in a cause known as the Patna
Cause.
Secondly, that he
had unwarrantably and
for
corrupt purposes of his own extended the jurisdiction of the Supreme Court. Thirdly, that he had misconducted
himself in a cause called the Cossijurah Cause. Fourthly, that he had corruptly accepted the office of Judge of the
Sudder Diwani Adalat. Fifthly, that he had corruptly abetted Warren Hastings in certain proceedings for which
Hastings was then under impeachment, by improperly taking affidavits intended for his justification. No one
of these charges was ever proceeded with. As, however, relate to an exceedingly curious incident in the they
history of British India, as they are connected,
though
in
CH. XI.]
THE QUARREL WITH THE COUNCIL.
12r<
that of
an indirect way, both with the story of Nuncomar and Warren Hastings, and as they have been greatly misunderstood and misrepresented, I propose to give an
account of them.
affidavits
All, except the charge relating to the

topic, the quarrels
form part of a single
between
the
Supreme Court and the Governor-General and his Council, which lasted till Impey left India, and which,
long after his death, broke out again in different forms. As I have already explained, the East India Company
as
civil
its leading servants in India, both were greatly disposed to regard the military, sovereignty of India as their own private property, and to resent all interference with it by Parliament as a
a corporation, and
and
wholly unwarrantable and tyrannical invasion of their They spoke of the sacred rights of the Emperor rights.
and the Nabob of Bengal just as the mayors of the palace may have stood up for the rights of the Rois fain(ânts. The policy of Parliament was to assert the rights of the King of England and to establish in India institutions This by which those rights might be maintained.
policy was, however, adopted in a
way
characteristically
Like many later statutes the vague and imperfect. ^ Act used language mvolving problems, Regulating the solution of which was left to those who had to work it, because Parliament, either from ignorance or from timidity, did not choose itself to solve, or even to study, them. Some parts, both of the Act and the Charter, appear
to give the
Supreme Court jurisdiction over every one in Bengal, Behar, and Orissa, and at least ône provision in
13 Geo. IIL c. 6.3. * S. 4 of the Charter makes the judges "justices and conservators of " the peace and coroners within and throughout the said provinces, dis" tricts, and countries of Bengal, Beiiar, and Orissa, and every part " thereof, and to have such jurisdiction ayid authority as our justices of
1
126
[chap.
the Charter was capable of a construction which would have given the Supreme Court superintendence over the
whole administration of justice in Bengal. It would be tedious, and in such a work as the present inappropriate,
go into a detailed inquiry into the true legal meaning of various expressions which in different parts of the Act and Charter describe the persons who were to be subject
to
to the jurisdiction of the Court. They are sometimes " called ^ all British subjects who shall reside in the
"
"
-
kingdoms of Bengal, Behar, and Orissa, or any of them under the protection of the said United Company." " Sometimes ''his Majesty's subjects are contrasted with
any inhabitant of India residing
kingdoms."
"
" "
The
in any of the said " Charter refers to subjects of Great
Britain, of us, our heirs,
and successors," as qualified
to
be jurymen in criminal cases at Calcutta.

is
is
No
definition
given of any of these expressions, though their meaning by no means plain.
and Orissa were British subjects.
In one sense the whole population of Bengal, Behar, In another sense no one
was a British subject who was not an Englishman born. In a third sense inhabitants of Calcutta might be regarded as British subjects, though the general population of Bengal were not. Each of these possible interpretations, and I will not say that there may not have been others, had its own special inconveniences and recommendations. That these difficulties in the interpretation of the
(ni7- Court of King's Bench may lawfully exercise within that part of "Great Britain called England by the common law thereof." This might have been so construed as to enable the Court to issue writs of mandamti=!, prohibition, and certiorari to every court in Bengal, and
' '
to issue a habeas corpus to
zenana.
-
any native to bring up the women in his i 13 Geo. TIL c. 63, s. 14.
*
Ibid.
s.
16.
S. 19.
XI.]
127
Regulating Act were of a substantial kind, appears from detailed discussions on the subject in the papers printed in 1831 by the Select Committee which sat to collect
materials for the Charter Act of 1833.
I
that in 1829,
quote a few lines from these papers in order to show when the early quarrels between the Council
and the Court had become matter of history, persons of the highest eminence considered that the view which
the
Supreme Court
was so
far
diction
in Hastings's time took of its jurisfrom being exaggerated, that it was
it
narrower than, upon mere technical rules of construction, should have been.
^
In an elaborate minute, Sir C. E. Grey, then Chief Justice, after a full examination of the authorities, says " Upon these grounds and authorities I could not come
:
"
''
to
Geo. III.
" "
" " " "
"
any other conclusion than that if the Act of 13 c. 63, and the Charter of Justice of 1774, which are the foundations of this Court, were at this
time to be interpreted by themselves and not in reference to a scattered flight of subsequent enactments and
ordinances, the Court throughout the provinces which constitute this presidency would have a jurisdiction,
however inconvenient, over
all
persons who, according
to the ordinary rules of English law, should be subjects " of the Crown, whether absolutely or temporarily. But
" "
is scarcely necessary for me to say that I do not consider the Court to possess that jurisdiction in such a "way as to be used for any practical purposes at the
it
"
present time."
1 Fifth Appendix to the Third Report of the Select Committee of the House of Commons, pp. 1125-1158, dated October 2nd, 1829. The
passage quoted in the text is at p. 1144. Many other elaborate papers on the subject, especially a minute by Sir C. Metcalfe (April 15th, 1829,
pp. 1069-1088), are to be seen in the
same
place.
.128
^
[chav.
In a letter from the judges of the Supreme Court (which seems to have been written in 1829) to the Board
of Control, similar opinions are expressed. The judges " It is in truth a matter of great difficulty to show say " with any certainty in what relation it was that the
;
" " "
Legislature then" (in 1773) "meant it to be understood that the Bengal provinces and the inhabitants of them
were placed." They then point out that, according to the practice and decisions, Hindoos and Mohammedans had been excluded from the jiirisdiction of the Courts, and they
suggest that that was rather convenient than technically " It would not perhaps have occurred to the correct.
"
present judges of the
"
this rule of construction, if they
Supreme Court to have laid down had been called upon

any reference
to usage.
"
"
to look at the statutes without
"
"
" " "
But it is certain that a usage has prevailed of proceeding as if that part of the jurisdiction of the Supreme
Court which belongs to it as a court of Oyer and Terminer did not extend to the mass of the Indian population beyond the limits of Calcutta, and it is scarcely
necessary to observe that if it did it could not be eifecshould be at a loss, however, to tually exercised.
" " "

"
We
say upon what
legal
grounds any
class of the Indian
natives could be considered to be not personally liable to the Court of Oyer and Terminer for crimes committed
"
"
"
"
'
any part of the Bengal Presidency, if it could be shown that they were of any class which in 1774 was manifestly and unquestionably subject to the Crown and it seems ^ to be at the least very doubtful whether natives of Calcutta must not have been so."
in
;
1 -
Ibid. p. 1113.
No
date or signature
is
given.
Not
inhabitants.
is
clcir,
and
assumed
Tlie local jurisdiction over Calcutta was perfectly in the earlier part of the sentence quoted, j
XI.]
129
of the language of the Act arose, have pointed out, from the fact that its authors did not wish to face the problem with which they had to deal, and to grapple with its real difficulties. They wished that the King of England should act
The vagueness
as I
as
the
sovereign
of
Bengal,
but they did not wish
to proclaim him to be so. They wished not to interfere in express terms either with the Mogul Emperor
or with the
Company which claimed under him.
Hence
the obscurity of the language about British subjects. This fundamental obscurity, showed itself in another
way.
The
left
relation
was
"
undefined.
^ the whole " said presidency, and also the ordering, management, " and government of all the territorial acquisitions and
between the Council and the Court The Council was invested with civil and military government of the
"
^
revenues in the kingdoms of Bengal, Bahar, and Orissa."
The Governor-General and the Council were exempt
from the criminal jurisdiction of the Courts except in cases of treason and felony, and ^ they were not liable to be arrested or imprisoned, but there is nothing else in
all
the Act to exempt them from the responsibility to which European British subjects, and all servants of the
Company
were, on the narrowest possible
construction
There was nothing to say what part of the institution over which they presided was to be regarded as having a legal character of its
subject.
of the Act,
made
own beyond the

&c.,
The following vague expression was vested in them, " in like manner management, " to all intents and purposes whatsoever, as the same
:
"
now
are or at
1
any time heretofore might have been

c.
13 Geo. III.
63,
s.
7.
s
2 S. 15.
S. 16.
VOL.
11.
130
"
"
THE QUAEREL WITH THE COUNCIL,
[chap.
exercised by the President and Council or Select
Com-
mittee in the said kingdom." It was quite consistent with this that Parliament might intend to authorise the
to decide what, in fact, the powers of the and Council were, and how far the various inGovernor stitutions by which the government of the country was being carried on were lawfully established, such questions
Supreme Court
servants of the
for acts
being raised from time to time by actions brought against Company, or against the Company itself,
done in their
official
capacity.
I think, indeed,
consequence was not only involved in the of the Act, but was intended to follow by its language To protect the natives against oppression was authors. the purpose for which, on many occasions, the Court was
that
this
alleged to have been established, but, according to the whole order of ideas current in England in the eighteenth
century, the only
way
of effectually preventing oppression
was by subjecting every one to actions in the courts at Westminster for any illegal act which he might commit, especially if it were done in any ofificial or public characHence the Governor-General, every member of ter. Council, and every servant of the Company, was by the Act rendered liable to an action for every one of his acts, official or otherwise, by which any person's private
interests
were injured.
Again, all the parties concerned agreed that the powers of the Supreme Court superseded, at least in Calcutta
itself,
the powers of such Company's courts as there were
there, except only those which related specifically to the collection of the revenue. In this state of things it is not
surprising that the Council should have looked with much suspicion on the Court and its proceedings, or that the pro-
ceedings of the Court, whether legal or not, should have
XI.]
THE QUAKREL WITH THE COUNCIL.
131
given the greatest offence to the Council, The history of their relations can still be clearly traced by reference to the appendices to the report on Touchet's petition.
They are four in number, and contain a large number of papers, in which all the principal matters in debate between the two bodies are described. ^ The order in which
they are arranged
is
extremely puzzling, as
it
depends
upon the arrangement of the despatch in which they are enclosed, but when arranged and read in order of time
they appear to me to set in a sufficiently clear light a chapter of Indian history which has been much misunderstood.
The
first
paper to be noticed
is
letter
from Impey
to the Secretary of State (Lord Rochford), dated 25th, 1775, giving his first impressions as to the
March
admin-
istration of justice. " by the great credit "
the town of Calcutta, which the English Government has within these few years obtained, is become ex" tremely populous, and its black inhabitants are daily
says that
increasing.
He
"
"
"
They
judges
"
to sit only
Were the are extremely litigious. on causes between the black inhabi-
"
tants of Calcutta, they could not go through with one half of them." Additional courts for causes up to
if possible,
Rs, 500 should be established for Calcutta, and,
in the provinces, and the judges ought to go on circuit Additional justices of the peace are greatly wanted, and Impey suggests a cotwall, or native police magistrate,
for
^
each of the thirty-one wards into which Hastings had

The volume
in which these papers are printed is not even paged. The appendices are the Patua Appendix, the Dacca Appendix, the CossiThe only possible mode of jurah Appendix, and the General Appendix. reference is by specifying the appendix and the number of the enclosure
or sub-enclosure.
-
Gen. App, No. 32.
132
THE QUAKKEL WITH THE COUNCIL.
[chap.
divided Calcutta.
He
shows how unsuitable secondary
Transportation English punishments were for India. " could not be carried out. Imprisonment to the inferior " indolent Indian is no punishment give him a space to
;
"
upon and rice and water, it is a reward." It is remarkable that he does not refer to whipping. Amongst " The Governorthese and other observations he says " General and Council have been much alarmed lest their " officers should have actions brought against them for " acting under their authority in the courts in which they " I have preside, and in the collection of the revenues.
lie
:
service to attend as assessor (I suppose to " the Council), not claiming any voice, but simply to " advise, hoping that it might give a degree of sanction
offered
"
my
"
"
"
"
to their legal proceedings, or prevent unnecessary suits against their officers to the embarrassment of their
" "
the revenues.
it
business and the prevention of the speedy collection of If my offer should be accepted, I hope
will
meet the approbation of His Majesty,

interested views,
as I do
it
" "
from no
but for the good
of
the
Company." ^ By the same fleet the Governor-General in Council mforms the Company that the line between the jurisdiction of the Supreme Court and the Country Courts " is not yet drawn We understand, however, that
:
"
"
the
Supreme Court have declared peremptorily against
"
any other criminal jurisdiction existing in Calcutta than that established by the Charter." The extent
it is
of their civil jurisdiction,
said,
is
still
undecided.
moderate, and indeed neutral, statement, was 2 very shortly afterwards followed by a minute, dated This
>
'^
Letter of
March
24tli,
1775 (Gen. App. No,
-3,
end.
3).
Gen. App. No.
3, encl. 1.
XI.]
133
April nth, 1775, by Clavering, Monson, and Francis, censuring the conduct of the Court and of the judges
in the
l)ad
strongest terms. are said to have

division
The Council
of
Moorsheda-
diwan of that
process,
the native complained had been arrested on mesne
that
ticulars of the action in
which had produced universal alarm. The parwhich he was arrested are not
stated
similar proceedings, however, are said to have taken place at Dacca and in the neighbourhood of Calcutta. The minute goes on to say that if the officers
;
by
if
whom
the revenue
is
collected are to be liable to arrest
for acts
official duty, and debtors arrested by them in order to compel the payment of arrears are to be set at liberty by writs of habeas
done in the discharge of their
corpus,
"
it
will be impossible to collect the revenue.
It
is
stated that the

"
Diwani Adalat
in Calcutta
"
has been to-
The phousdarry cutcherry, or criminal abolished," and the Supreme Council has recourt, fused for some months to hear appeals, lest its decrees should be set aside. The authors of the minute add that the proceedings of the Court appear to them to violate
tally suspended.
is
the spirit of the Charter and of the Act, and that they cannot " discover in the judges any traces of that moder"
ation and by them.
discretion
which might have been observed"
Finally, they press
upon the Directors the
importance of reducing the jurisdiction of the Supreme

Court.
Impey's letter and the minute of Clavering, Monson, and Francis, mark, as it appears to me, the moment at Avhich the quarrel between the Court and the majority of the Council began, or at least broke out openly. It will be observed that it was with wholly unconnected
the proceedings
against
Nuncomar and preceded the
134
[chav.
accusations brought against him by Hastings and Mohun Persaud, though the minute which I have just referred to
was almost immediately followed by those proceedings in relation to the prosecutions against Nuncomar which I have already examined in detail, and which in themselves constituted a deadly quarrel between the Court and the
majority of the Council.
succession.
Other subjects of dispute, however, arose in rapid The first of these was the case of Commaul
O Dien, to which I have referred in passing already. His case brought up for the first time questions of great importance between the Court and the Council. The particulars of it are to be found in ^ two papers
published in the General Appendix to the Report of Touchet's Committee. The Governor-General and Council
Dien having been matter thus Commaul committed in execution by the Council of Revenue of Calcutta for an arrear of revenue due from him as farmer
state the
:
of the revenue for Hidgelee, obtained a writ of habeas corpus from the Supreme Court. The return was excepted to as defective in form, because
"
it
did not " express a power
in the Council of
Revenue
to
commit without
bail or
"
mainprize,
"
inserted."
although words to the same effect were Thereupon the Court ordered the President
Commaul to bail, and said he was not to be taken in custody again till his under-renter had been called upon to pay the arrears and had proved This the Governor-General and Council reinsolvent.
of the Council to admit
garded as a usurpation on their rights as diwan. The}^ considered that the Regulating Act, which gave them
^ No. 3, end. 14, Governor-General in Council to Directors, September 16th, 1775 ; end. 25, Impey to Court of Directors, September
19th, 1775.
XI.]

ordering,
135-
"
the
management,
it
and
"revenues," gave
to
"
them
exclusively,
government of the and that the

to take cognisance of
or belonging to the " revenue." For this reason mainly they expressed their " opinion that the proceedings in the release of Commaul
"
Supreme Court were not empowered " any matter or cause dependent on
"
"
"
O Dien exceeded the limits of the Court's jurisdiction, and were against law." Upon these grounds " it was
the unanimous opinion of the majority that we ought " to direct the Provincial Council to imprison Commaul
and his security, and to keep them in custody till they had paid their arrears, ^ and also that they should give " no attention to any order by the Supreme Court or
" "
"
any of the judges

revenue."
ever,
^
solely concern the of the majority, how" that he would not assent to having declared
"
in matters
which
One
of the
members
these measures proposed, unless they were supported by the concurrence of the Governor-General; and the
Governor-General having refused his support, this opinion,
remained without
effect.
This view, which made the Council, and not the Court, the final judge of the true interpretation of the provisions
of
the
Regulating Act, appears to
me an
outrageous
assertion of military power against law. It would have led straight to civil war in the streets of Calcutta, and
it is
to
be observed that the decision of the Court was
subject to appeal to the King in Council, whereas the act of the Council in refusing to submit to the iurisdiction of the Court was in its nature subject to no appeal at all .
Is it credible that
men
prepared to take sucli a responsibility as this
should, as alleged by Francis, have been actuated by abject terror they ordered Nuncomar's petition to be burnt
when
'It does not appear which
of
them
it
was.
136
[chap.
Impey's letter seems to
me
to set the ignorance
and
He goes violence of his opponents in a striking light. minutely through the facts, points out various instances
of
imjDroper conduct on
the
part
of
the
Committee
towards Commaul, observes that the defect in the return was not technical, but that the omission of the words
alleging a right to imprison without bail was intentional. If they had been inserted the return would have been
false,
as
Mr.
Cottrell,
the
President of the Revenue

cases, and " in cases perfect truth,
Council, said
"
that
bail
was taken in such
adds Tmpey with demands, nothing could be more unjust " and oppressive." The usual form of the bail bond was
it
had
not,"
"
of disputed
that the prisoner should appear before the
when he should be
Committee not
for a
called on.
Committee The Court required the

in
to imprison
Commaul
an arbitrary
disputed account, but to admit him to bail way to the usual practice and in the usual form, according " and not to require his appearance until endeavours had
"
"
been made, without
effect, to
recover the
money from
the under-tenant." This, said Impey, appeared, upon the best and most undoubted authority," to be the common course in cases in which an under-tenant had
"
been recognised
by the
revenue
authorities.
It
is
obviously the course which common sense would require. In the latter part of his letter Impey pointed out the principle on which the Court proceeded, and its applica-
The tion to the particular case, in the following words " which is most gentlemen do not make the distinction " obvious between claiming a jurisdiction over the original " cause, and preventing their ministers, under the colour
:
"
"
of
legal proceeding,
"
aggravated injustice.
from being guilty of the most This distinction, if attended to.
XI.]

of itself sufficient to clear
137
"
"
"
away everything that can the least alarm on the account of the interests of give the Company for the Court, allowing the custom and
is
;
" " "

"
usage of the collections to be the law of the country, have only compelled the officers of the Government to act conformable to those usages, and not to make use of the colour and forms of law to the oppression of the people. " No cause could be more pregnant with causes
of
"
"
suspicions
of
that
sort
than
the
present
to
the
prisoner
had
made
all
himself
obnoxious
several
"members
"
of the Council
by an înformation which he
"
" "
the judges on April 19th, in a matter in which the several members of the Council
exhibited before
were either
" " "

"
"
parties, or had much interested themselves. On the 24th the parties were bound over to prosecute. On May 1st the accountant laid the account before the
Committee, and peons were ordered to be

;
set
upon the
prisoner his vakeel (that is, his agent) was, without any colour of law, imprisoned for the same demand
" "
"
during the trial of the cause, in which he, Commaul, was the principal evidence. Immediately after the trial he was himself ordered into confinement, and for
that purpose the course of proceeding in the Committee was inverted. Before and during the trial the pretended
"
" "
"
claim of Government was used for the purpose of intimidation and after, for that of punishment and the
;
;
whole influence of Government

to justice."
is
now drawn down on
"this Court for not submitting to so manifest an outrage

"
Not long
1 -
after this
worth notice, because

Namely
No.
3,
it
another matter happened which is bears upon the relations between
his information against Nuncomar. See above, p. 79-80. end. 18, November 29th, 1775, Governor-General in Council
to East India
Company,
138

The production
[chap.
Impey and Hastings.
of certain public
documents in the possession of the Council ^Yas required in an action. The Council, by a majority consisting of Hastings, Monson, and Francis, refused to produce them, Barwell voting for their production and Clavering giving
no opinion. The secretary to the Council being called, Impey compelled him to disclose the names of the members of Council and their votes, and stated his
opinion that the individual members, who by their votes prevented the production of the papers, would render
themselves liable to an action.
The Council made strong
I think representations on this subject to the Company. the Court might well have modified the English law of evidence, as they seem to have understood it, to meet the
circumstances of India by accepting certified extracts, or by taking the oath of the secretary to Government as
on public grounds the disclosure of any particular paper was not expedient. This is the
sufficient proof that
modern English practice. The matter was not in

importance, though
;
it
servient to Hastings time with a ^ minute of the majority of the Council, which shows how matters stood between them in the
beofinninfj of 1776.
itself one of any great practical shows that Impey was not subbut it nearly coincided in point of
add in notes a few of the more
They are to be jjointed of Impey's criticisms on it. found in his ^ letter to the Secretary of State, Jan. 26th,
1776.
" " " "
The important part of the minute is as follows: In spite of numberless discouragements, our endeavours to serve the Company have not entirely miscarried
;
if
more shall be expected from us, the power and the means must be proportioned to the end considering
:
No.
3,
end.
5,
Jan. 15th, 1776.
Gen. App.
3,
end. 28.
XI.]
139
"
"
we meet with from every we are, in truth, unable to determine, whether any quarter,
the opposition and resistance
"
and what power is left to this government. If by our "authority as diwan confirmed to us by Parhament, a
"
"
"
farmer be confined for arrears of rent, the Supreme Court of Judicature take the cause out of our hands,
^decide upon the merits, and discharge the prisoner; if we dismiss the Judge Advocate, ^ he appKes to the " Supreme Court for a mandamus to reinstate him in his " office if we dismiss the secretary of our own board, " we see him ^ encouraged to bring an action for the salary " against his successor if we order a British subject to
"
;
;
"
repair to the Presidency, he pleads the protection of the " Supreme Court of Judicature, and declines or refuses to
"
obey us
if,
for reasons of
" "
importance, we endeavour
Snba,
the country government, we have not only the foreign factories, but the " Supreme Court of Judicature immediately to contend
"
the most serious political to support the authority of and the sovereignty of the
"
with
"
"
they publicly deny the existence of such a government, and affectedly hold out the person and
:
authority of the prince to the contempt of the world. " * According to the doctrines maintained by the judges, ^ "It is not true that the Court This is again the case of Commaul
:
Jiave decided
(Impey, No. 3, end. 28). ^ " It can hardly he imputed as a crime to the judges that an applica" tion is made to the Court. Had they been candid they would have " stated that the mandamus was refused, and on grounds which would " ever after The Court declared they prevent application of that nature. " " had not authority to gi'ant it (Impey, ubi supra).
^ "By whom do they see him encouraged ? Not by any judges of the " Court. It seems to be insinuated they will not assert they know it " not to be true " (Impey, ubi supra). * "These doctrines should; have been stated to avoid misrepresentation of what might drop from the bench, either through mistake or "intention." (Impey, ubi supra.) He goes on to sa}', "the Court has
;
on the merits
"
' '
140

is
[chap.
"
"
there
scarce
any act of government, however necesif it
sary or
expedient, which,
tends to control the
"
"
actions, or to thwart the interests, of individuals,
may
not expose the members of the Council to actions in the " Supreme Court we even doubt whether we are author;
"
ised to prevent
any person from quitting the provinces
" and going up the country, though we should be certain " of their intention to enter into the service of a foreis^n
"
power.
"
In these circumstances,
many useful and obvious
regulations, for the benefit of the
"
"
country must neces^ be left unattended. A general recoinage has sarily been repeatedly recommended to us by the Court of
Directors
:
" "
such a measure
;
is,
sably necessary
"
"
but
it is
of a nature too delicate
without doubt, indispenand
important, and likely to be attended with too many difficulties in the execution, to be undertaken with
safety
"
"Judicature.
" " "
by a divided government, with a hostile Court of .We could point out a number of other objects which would deserve our attention, and of abuse, which call upon us for redress but this is not a
;
season for a mere majority of a council to undertake " any measure for the public service, in which the learned
"
"
in the laws of
at.
^
England can discover anything to cavil While a standard is publicly hoisted against our
' '
"always sent to the Governor-General in Council copies of all judgments by which their powers or interests, or those of the Company, were " affected or in which they were alluded to." " 1 " ? What can the Court have to do with the
possibly
coinage
(Impey,
ubi supra.)
^ " AVhatever want of authority, the gentlemen may complain of, or " whatever the. effects of Mr. Haslings's conduct are to disarm them "of their powers, it must be understood that our cause is totally dis" connected with his. The Company and the nation must decide " between them and Mr. I can answer the declamatory part Hastings. "of this period (in which the run of the sentence has been evidently
XT.]
THE QUAREEL "WITH THE COUNCIL.
141
" "
authority, and every individual in the country invited to repair to it while protection is given to every man
;
denies or resists the authority of government and " while the Governor-General takes a willing and decided
;
"who
" "
part in every measure that tends to degrade the Council and disarm us of our lawful powers, we are not
"sanguine enough to expect that any efforts of ours " should be equal to the execution of the trusts reposed
"in
us.
We
cannot answer for the collection of the
"revenues, we cannot answer for the internal govern" ment of the country, nor for the safety of the State ;
still be exerted to preserve the the welfare of the country, until promote " the necessity or the expediency of a new arrangement " shall be determined at home but divested as we are
"
our utmost efforts shall

peace, and
to
"
'
"
"
"
we owe it to our safety and character to ourselves in the most solemn manner of all discharge
of
all
power,
responsibility."
This minute
its
is
extremely curious.
In the
first
place
vehemence is wholly unjustified by the points to which it refers. At the time when it was written, and down to the end of 1775, the questions, exclusive of Nuncomar's case, and the case of Commaul O Dien, which had arisen between the Court and the Council, were, so far as appears by the papers annexed to Touchet's petition, these, and no others
:
The suspension
of the various Calcutta Courts.
" more attended to than the truth of the facts) that the Court is open " to the That but suitors, none are invited, but all may fly for justice.
persons have applied for proteetion of the Court in any case in " which the authority of Government can on any pretence be asserted "to have been called in question. To Mr. Stewart that protection was "denied. To Commaul Dien it has been granted, and I hope your " " lordship will think on just principles (Impey, uhi supra). ^ No. 28, end. 1, April 11th, 1775.
"two
142
^
THE QUAREEL WITH THE COUNCIL,
[chap.
zemindar, one Choit Sing, had been sued in the High Court because, as his antagonist alleged, he was employed by the Company as a collector of revenue.
^The revenue debtors of Hurry Kishen Tagore had claimed a right to be sued in the Supreme Court only. As to the suspension of the Calcutta Courts, it seems
to
have been considered by

consequence
of
all
necessary
the
the parties concerned as a establishment of the
Supreme Court, and of the local original jurisdiction conferred upon it. As to the suits against one zemindar, and the refusal of
the revenue debtors of the other to be sued elsewhere
than in the Supreme Court, no case appears to have been brought before, or decided by, the Supreme Court on the
subject.
Besides these there were the cases of the

applied for
mandamus
and refused, and the action for salary. As to this, Impey says that it turned on the question whether the dismissal of the plaintiff was in accordance with the " the Court have instructions of the Company, and that declared that they will not try whether the "already " cause of dismission is good or not, the Court will never " permit the power of the Governor-General and Council " There was to dismiss to be discussed before them." at the time of the minute about also a case not decided the power of the Council to send to England one Pavasey,
a European foreigner.
It is clear, therefore, that the only cases of real import-
ance which drew forth this

responsibility for the
passionate disclaimer of government of the country were
those of
Nuncomar and Commaul O

spirit
Dien.
In the second place, the

1
which the minute shows

^
End.
7,
AprQ
21st, 1775.
End,
g^
^pî
28th.
XI.]

"
113
is
in itself remarkable.
is
The thought which throws the

that
majority into despair

"
according to the doctrines
"
" " "
is scarce any act of however necessary or expedient, which, if it government,
maintained by the judges," there
tends to control the actions or thwart the interests of individuals,
expose the members of the Council to This is a direct claim actions in the Supreme Court."
may not
of arbitrary power.
That the holders of the executive
authority, however highly placed, shall be liable to actions in an independent court of law, if they control the
actions,
or thwart the interests of individuals without
express legal warrant, and merely because they consider it "necessary or expedient," is a cardinal doctrine of
English law, and

of
is
the most practically important element
what we
It is also
call
freedom.
important to remark that the Council seem

distinction at all
between judgments given by and applications made to the Court. The the Court apparently simple j)roposition that a Court of Justice cannot refuse to hear and determine applications made to it, and that the judges have no discretion at all as to the causes which may be brought before it, was overlooked by the Council, and has been overlooked by many writers of later times. Up to the time when the Council reputo
draw no
diated responsibility for the government of the country, the Court had given no judgment, except one in favour of the Council, and one (in Commaul O Dien's case)
what they regarded as their rights, and they were blamed by the Council in each case, not for their judgments which they gave, but for their exercise of
against
their jurisdiction.
This is just one of those simple distinctions which excited partisans continually overlook.
144
[chap.
Having thus shown how the quarrel between the Court and the Council began, and the relation of the two
parties to each other, I shall proceed to sketch its progress. There were three distinct matters which came into
question at various times between the Court and enemies.
its
The first was the dispute between the Court and the Council as to the extent of the jurisdiction of the Court
Councils, the members of which then what would now be called the District Offirepresented cers, both in the judicial and in the revenue branches. The second concerned the jurisdiction which the Court
over the
local
was charged with claiming over zemindars as such. The third concerned the jurisdiction of the Court over the town of Calcutta, and this was a question not between the Court and the Council, but between the Court and
the European inhabitants of Bengal in general but in
particular of Calcutta. With respect to the first
and second branches of the
quarrel, a preliminary observation must be made, which The procedure in the mofussil applies equally to each.
in cases before the
Supreme Court was the
ordinar}-^
English procedure in civil actions at common law slightly modified, that is to say, a writ was issued and served, and
if
the defendant did not thereupon put in bail to answer
the action he was liable to be arrested, as the phrase was,
on mesne process," and imprisoned till his case was The only heard, which might be for many months.
into this by the rules of the was that an affidavit as to the fact which Supreme Court was said to make the defendant liable to the jurisdiction of the Court was required of the plaintiff, and the writ was not issued until by this means a prima facie csise had
"
modification introduced
XI.]

for its issue to the satisfaction
145
been made out
of one of
the judges of the Court. This law of arrest on
mesne process was beyond
all
question one of the worst and most oppressive points of the law of England as it stood, down almost to our own times. Its introduction into India was indefensible.
The
effect of it
was that on an
affidavit
sworn behind
be arrested at Dacca, for instance, or Patna, and brought to Calcutta, there to be imprisoned at a distance of many hundred miles from his home,
his back, a
man might
unless he could give bail for an action perhaps unjustly brought against him. Even if he pleaded to the jurisdiction,
his plea was allowed, he was jût to much inconvenience, and, at all events, he had to employ at a
and
great expense English attorneys and counsel. The existence of such a grievance as this is sufficient to account for a great amount of censure being thrown
upon the persons in whose name and by whose authority When a personi s wrongthe system was administered. arrested and imprisoned he does not usually describe fully
with justice the proceedings of the wrongdoer. Every illegal touch becomes a brutal aggravated assault inflicted with a malicious pleasure in the triumph of might over
right.
Every prison becomes a loathsome dungeon.
In
nearly every account of the matters in question it is " stated that the prisoners were dragged down to Calcutta," whereas, in fact, they seem to have been generally taken
in boats.
Another topic of prejudice introduced into

ject on this subject hereafter.
^
this sub-
is
the brutality of the
bailiffs.
But
I shall say
more
The
last vestiges of arrest
on mesne process
6).
vrere
not abolished
till
1869
(see
32
&
33 Vic.
c.
62,
s.
VOL. IL
146

the whole, I think
it
[chap.
Upon
clear that the arrest
on
mesne process was a serious grievance. Who, then, is to blame for its introduction into India ? The answer is, the authors of the Charter in which the
whole process is set out ^ in full detail. I think Impey must have been the draftsman of the Charter, but it was
by Lord Bathurst,Thurlow,Wedderburn, and others, and the blame to be attributed to them is that they shared the common opinion of their time as to English law that they erroneously regarded it as good for England, and
settled
;
made
for
the further mistake of supposing that, being good ^ The England, it was presumably good for India also.
Charter empowers the Court to frame rules of practice, and some blame is due to the Court for not having framed rules which would have prevented these abuses. Passing from these topics of prejudice to the legal merits of the dispute between the Court and the Council, the points which I have distinguished must be separately
considered.
The
first
Court was entitled
matter in dispute was whether the Supreme to interfere with the Company's
servants in their judicial capacity, and more especially in their capacity of collectors of the revenue. The law upon the subject was contained in ^two
sections of the Kegulating Act, the material parts which were as follows
:
of
Section 7 thus defines the powers of the Governor-
General in Council
"
'
The whole civil and military government of the said Presidency, and also the ordering, management, and government of all the territorial
:
"
^ 2 3
Morley's Digest, ii. 560, 561, clause xv. of the Charter. Ihid. V. 586, 587, ckuse xxxviii.
13 Geo. in.
c.
63, ss. 7
and
14.
XI.]
147
acquisitions and revenues of the kingdoms of Bengal, Behar, and Orissa shall be and hereby are vested " in the said Governor-General and Council in
" "
"
"
like
manner
to
all
intents and purposes whatever as
"
"
might have been exercised by the President and Council or Select Committee in the said kingdoms." Section 14 defines the extent of the jurisdiction of
"
:
the same
now
are or at any time heretofore
the Supreme Court
The Supreme Court
of Judicature
"thereby {i.e. by the Charter) to be estabhshed shall " have full power and authority to hear and determine
" "
"
"
"
" " " "
any of His Majesty's subjects any crimes, misdemeanours, or oppressions committed or to be committed and also to entertain, hear, and determine any suits or actions whatsoever against
all
comj)laints against
for
any of His Majesty's subjects in Bengal, Behar, and Orissa, and any suit, action, or complaint against any
person
who
shall at the
time when such debt or cause
of action
employed
" "
or complaint shall have arisen have been by or shall have been directly or indirectly
in the service of the said united
Company,
or of
any
of
His Majesty's
subjects."
The constructions put upon these sections by the Council and the Court respectively, so far as concerns the
position of the officers concerned in the collection of the revenues, were as follows
:
'
Both parties agreed that the 7th section conferred upon " the Council the " ordering, management, and* government of the revenue. That is to say, it was agreed that they
for the
alone had the right to take all the proceedings necessary collection of the revenue against the different
])ersons
by whom
it
was to be paid but there the agreement

;
ended.
T
148
THE QUAEREL WITH THE COUNCIL.

officers
[chap.
The Council maintained that their
were exempt
from the jurisdiction of the Court in respect of any acts done by them in connection with the collection of the
revenue.
The Court, on the other hand, maintained that
it
was
their duty to entertain actions brought against the officers for any irregular or oppressive acts with which they might
be charged in the execution ôf their duty, and that it was one of the principal objects of the Regulating Act that such actions should be freely brought against such
officers for
such
acts.
Two
to
of the judges, Lemaistre
Impey, restrained
and Hyde, were, according by himself and Chambers with the
greatest difficulty from going to the length of saying that the Regulating Act had transfen'ed all judicial power
from the revenue authorities to the Supreme Court. This last-mentioned view was, to my mind, not only practically
absurd, but was inconsistent with the concluding words of section 7, which say in substance that the Governor-
General and Council were to have the same poAvers as On the other hand, I think that the their predecessors.
view
finally asserted
and acted upon by the Supreme
Court, though in practice it turned out to be inconvenient, expressed the intention of the Act, and was in accordance
with
its
policy,
;
(oppression
but
oppressions to connection with the collection of the land revenue.
which was to protect the natives from notorious that the principal it was which they were subject were inflicted in
The
view of the statute taken by the Council would have rendered the Supreme Court powerless to interfere if a Provincial Council had extorted by torture sums alleged
to
be due as arrears of revenue.
The proposal
of the
majority to resist the orders of the Court to set
Commaul
XI.]
149
Dien at liberty on bail by habeas corpus, was caused by the denial of the Court of the right of the Council to commit him to prison arbitrarily without bail, for an arrear
which he disputed, and under circumstances which raised a strong suspicion that the whole proceeding was in bad faith.
The same principles were contended for by the Court and the Council respectively in reference to servants of
the
Company acting in their ordinary judicial capacity. This has been greatly misunderstood and misrepresented,
amongst other writers by James Mill, whose excessive dryness and severity of style produce an impression of accuracy and labour which a study of original authorities does not by any means confirm,
now proceed to illustrate these general remarks a reference to the principal cases in the decision of by
I will
which they were stated and developed. I will refer to them in the order of time, and will omit those which are
not specially characteristic. ^ The first case to be noticed
is one which appears to a strong light the weak side of the proceedthe parties to this famous quarrel. The Pro-
me
to set in
ings of all
vincial Council at
Burdwan, of which Mr.
Hiofofinson
was
the chief, dispossessed the Ranee of Burdwan from her position as guardian of the infant Rajah, and kept the
Ranee in confinement. Upon this informations were sworn against Higginson before Lemaistre, who, besides
issuing
summons
against
view private letter, which the judges of the Supreme Court took of their position, and the silly violence of Lemaistre's character.
illustrates
which
Higginson, wrote both the
him
Why
the Ranee was put under restraint does not apj)ear,

^
Touchet, Gen. Ajjp.
Nc
17.
150
[chap.
but the contrast between tbe view which has been taken
the judges of the Supreme Court as being bnital tyrants whose sole object was to extend their power by
nefarious devices and miserable technicalities, and their
of themselves as the chosen special protectors of the natives, could hardly be set in a stronger light. The letter is as follows
" "
of
own view
made to me against you on behalf of the Ranee of Burdwan, which appears to be of a very serious nature.
Sir
"
A complaint has been
"
" " " "
apprehend that the late Act of Parliament had particulai'ly in view to protect the natives of this country from all oppressions committed through
I
"
European influence. The Ranee, who appears to be the widow of one of the most ancient rajahs, and one of the first families in Bengal, is, it seems, with the Eajah
her infant son, kept in a state of inquietude and duresse by a military force under your orders and directions
;
"
" " "
and a man of the lowest
state of the people
is,
against
"
"
her consent, intruded upon her, introduced as a principal servant into her family, takes upon himself the
receipts
and disbursements of her
cash, threatens
and
"
"
even dismisses her servants at his pleasure, puts them under the custody of peons, and in every respect acts
contrary to the wishes and inclinations of the Ranee, who is thereby rendered not only no longer mistress of her own house, but obliged to take refuge in her most
" "
"
"
" "
inward apartments, and prevented (from the fears and apprehensions she is under) from performing her accus-
tomed
^
religious ceremonies.
'
Even her
private apart-
of the zenana is mentioned as a grievance in Macaulay is virtuously eloquent about it. The impression made on my mind is that it was a kind of pleader's flourish. violation
several
cases.
The
XI.]

all
151
are,
" " " "
ments (by
it
Europeans hitherto deemed sacred)

;
it
seems, not considered by you as an asylum and you, is sworn, have broke through that respect and decorum
which, according to
is
the customs and usages of this
"
and peculiarly country, to a person of such exalted rank. " I am told (and, indeed, I have seen it in writing) that " this is attempted to be justified by orders from Governto every person of her sex,
" "
"
due
"
"
" " "
With me it greatly aggravates the offence, since Government is as much under an obligation to be just as the lowest individual and more is to be allowed in defence of an individual who, actuated by the sudden impulse of his passions, commits an injury, than to him
ment.
;
who
the ready instrument to execute the orders of despotic power, a power which, give me leave to say,
is
" "
the Creator could never
mean
to delegate to
human
beings. " It is sworn to me, that the
Ranee
is
not indebted to
"the public revenues, except, perhaps, for the current " month, and that she is accused for no crime, and that
"
" "
neither your Sepoys nor your tormentor, Bahadur Sing, do claim to act under the process of any Court of Judicature.
"
If
any respect and regard,

ancient families
therefore, is to be paid to
" "
the
of this
country
if
the British
Act of Parliament, to legislature did mean, by the late " the natives I shall be glad to see by what protect
;
"
arguments
this
Government
will
attempt to
justify,
like the "assaulted
and beat," "broke and entered," and alia enormia The charges are made as well of old-fashioned English special pleading. in the cases where the High Court's interference was claimed as in those
in
which
it
constituted the grievance complained of

,
but
shall return
to this subject.
152
"
"
[chap.
Burdwan, a violation of
detestable,
if
against a person of such high rank as the Ranee of civil rights wliich would be
practised
"deemed
"
upon the
meanest
peasant in the
mother country.
of the peaceable enjoyment of a
"Every disturbance
is an enormous oppression, and "person's " while I stay in this country I will, to the utmost of my " power, give the same redress, and the same measure of
own house
"justice to the lowest of the people, which I hope to see " given to the Ranee upon this occasion, be the oppressor
" "
ever so great or powerful. regai'd for the interests of the East India Company, which might be affected by
members of one of their provincial Councils, prevents me from sending such a warrant as " the flagrancy of the case seems to require. Personal " respect and regard likewise to yourself induces me to
""an arrest of all the
"
"
"
" "
send only a summons, which I hope you will attend to without delay. But the insolent fellow, introduced into
the Ranee's family against her consent, I have sent a constable to apprehend.
"
"
I have svimmoned likewise the person who commands the Sepoys and I hope to hear, upon your aiTival at " Calcutta, that the Sepoys are withdrawn, and the Ranee
;
"
left at
hberty to do what, and go where, she pleases." In this case the judge of the Supreme Court appears in
His letter was a mischievous and rather ludicrous light. and in all ways unjustifiable, but he arrogant, foolish,
was acting
so far as the issue of the
summons went
well
within his legal rights. Higginson was unquestionably liable to the process, both civil and criminal, of the Supreme Court, and if he did illegally imprison the Ranee was intended by those who drew the Act to be
subject to such process.
XI.]
THE QUARKEL WITH THE COUNCIL.

^
153
The next
case to be noticed shows that there were
grievous scandals to be remedied amongst the provincial Councils, and that their complaints of the interference of
the
Court were much more natural than

is
justifiable.
This
Chund
the case of Seroop Chund's habeas corpus. Seroop was a malzamin or surety for the payment of
revenue, and also kazanchi or treasurer to the Dacca Council. In the first capacity he was reponsible for a
balance of Rs. 1U,U00.
In the second he was
liable for
balance of Rs. 66,745, with reference to which he acted as a sort of banker. In respect of the balance of revenue
peons had, according to the phrase then used, been "put upon him," making him a prisoner at large. There was some dispute about this, in the course of
which he was asked about his balance as treasurer, and it appeared on examination that he was unable to pay it over in cash to the Company's diwan at once, because he
had lent a considerable part of it to various servants of the Company, in particular Rs. 10,000 to Mr. Shakspeare, one of the members of the Dacca Council. ^ This, I think,
appears from his examination, though he in terms denied that the money lent was the Company's. The Board ordered him into confinement, Shakspeare, his thereupon debtor, being one of the Council which made the order.
Shakspeare denied the debt which Seroop Chund alleged, but admitted that there was some transaction between
them, that Seroop Chund had claimed the sum of him,
and that
he, Shakspeare,
had referred Seroop Chund
to
the Supreme Court.
Seroop Chund got a rule from the Supreme Court calling on the Council to show cause why a habeas corpus
should not be issued to liberate him.
1
The Company's
"'
Toucbet, Geu. App. Nos. 6-9.
No.
6.
154
[chap.
attorney, to whom the matter was referred, as appears by ^ his letter to the Governor-General and Council, showed
the judge (Hyde), " such part of the proceedings as I " thought were proper for him to see. I did not choose
"
"
" " "
to show him that part of the proceedings where the Board resolve to confine him for the balance remaining due to the Company as kazanchi or banker, it not being clear to me that they are authorised to do that, I could have wished that the ostensible reason for the confine-
"ment should be on account

"
of the Rs. 10,000
due
for
In other words, he kept back the truth and wished the Company's servants to give a false account
of the reasons of their conduct.
the revenue."
In an elaborate judgment on the
case,
which, however,
to
ended only
in.
allowing
Seroop Chund
give
bail,
Le Maistre re-stated the principles stated by Impey in the case of Commaul, As regarded the debt due from Seroop Chund as kazanchi, he pointed out that the matter in
dispute was a matter of contract as to which the Council ought not to be judges in their own cause, and ought
not to enforce what they regarded as being their rights by the arbitrary imprisonment of their debtor. There is a remark in this part of the judgment that a man " might as well say that he was commanded by the King " " of the Fairies as by the chief and provincial Council of Dacca, because that body was not a corporation known to the law. This James Mill censures. There is a
clumsy attempt at playfulness about it, no doubt, but the meaning appears to me clear and good sense. It is that when a person asserts a right to imprison another he must claim it either in his own name, or by some corporate or
official
^
name
recognised by the law.

No.
6.
That the
August
31st, 1777, enclosed in
XI.]

to English law illustration of
155
Provincial Councils had no definite character or position
known
was one
principal difficulty in of government in India, that no one except the Governor-
was an unquestionable truth. It what at that time was perhaps the carrying out any consistent scheme
General and Council and the Supreme Court, had any defined legal rights or position, and that it was impossible to
or any say that the Government had any legislative power been easy sort of effective substitute for it. It would have
for the
Supreme Court, had they
really
been factiously
have justified and acted upon the doctrine that no other court of justice except themselves existed in Bengal, Behar, or Orissa, and that the law of England
disposed, to
was
introduced
into
the
whole
country
and
not
a consimply to a certain extent into Calcutta. Such clusion would, of course, have been in practice a
monstrous and intolerable absurdity, but if Impey and his brethren had been mere professional pedants, incapable of looking beyond the words of the Regulating
Act, they might have found plausible technical grounds for asserting that such was the true interpretation of
the Act.
Before going on to the next case to be mentioned, I may refer shortly to Uwo remarkable papers which of Touchet's appear in the General Appendix to the report
Committee.
the report of Mr. Bogle, the Commissioner of Lawsuits, reported to the Calcutta Board of Revenue the observations which he had
The
first
in order of date
is
who
been led
1
to
make, upon an action
for false
imprisonment,
Lawsuits
No. 29, March 7th, 1779, Report of Bogle, the Commissioner of No. 21, minute by Mr. Shore (afterwards Lord Teignmouth),
;
March
26th, 1779.
156

Committee by a farmer
for
[chap.
against the
whom
they had
imprisoned
an arrear of revenue.
The defence was
that the plaintiff was security for the revenue which was in arrear, and this the Committee had to prove. When
they tried to prove the arrear they found it practically impossible to comply with the requisitions of the English
law of evidence, which did not accept their accounts as evidence of the matters alleged in them. The letter is
too long to quote, but the effect of it is that " as the " common and statute law of England has been formed
"
"
and modelled to the situation and manners, not of this distant and conquered province, but of a free and inde-
pendent people," the Revenue Councils are put at a great disadvantage when actions are brought against them.
"
They had been accustomed

in
to act in the unfettered
way
which native authorities had
acted,
and when
called
upon
to justify their conduct according to the
law of
England, found it practically impossible to do so. few days after the date of Mr. Bogle's report, Mr. Shore (afterwards Lord Teignmouth) recorded a minute
to
much the same effect. He was called upon to accept the charge of the Adalat, and begged to be excused, " because of his fear of " vexatious prosecutions in the
Supreme Court.
He
;
thus describes the- situation of the

"
judge of an adalat " forms his duty, the

"
" "
his office
The more effectually he permore he maintains the dignity of and enforces his decisions, the more he is
If,
liable to prosecution.
of
witnesses,
if,
he should
in procuring the attendance exercise any comj)ulsatory
" "
"
powers,
"
and groundless complaints and intrigue he should put in practice the discretionary powers with which he is invested by the public regulations of imposing a moderate
to restrain trivial
and
to detect chicane
XI.]

^
157
"
fine, or
inflicting a
"
"
" "
become subject
ruin."
this
. .
to a suit
mild corporal punishment, he may which may terminate in his

of
The mode
transacting
business in
so fundamentally different from that country " in England, and so contrary to the letter which prevails " and form of English laws, that scarce any transaction
is
by their standards will admit of a justification." The Governor-General and Council, however, called upon Mr. Shore to take up the duties which so much " alarmed him, observing, we are not acquainted with any
tried
"
"
"
instance which might serve as a foundation for the apprehensions expressed by Mr. Shore." They did not
like
any one, except themselves,
to take
up
their tone of
complaint.
Early in 1779 the hands of the Governor-General in Council were strengthened by the appointment of an
2
advocate-general. Sir John Day, He was called in legal matters.
who was
upon
to advise
them
to advise in a case
which had a singular result, and established an important Mr. This was the case of Dutt v. Hosea, principle. Hosea was the head of the Diwani Adalat at Moorshedabad, and was sued for alleged irregularities in the procedure followed against Gora Chund Dutt. The Advocate-
General thought he had been extremely irregular.

it
In a
as his opinion that, rather pretentious paper Day gave " though methods of procedure not a little repugnant to " those ideas of distributive justice that are familiar to
"the minds of Englishmen," might be reasonable in India, still, the line must be drawn somewhere, and
Hosea and
his colleagues
had gone beyond

as follows
:
it.
What
shocked him so
much was
?
A
^
sued B.
counterclaimed for a
*
much
larger sum,
4.
Dees
this include flogging
Touchet, Gen. App. No.
158
THE QUAREEL WITH THE COUNCIL.
[chap.
whereupon, shocking to relate, B was not only absolved from A's demand, but got judgment against A for a much larger sum than A had originally claimed from B.
On
this
Day remarks
"
:
Thus
far the irregularity of
"their proceeding upon the hearing which, upon the " ground of common sense and expediency, might " " (not, such seems to perhaps admit of a defence
be the suggestion, that that made much difference) " had it not been aggravated by the singular and " multiform means of satisfying the judgment to which
"they have resorted." They not only gave execution against body and goods, but they even attached A's outstanding debts to satisfy B's claim, and examined his books,
and, in short, conducted themselves in all respects as if by the spirit of prophecy they had known the provisions which about 100 years afterwards were to be inserted
into the English Judicature Acts
and the
rules in force
under them. Upon
this
view of the matter the Advocate-
General earnestly recommended a compromise, as he' felt sure that the Moorshedabad Council must lose their cause.
The Governor-General
take this advice.
"
"
in Council, however, refused to

said that "this
They
"instance in which the
member
of
was the first any Diwani court
their judicial characters," that to compromise the suit would weaken the authority of the " the suit ought to take its course for courts, and that
"
had been sued for acts done in
as individuals
in the
Supreme Court
"Diwani courts are or

"
the purpose of ascertaining by a legal decision whether the are not competent in their judicial
powers upon the principles of their own constitution."

reiterated
his opinion at great
The Advocate-General
The Council were length, and with much earnestness. and the case went to trial. The result was that firm,
XI.]

in favour of the defendants.
" "
159
judgment was given
The
chief justice said that in case of suits instituted before "the Provincial Councils, except in cases of manifest
" "
corruption, the Court will not enter into the regularity of the proceedings." He further said, " I do not think " it is the province of this Court to enter into the irregu_
"
larity of the Court's proceedings." This decision must, I should think,
have pleased every

the
one except Sir John Day.

principle
Justice,
It clearly established
that the
Provincial
Councils were Courts of
and that nothing would render their members
individually liable to actions for acts judicially done, " short of manifest corruption." Their irregularity, if it
existed,
would only be a cause
for appeal.
It is of
im-
portance
to bear this decision in
mind
in reference to
subsequent transactions, and especially to the Patna case^ which was ignorantly supposed to be at variance with it.
two significant incidents and expressions in the papers in the occurring general appendix may be
or
One
here mentioned.
In October, 1779, the Dacca Council were greatly disturbed in their minds by the appearance amongst them of John Doe, who was then still in his One prime.
Chundermonee demised
certain lands "in the
"
to
John Doe and
his
assigns
Purgunnah Bullera and province " of Bengal for a term of seven years, whereupon Henry
Robinson
"
(more generally known in England as Richard Roe, but he and Doe had many aliases) "put " out and removed the said John Doe from his possession,
(? term), yet to come " and into the said lands, whereupon George III. by the Grace of God, of Great Britain, France, and Ireland,
"
but John Doe recovered his time

of
"
Touchet, Gen. App. No. 14.
160
[chap.
King, Defender of the Faith, and so forth, commanded

the Sheriff of Calcutta to give John Doe possession. At this Mr. Shakspeare burst into fury, and, in language " which must have surprised John Doe, proposed that a
" " "
sezawul be appointed for the collections of Patparrah Talook, with directions to pay the same into the Bullera
cutcherry."
There
is
John Doe with sezawuls and
something grotesque in the confrontation of cutcherries, but the plain
English of the whole story was simply that lands of which the Sheriff of Calcutta gave possession to a successful plaintiff were put by the Provincial Council under
the charge of a receiver
who accounted
to
them
for the
proceeds. This was not only a denial of the jurisdiction of the High Court, but an actual interference with its process.
The difficulties of the introduction of English law into India are illustrated by the following passage in ^ a representation addressed to the khalsa or native exchequer, by " The inthe diwan for the zemindarry of Burdwan
:
" "
habitants of the interior country of Bengal are totally unacquainted with the forms and customs of the
" " "
English law, with the language and phrases of the English lawyers, and with the offices of sheriff and
other officers
When compulsion is English. in the Mofussil, they threaten offered to any person " with habeas coiytis and damages, but wdiat an habeas
who
are
all
"
what are damages, what warrants, what is, summonses, no one of them can tell." He afterwards " remarks quite dimply, It is a custom in Bengal, when" ^ ever the far mers, yetmaundars, and currumcherries
corpus
*'
"
.*'
(corruptly eahtimam, yetraaum, yetmaunee), care, superintendence, trust, responsibility. Ihtimamdar (yetmaundar), tlic holder " of a trust, the person charged with the realisation of a stipulated
No. 26. " Ihtimam
XI.]

failed in
161
discharging their revenue to exercise and enforce payment from them." This shows that one of the matters really at issue was
"severities
"have
upon
the power of the local authorities to " exercise severities " for the extortion of the revenue. The Supreme Court was
in fact the representative of ill-instructed English philanthropy, which was checked in its career only by the force
of misrepresentations against
I
its
agent.
pause here for a moment to give in a few words the effect of the decisions actually given by the judges of the Supreme Court up to 1779, so far as appears from the report of Touchet's Committee, upon
the question of the position and authority of the Company's servants who occupied judicial positions, especially in connection with the collection of the revenue, the
most important of
vincial Councils.
whom
It
were the members of the Prothis

:
The Courts established by were recognised as courts of justice, the Company judges of which were not liable to actions for their
the
judicial proceedings, even if they were irregular, unless they were corrupt. It had also been held that they had
was
a right to hold revenue debtors to bail for revenue debts,
them by putting peons on them or in was given to appear before the Diwani but that they had no right to imprison them withCourt, out bail, in order to secure the payment of what might
to confine
and
prison until bail
In other words, the ultimately be found to be due. Supreme Court did not allow the Revenue Courts to
imprison a
"revenue
man
without bail on mesne process.

;
As
far
for a certain district
also an agent or
"appointed by him to realise the revenue of an}"dari. A currumcherry (kharamchari) is an officer appointed 'by a "zemindar or payer of revenue to collect the revenues and arrange the " afl'airs of a a factor, a steward" (Wilson). village
;
deputy of the zemindar portion of the zemin-
VOL.
II.
162

was
all
[ch. xi.
as I can discover, this
that had been done in the
course of the
first
four years of the Court's existence,
and much though much jealousy, much apprehension, The differences between bad feeling had been aroused. the Court and the Council, however, culminated in several an account will be given in proceedings, of each of which
one of the following chapters.
CHAPTER XIL
THE PATNA CAUSE.
The
suit called the
Patna Cause was the subject of the
second article of impeachment against Impey, and amongst his enemies in India it excited a feeling against him
nearly as strong as the charge relating to Nuncomar, though it was not even suggested that he had any sort of personal or party interest in the matter.
The Report
of
of Touchet's
Committee contains an account
it, abridged from a mass of papers printed in what is called the Patna Appendix to the Report. They are
voluminous, and relate to an action brought in the Supreme Court against the native law officers a Cazi
and two Muftis of the Provincial Council at Patna. The action was tried by Impey, Chambers, and Hyde without a jury. The trial lasted ten days, and Impey delivered the judgment of himself and his brethren in
a speech the note of which fills forty-nine large folio Mr. Bogle, the Commissioner of law-suits to the pages.
Company, wrote the Governor-General and Council a

setting forth his view of the matter, which fills twenty-eight or twenty-nine such pages, and it appears
letter
from references made in these two documents that at
164
THE PATNA CAUSE.
[chap.
least fifty-five depositions of witnesses were made, and that a very large number of documents were exhibited on the occasion but neither the depositions nor the docu;
ments are
papers
are,
set out at length, so that,
voluminous as the
they are essentially incomplete. I have careI will fully gone through the whole of the appendix. only such an outline of the facts as is necessary to give
make
show what
the general nature of the case intelligible, and to light it throws upon the administration of
the
in justice in India outside the Presidency towns time of Warren Hastings.
The Patna Cause was an action brought in the Supreme Court by Naderah Begum against Behader
Beg, Cazi
Sahdee, Mufti Barrack-toolah, and
Mufti
Gholam Muckdoom. The plaint was for assault, battery, and imprisonment said to have extended over the period between the 31st of January and 1st August 1777, also for breaking and entering the plantiff's house and carrying off her property to the value of R.600,000. Behader Beg pleaded to the jurisdiction, but on this plea judgment was given
against him. All the defendants pleaded not guilty, and they also gave notice of facts of which they proposed to give evidence in justification of what
they had done.
Behader Beg's proposed justification that in the matters complained of he was, in substance, acted only as a suitor, and the other three defendants
said that they acted only as ministers
and
officers
of a
court of justice.
which the action arose were these Shabaz Beg Khan was a native of Cabul who came He became into India to seek his fortune as a soldier. settled at Patna, married late in life Naderah very rich,
The
facts out of
Begum, the
plaintiff,
and had no other
wife.
He
died
XII.]
THE PATNA CAUSE.

1
105
on the
"
December, 1776, leaving very great property behind him, and his widow in possession of it." Some time before his death he brought up from Cabul a
10th
"
nephew, Behader Beg, the son of his brother. And it was stated, though not proved, that he had expressed his
intention to
make
this
man
his heir.
There was
also
living in his house another
nephew, Cojah Zekereah, the
son of one of his
sisters.
death of Shabaz Beg Khan, his widow, Naderah Begum, remained in possession of his property, but Behader Beg, within three weeks of his death, presented a petition to the Patna Council endorsed by their " officer 2nd January, 1777."
On the
The petition said that the petitioner was the adopted son of the deceased, that the widow had embezzled some of the deceased's goods, and prayed that guards might
be set to protect the property, and that the Council would order the Cazi to ascertain the petitioner's right, "and
"
"
{i.e. to the Council) give information to the Presence that your petitioner may obtain his right." It made
"
no
definite,
distinct
claim.
The Council ^thereupon

to
issued an
order to
the Cazi and Muftis
take an
inventory of the property, secure it until the time of the decision and division, and to transmit to the Council a written report " according to ascertained facts and legal
"justice."
in his judgment. Mr. Bogle says it was in November. Their order or perwanah obviously refers to the petition, but is dated (in the copy set out in Mr. Bogle's letter) in this singular way " Written the 2nd January, 1777, English style [then follows the native
:
So says Impey
December, 1777, Simeon Droz." This is obviously wrong, On between January 31st and June, 1777. the other hand, 2nd December, 1776, cannot be meant, for the petition must have preceded the order upon it.
date], Patna, 2
as all the proceedings were
166
THE PATNA CAUSE.
[chap.
remarkable proof of the looseness with which business of this kind was then conducted, that this proceeding seems to have been entirely ex parte and without
It is a
notice to the
widow or any one on her behalf. The Cazi and the Muftis went to the house, and
difficulty
after
a great deal of
and some dispute as to the of Cojah Zekereah as attorney for the widow appointment (an appointment alleged by the defendants and denied
by the
plaintiff to
it
house and locked
have been duly made), got into the up and sealed some of the doors. A
few days
property.
after
It
was
they returned and made an inventory of the said that on this occasion they behaved
force very roughly, compelling the plaintiff by threats of at last she took to leave one room after another, until refuge in a filthy outhouse open to a common bazaar.
After undergoing, as was said, some other indignities, she retired into the durgah of Shah Azum, which was inhabited by Fakeers, who gave her hospitality.
'
Patna guard was set upon her by the Council at intimidate her to give up the slave-women, " remained at this papers, and seal of the deceased." She
2
"
to
At first the place under restraint for about three months. the Fakeers to give her food, guards would not even allow
^
" Dargau-dtjegaha
" "
'
to a
Mohammedan
royal court. In India it is more usually applied shrine or the tomb of some reputed holy person, and
Mr. Law says: 6. incurring censure by acts of violence, however "sanctified by the opinion of the Mussulman law-oiiicers. Necessary coercive measures of Government easily aciiuire the name of oppression ;
'
the object of worship and pilgrimage" (Wilson). 2 Letter of Mr. Law to Hastings. Patna, App.
are cautious of
We
'
'
the passions of the woman urge her to any act of despera" tion " and [he was obviously afraid she would kill herself], "the effect "not the cause would be principally considered, and the bloody scene painted with a thousand exaggerations by the prejudices of the
"and should
"natives."
XII.]
THE PATNA CAUSE.

;
167
and they did so secretly but the strictness was afterwards somewhat relaxed.
of the guard
In the meanwhile (the exact date does not appear) the Cazi and Muftis held an inquiry, and sent in a ^report which must have been delivered before January 20th,
^ 1777, because on that day an order upon by Mr. Droz, one of the Patna Coancil.
it
was signed
deliver
The
"
"
report begins
The Cazi and Muftis now
in the following report, on the right of inheritance claimed " by the widow and nephew of Shabaz Beg Khan, in
"
his estate
and other property." And they described them-
selves as having been " apj)ointed in an inquiry relative " to the right of inheritance claimed respectively by the " widow and nephew." This was certainly not the fact ;
they had been appointed only to take an inventory of
and lock up goods under seal, and report which was an entirely different thing.
to the Council,
report states for the first time the nature of the It says that the defendant, Behader Beg, claimed the property as the adopted son of Shabaz Beg. That the
dispute.
The
widow claimed under a

deceased.
will
and deed of
gift
made by
the
forged. " elusive of the

"
that the will and deed of gift were both It then recommends that the property, "ex^
And
Altamgha which does not form part

"
of
the inheritance
should be divided into four shares, of
which three should go to Behader Beg, " his father being " the legal heir of the deceased and himself the adopted " son," and the fourth to the widow.
Patna, App. No. 2. Exhibit, printed in Boyle's letter, Patna, App. No. 18. ^ '* Altamgha (from the Turkish al red and tamghd, a stamp or impression), a royal grant under the seal of some of the former native princes of
^
1
title to
Hindostan, and recognised by the British Government as conferring a rent free land in perpetuity, hereditary and transferable" (Wilson).
168
THE PATNA CAUSE.

this the
[chap.
Upon
Court at Patna ordered the Cazi and
Muftis to divide the inheritance according to the report, but in favour of the widow they ordered that Behader
Beg should pay her a quarter of the income of the Altamgha lands, which had been reported by the Cazi
and Muftis as excluded from the inheritance. Some sort of division was accordingly made, and it seems that Cojah Zekereah was told that he could take the
part allotted to
Naderah Begum.
He
refused to do
so.
There was much controversy, into which it is needless to enter, as to the circumstances of this division, and as to
Cojah Zekereah's proceedings in relation to it. The only point worth noticing as to this part of the case is that very early in the proceedings Cojah Zekereah was arrested
for the forgery of
one or both of the documents produced
by him.
whole matter was that Naderah was expelled from the house in which she was Begum
The
result of the
with considerable indignity, deprived of the possession of the whole of the property which had belonged to her husband, and declared to be entitled to one-fourth of it only, the deeds on which she claimed the
living, treated
for
whole being alleged to be forged. These were the wrongs which she brought her action.
point which arose was as to the Court's jurisdicBehader Beg. ^ Evidence was given which, as the whole Court considered, showed that he was the
first
The
tion over
'^
farmer of the revenue of certain villages in Behar.

1
"
"
Patna, App. Nos. 8, 9, 10. By the word fanner in the Hindostan language
' '
is
meant Izardai',"
Patna, App. No. 8. Ijaka, corruptly Izara, &e., price, protit, especially employed to denote a lease or fiirm of land, held at a defined rent or
revenue, whether from Government direct or from an intermediate payer of the public revenue. Jjaradar, a farmer of any item of public revenue,
"
XII.]
THE PATNA CAUSE.

they ought to have
regarded
169
Possibly
security for the actual farmer.
him only However that may
as
be,
held that he was regarding him as farmer, they all " a subject of the jurisdiction of the Court, as being di" or indirectly in the service of the East India
rectly
"
Company." Impey put his view of the matter broadly and plainly thus: "The person authorised by Govern" ment to collect the revenues of Government, whether he
"
"
is
" "
employed by the name of collector who to Government for the sum he receives over and above the stipulated sum he is ordered to raise, and receives
'
'
is
answerable
"
a monthly salary as a compensation for his trouble or revenues for a by the name of farmer who rents the
;
'
'
"
to Government "stipulated price which he is to pay within the Act of Parliament and the Charter, .... is, " a subject of the jurisdiction of the Court, as being a " or indirectly in the person employed by, or directly " service of, the East India Company and, if this be not " and the case, simply changing the name of the officer
;
by
"
" "
paying for his trouble in a different mode, every salutary intended to remedy provision of the Act of Parliament and extortions in the collecting of the
oppression
"
"
"
"
revenue would be evaded." He added, I now declare, what I have frequently declared from this place, that in England to oppressions and extortions represented
"
"
" "
have been exercised by the officers of the collections, whether truly or falsely, were, as I have ever underthis stood, one principal reason for the establishment of
Court."
Chambers, though he agreed with Impey in the main and as to the particular case, pointed out that a mere
whether from land customs or any other source
or estate at a stipulated rate
"
;
the renter of a village
("Wilson).
170
THE PATNA CAUSE.
[chap.
zemindar, the holder of land subject to the payment of revenue, was in a different position from a farmer, and
that a farmer
who
represented a zemindar would not be
subject to the jurisdiction. To this his assent. Hyde also agreed.
viewlmpey expressed
*
as he
first case in which the liability of a farmer, J was then called, to the jurisdiction of the Supreme Court was affirmed. Whatever may be thought of the
This was the
policy of the statute I do not see any answer to Impey's argument as to its meaning. What persons directly or indirectly in the service of the Company could it have been intended to bring under the provisions of the Regulating Act as to the Supreme Court if those who were em-
ployed in the collection of the revenue were not to be so included ?
set
The next point to be noticed is as to the justification up by the defendants for their conduct. Substantially
^Behader Bag's
justification was that he was only a that the other defendants were officers of justice, litigant, and that all he did was to take what they gave him.
justification therefore depended upon theirs. The substance of the ^justification of the Cazi and Muftis must be stated a little more fully. Put simply, and divested of surplusage, it came to this,
His
that the Provincial Councils were courts of justice before the Regulating Act and that also before the Regulating
;
Act they were attended by cazis and muftis to whom suits between Mohammedans used to be referred; that upon such reference the cazis and muftis used to hear the parties, or their vakeels, and the evidence on both sides, and to make a report to the Court, whereupon the Court
made a
^
decree, subject to an appeal to the President and

Patna, App. No. 12.
-
Patna, App. No. 13.
XII.]
THE PATNA CAUSE.

This arrangement had been
171
Council.
known
to
and sanc-
tioned by the Governor-General in Council, who had under the Regulating Act the powers necessary for that purpose.
was a cause between Mohamhad been referred to the defendants as All the acts complained of were acts cazi and muftis. done by them as such cazi and muftis in the discharge
The cause
medans.
in question
It
of their duty. These notices of justification
were notices of the

to prove
facts
which the party who gave them meant by way of This was an advantage to the justifying his conduct. facts parties, because if the Court was of opinion that the
alleged would, if proved, constitute a justification, the effect of this would be, in many cases, to put a summary end to
the action, because,
if
the facts relied on were notoriously
capable of being proved, and were pronounced by the Court to amount to a justification if proved, there would be no use in incurring the expense of proving them. On
the other hand,
if the Court thought that the facts stated even if proved, amount to a justification, the not, parties would be saved from the expense and trouble of
would
proving their case. Upon the notice of justification given by the Cazi Of these and the Muftis, eight objections were made.
Impey considered that seven ought to be overruled but, as the other members of the Court were not prepared
;
to agree with him, the result was that on these points the Court delivered no judgment. It was the unanimous
opinion of all the judges that the eighth objection was the right of the defendants to give in evidence the facts on which they relied, because, if true, they would
fatal to
form no justification of the conduct which they were alleged by the plaintiff to have pursued.
172
THE PATNA CAUSE.

eiglitli
it
:
[chap.
The
"
"
That
objection was in these words appears on the face of the notice that the
"
"
It is set forth that the proceedings were illegal. had nominated and appointed President and Council certain members to sit as a court, and to hear
"
"
and determine actions and
suits
but
it
is
stated
not that they heard the action and suit in the present " instance, but that they referred it to the Cazi and " Muftis, who in fact tried the cause and delivered in a
" "
report to the Court, who thereupon gave judgment and it was evident that these members, possessing " only a delegated authority to try causes, could not
;
"
"
delegate it to others, because it is an allowed maxim of " the law of England 'delegatus non potest delegare.'
is too long to quote, but in a very few words. It sets in various points of view, and illustrates in different ways, the conclusion which the Court drew from the terms of
The judgment on
it
this
matter
the essence of
may be put
the notice of justification, which was that the Provincial Council at Patna had become a merely nominal Court, and that it had allowed its native law officers substantially to
usurp its jurisdiction, and this, they say, was manifestly and Radically illegal. It was as if an English Judge of
Assize
over the causes which he ought to try himself to be tried by the Associate, or as if a County Court Judge
made
made
over his cases to his Registrar.
In this I think they
were perfectly right. Of course the Patna Council had every right to make use of the services of their law officers,
moreover, though the contrary has been asserted, there is nothing in the judgment to show that the Supreme Court
would have disapproved of their being employed, if such were the practice of the Council, in such duties as were discharged by the masters in equity and other officers of
XII.]
THE PATNA CAUSE.
173
the Supreme Court, and by the masters in chancery and the analogous officers in the Superior Courts of common law in England. What the Supreme Court decided was
that the Patna Council had no right to make over to the Cazi and the Muftis the actual decision of the impossible to deny that that they were right. I think, on the other hand, have explained more clearly than they did might
cause
itself.
So
far, I
think,
it is
they the limited extent to which their judgment rested on the
maxim
kind
"
delegatus non potest delegare."
'
Maxims
of that
my opinion, seldom useful, and are liable to be misunderstood. In this particular case the reference to the maxim, which was made first by the plaintiff's counsel, Mr. Tilghman, and not by the Court, gave a handle
are, in
to gross misrepresentations and to much ignorant misunderstanding of the judgment of the Court.
As the defendants said they wished to carry the case to an appeal, the Court allowed them to give evidence of the matters stated in their notice of justification,
to.
notwithstanding the interlocutory judgment just referred trial accordingly took place on the whole case,
which lasted ten days, and on which Impey delivered a judgment in which Chambers and Hyde seem to have agreed, to which I have already referred. It is extremely long, but the conclusions at which it
arrives
may be
first
stated shortly.
In the
plaintiff.
place
Impey
states the grievances of the
then passes to the justification, upon which he observes, first, that, even if it were proved and were good in law, it would not cover the grievances proved,
except the taking of the goods.
^
He
The plaintiff would thus

my
History of the
See some observations of

vol.
ii.
mine on
this subject in
Criminal Law,
p. 94, note.
174
THE PATNA CAUSE.
[chap.
to
be entitled to damages for the various personal indignities which she had been exposed. In the second place Impey points out that, whatever
value in point of law, the justification was in point of fact. There was no evidence given not proved either as to the institution of the Court, as to its con-
might be
its
stitution, or as to its rules of practice
being such as was
alleged by the defendants. As to this, it is to be observed that the plaintiffs appear to have insisted on the application of the strict rules of
evidence to the proof of matters {e.g. the original institution of the Patna Council, and some other matters), which
the defendants expected would be conceded to them. It also appears that for some reason or other the defendants
legal evidence on some of these points, although they had the papers in Court. It would, however, take too long to go fully into these
would not produce the proper
topics.
In the third
place,
Impey pointed out
that there was
no proof whatever that the Patna Council had given any previous sanction to the course taken by the Cazi and The proof was that when ordered to make the Muftis.
inventory and secure the goods those officers proceeded It might have been (after a fashion) to try the cause. that there were some vague expressions in the added
perwanah which might bear a wider interpretation. In the fourth place it was pointed out that, whereas the report which the Cazi and Muftis made, and which was the ground of the order under which the property was said to have been distributed, awarded onefourth part of the property to the plaintiff, it had never been returned or tendered to her. The plaintiff,
therefore,
was
at
all
events
entitled
to
recover
XII.]
THE PATNA CAUSE.
175
tlie value of that part, together with compensation for the vario^^s insults and other ^ ill-usage to which she
had been subjected.

arose
:
Was
At this point a further question she or not entitled to the value of the
rest of the property taken, and was the injury done by the ill-usage to be assessed as for a mere ignorant mistake on the part of the defendants, or as for a wanton,
wilfully
These two questions were connected together in this way the plaintiff clearly was not entitled to recover back wh.at could be shown not to be her property, though, even if the property was not hers, she would be entitled to some small damages for its beinoillegal
outrage
taken out of her possession by a mere trespasser, in which light the Cazi and Muftis were regarded. Now if the deeds under which the property was claimed were
had no title to the three-quarters of the property awarded to the defendant Behader Beg. Hence it was material to inquire whether the deeds were really forged, as the report of the law officers found, and this finding also affected the damages to be awarded for their
forgeries, she
conduct, for the examination of their report might show
how
they were acting in good faith and how far were committing an act of wicked and shameful they
far
oppression.
these questions Impey's judgment goes at great length into an examination of the report and of the evidence given at the trial in the Supreme Court
as to the forgery of the
1
To determine
two deeds under which the widow

at the
The Court thought that the imprisonmeut
monument was
The members
the act not of the defendants but of the Patna Council.

of
it
were afterwards sued separately for this and Es. 15,000 damages were given against them. The imprisonment was clearly illegal, and Law's
letter
to
Hastings already quoted shows that he was aware of
its
illegality.
176
THE PATNA CAUSE.
[chap.
The interest of this matter has so completely that I have only looked over it cursorily and passed have not studied it. Impey and the rest of the Court
claimed.
arrived at the conclusion that the deeds were genuine
and that the report was "unjust and absurd," some of the most important statements made in it being
wilfully false. on this head
"
The
"
:
following short extract

it
is sufficient
Had
marks on
"
"
"
and ignorance we should lament cause of this consequence, but that the vast property of the inhabitants of the rich and opulent province
of
only of folly not only that a

it
Behar should be subjected

is
to
the judgment of
"
such weak men, but we fear that we shall be obliged

delivered
"
to deplore that it "violence of wicked,

"
over to rapine
and
he
"
says,
inhuman oppressors." ^ Elsewhere That widows who from their sex (more especially
"
^ any rank) have been by black officers attending these Courts thought proper objects of rapine " " and violence we have had before proved to us and
if
of
he
refers to another case. Mr. Bogle, in his letter to the Governor-General and
He added
this remark, to
article of impeachment against
which a prominent place was given in the " That they should be mean, weak, him
:
"
rough judge whose salary was nearly sixty-seven times as large (8,000 a year is equal to Rs. 6666 10a. 8p. per calendar month, taking the rupee at If Impey had said that it was not 2s.), but in substauce it was true. should be so right that persons intrusted with such extensive powers wretchedly paid, especially in a country where judicial corruption was
notoriously
2
of the principal ignorant and corrupt, is not surprising when the salary The remark is "judge, the Cazi, does not exceed Rs.lOO per month." and harsh. It is also invidious and vulgar in the mouth of a
common, no one could have objected to what he said. The expression "black officer" has been censured as rude. I see no more rudeness in calling a man black than in calling him white if the Natives often speak of themselves as black and some natives fact is so.
;
as
"red"
or "wheat-coloured."
XII.]
THE PATNA CAUSE.
177
Council, without exactly controverting Impey, gives his view of the mattfer and in particular gives many reasons
for
thinking that the deeds were forged and that the report of the Cazi and Muftis was not only made in good
faith
I
hut was actually true.
have not studied the matter enough to give any opinion on the subject. Strong observations arise on both sides.
Impey's view of the matter was that the proceedings of Behader Beg was one of gross oppression and plunder of a helpless widow, effected by the false accusations of an innocent man for forgery. The view taken by Mr. Law
of the Patna Council in a letter to Hastings was that the struggle was in fact between Zekereah and others
on the one
side,
and Behader Beg (he

for the
calls
him Khan)
charge of the widow and the " of the estate, and this is ever the case where possession " the widow has a claim to any considerable inheritance."
on the other,
"
Be
this
plaintiff,
may, the Court gave judgment for the assessing the damages on the principle that she
as
it
had been deprived of property in her possession to which she was not shown not to be entitled, by an act corrupt and oppressive in its essence and executed in a way needThe damages were three lessly brutal and offensive.
lakhs of rupees.
Some
points
seem
clear
first,
that the
widow was
treated with great harshness and underwent great inSecondly, that she never got even the quarter dignities.
of the property assigned to her. Thirdly, that whether it was made in good faith or not, the report of the Cazi and Muftis was to the last degree weak and poor and,
;
lastly,
Patna Council were guilty of a gross desertion of duty in this particular case, and that the
that the
if
proceedings, VOL. II.
they established
nothing
else,
proved
178
THE PATNA CAUSE.

if
[chap.
beyond question that

specimen of the
rest,
the Patna Council was a fair
the Provincial Councils, considered as Courts of Justice, were absolutely worthless and that no system for the administration of justice which deserved Some of the name existed at that time out of Calcutta.
these points are of general interest. The report made by the Cazi and Muftis shows that those
of
who made
is
it
had not the most elementary notions
what
fact.
It does not
required for the investigation of matters of appear that they held any proceedings
trial.
in the nature of a
They
ascertained
the most
important facts in the case by statements made in casual ^ conversation, not even upon oath, and in some instances
by AVriting notes to which verbal answers were sent back by the persons regarded as witnesses. Irapey observed
with justice that they accepted the bare statement of the " applaintiff Behader Beg as proof of his claim, because it
"
peared clear and explicit without having any evidence at all about it. The report indeed betrays such an absolute unconsciousness of what we should regard as the plainest
dictates of
"
give
me
sense on the subject of evidence as to an impression of innocence and good faith.
common
That the Patna Council was guilty of a gross desertion of duty in this case is proved by a letter addressed to them by Warren Hastings, who certainly had no leaning
to the "
Supreme Court
in
this
matter.
He
^says,
"I
cannot but take notice of great irregularity in the pro" ceedings of the law officers, whose business was solely
'^
Dien, E.g.," Notes were thus sent by us to Syud Ahmed, Mir Amir and Malcolm. The bearer of the first returned with a verbal answer from Mir Amir Dien acquainting us that he did not affix his seal to the
papers alleged to." 2 Hastings to Council at Patna, 12th January, 1778
Patna App.
No.
7.
XII.]
''
THE PATNA CAUSE.

have declared the laws.
179
to
The Diwani Court was
to
"judge of the facts; their" (i.e. the Cazis and Muftis) " taking on themselves to examine witnesses was entirely " foreign to their duty they should have been examined
;
This is in substance what the " Supreme Court meant by what it said about Delegatus ^ non potest delegare." Even Francis thought at first that the Patna Council had delegated their authority, though on
before the
"
Adalat."
further information he changed his mind. These matters are of much interest from the light which the proceedings incidentally throw upon the
way
in
which the Provincial Councils carried on their

It is obvious to
judicial duties.
make
sort
over
all
cases
of the
that they did in fact sort in question to the
me
Mahommedan law
of colourable
officers,
who, notwithstanding some appearance of superintendence, did
substantially decide these cases, and that practically in The reading and confirmation of the the last resort. was obviously a mere form. report
The report produced to the Supreme Court was itself a most suspicious document. Impey said that various " makes [make] us shrewdly suspect that this matters " identical report never had existence till it was fabricated
"
for the
members
of the
purpose of this cause." Though one of the Patna Council, swore that in such cases it
was the common course to refer causes to the law officers, to record their reports, and to forward them to the Governor-General in Council, no other report one appeared in the book which contained
except
it
this
and which
covered the proceedings of six months. The report itself purported to be a translation of a Persian original, but
the
name
^
of the translator
First Report
Reports
was not given, the

of
original
Committees,
v. 391.
N 2
180
.THE PATNA CAUSE.
[chap.
Avas not produced,
and the translation bore marks of being not the translation of a Persian document, but the account given by an Englishman of a statement by a native-
The
in
writer of the report constantly uses the word will speaking of the deeds under which the plaintiff
"
"
claimed.
They would not have been
so
described in
a Persian report drawn up by Mahommedan lawyers. Impey calls them the ^"Hebenamah" and "Ekrauram,"
" "
" " "
" " No Persian adding that a will would be Wossayut." translator could have construed Hebenamah into will
'
'
and Ekrauram into deed of

'
selves
gift from the words themno Cazi or Muftis could have given that exImpey adds, "It is strange to planation of them."
;
'
"
"
observe that these gentleman of Patna who sit in two in one a Council of Revenue and of State, capacities
"
no separate separate departments, nor make any " memorandums in their books, in which all their pro" ceedings are confounded when they sit as a Council
in the other as a
for their
Court of Justice
keep
books
"
of
Revenue and when
as a Court of Justice,
and their
books are their only records of causes. I believe we " might almost say this is the only cause entered in the
"
"
book."
The Court
that Mr.
^
of
Appeal appears
"
to
have been as
little
of a
reality as the Court of First Instance.
Impey
observes
"HiBA
In
Young
says that that was an appeal to the

g;ift,
law a perfect
one accompanied by
deliver}'-
and
Ikrar. acceptance. ^rJdreama. A deed of gift" (Wilson, 207, 1). In law the acknowledgment or admission of a right or claim, as of a debt.
"
Ekraraum. Tkrdr-i-ddm, corruptly, public acknowledgment, He adds indeed as one of declaration, or confession." (Wilson, 215, 2). the meanings of Ikrar-i-aam,"a Avill or testament," but it is the Hiba" " " Wazi, nama, not the Ikrar-i-aam, which is called will in the report. a testator, one who commands, recommends, or bequeaths anything.
Waziat.
In law a will or testament" (Wilson, 556,
2).
XII.]
THE PATNA CAUSE.
181
"
"
Governor-General and Council in the Sudder Diwani
Adalat, and that the proceedings of the Provincial " Council are regularly transmitted by the Governor" General and Council ; but Mr. Young gives no instance
"
"
of any appeal, and I doubt the fact of there having been any since the establishment of the new Government.
"
" "
tinned
The Sudder Diwani Adalat was abolished in ^ 177-, and it is well-known
or discon-
that
the
"
"
"
Governor-General and Council never sat in that Court, and we never heard of any Court of Appeal being
instituted in its
period."
room
in fact, there has not since that

is
The
result of all this
that the Provincial
Councils had practically and substantially made over their functions to the Cazis and Muftis, and that the
body which professed
to be a
Court of Appeal never
Thus the
result of the
Patna Cause was to prove that
the so-called English Courts were really and substantially not Courts at all, and that they had given up their
powers to native judges, from whom there was no appeal. The Supreme Court decided in substance that this was
and that in the particular case the native judges had acted corruptly and oppressively and without jurisillegal,
diction.
The strongest and most explicit confirmation of part of this view is to be found in Mr, Bogle's letter to the Governor-General in Council. He says in substance you
must
^
either have native judges or none.
After saying that
minute already referred
In the India Office copy 5 is added apparently in pencil. In a to, dated 11th April, 1775, the majority of the Council say "the Supreme Council have for some months past declined
their jurisdiction Ajip. 3, enc. 1),
taking cognizance of appeals, in the apprehension that the legality of " might be disputed by the Supreme Court ^General
182
THE PATNA CAUSE.

^
[chap.
"
the provinces contain most probably, " million inhabitants," he says " The
:
ten or twelve
of
number
" "
Eng-
lishmen
"
"
now employed in carrying on the Civil Government over so many people is probably not above
200 or 300, a very large proportion of these are and
must be engaged in different offices at the Presidency, " and the greatest part of the remainder are taken up in " collecting a revenue of 3,000,000, and in providing an
" " "
investment
for remitting the surplus revenue to England without which these provinces would not be worth
"
"
keeping. The number therefore of Englishmen qualified "for the administration of justice, who could be appointed " to that duty does perhaps not exceed twenty or thirty.
If the numerous disputes that arise among so many millions of people were to be tried and decided only " by these twenty or thirty Englishmen it would be im" possible to carry on the government of the country."
then goes on to say that the regulations under which the Provincial Courts are established " direct
that they hear the parties viva voce, and if necessary examine evidence," but he adds as the regulations do not prescribe the mode in which the evidence is to be " taken, The Council at Patna had a right to refer the
"
"
He
"
examination
"
so),
of
the
evidence
is
in
the
cause"
(the}^
never did
"
which indeed
as the cause
itself,
virtually the same thing to the Cazi and Muftis."
In short the Provincial Councils were mere names, and had a right to make over business which they were
incompetent to perform, though they had accepted the task of performing it, to the only people who could even
pretend to perform
^
it.
Bengal was found at the census of 1881
to contain 66,530,127 iuliabit-
ants (JFhitakcr's Almaiiack),
XII.]
THE PATNA CAUSE.
183
Such was the famous Patna Cause. Its importance must not be estimated by the history which I have given of it, and which no doubt is tedious. It produced
a perfect storm of indignation, not only in India, but in England, and this is not surprising. The decision that
jurisdiction of the
Behader Beg was as an ijaradar or farmer, subject to the Supreme Court, was declared to have
produced a panic amongst the renters of the province of Behar. Shortly after the judgment of the Court was delivered they sent ^ a petition to the Patna Council, in
which they asked that they might be allowed to give up

their farms and retire with their families to
some other
country, rather than be subject to the jurisdiction of the Supreme Court. The petition is signed by thirty-nine persons, who would form no doubt a large proportion ot
the renters of the whole province. How far the Patna Council who forwarded their petition procured it, it is
impossible to say.
The
principal point in the petition
is
"that "the Zemindars and Ryots are at all times glad " of any pretext to evade the discharge of their rents,
" " "
"
and some consequence
and
authority
is
absolutely
necessary to enable a farmer to
make his
collections,
but
be
when he
is
liable
on any
trifling
complaints
to
treated in this ignominious manner what influence will " remain to him ? or who will be daring enough under
"
"
predicament to exercise any power to enforce the " collections ? This is an obvious allusion to liability to
this
arrest
on mesne process and other incidents of the

"
We procedure of the Court. The Patna Council said, " do not think the hardship of their situation in the
"
smallest degree exaggerated." As to this matter, I think that all parties had
*
much
to
Patna App. No.
14.
184
THE PATNA CAUSE.
[chap.
I think the Supreme Court was say for themselves. in saying that under the terms of the right Regulating
Act persons employed by the Company to collect the revenue were subject to its jurisdiction, and that whether they were paid by salary or by the profits of a farming contract they were equally within its words. I thiok it
probable that Impey individually was right in saying that the intention of those who framed the act was that this
should be the case, as their object was to protect the cultivators and proprietors against the oppressions of the
collectors of the revenue.
I think the farmers of
the revenue were probably
right saying that if they were subjected to the jurisdiction of the High Court they would not be able to
in
collect the revenue.
In other words, I think that a good deal of what English law would regard as oppression would be necessary for the prompt and regular collection
of the revenue,
and that
if
the farmers were
made
liable
Supreme Court for all their oppressive would find themselves greatly hampered proceedings they in their collections, and deprived of the position which
to actions in the
fear gave them over the cultivators. I think, lastly, that the authors of the Regulating Act were right in thinking that it was an object of the first
importance to protect the cultivators against ojipression at the hands of the collectors of revenue.
fault lay in the clumsiness of the remedy provided the establishment of the Supreme Court. by Outside Calcutta it could be of no use except under
The
conditions
which did not exist in India, and thousrh
intended to prevent oppression, and honestly employed by the Judges for that purpose, it succeeded only in introducing a remedy nearly as bad as the disease.
XII.]
THE PATNA CAUSE.
185
That Behader Beg, merely because he had farmed villages, should be liable to be sued at Calcutta for an alleged wrong which had not the remotest connection with the collection of the revenue, and should be subjected -to arrest on mesne and hopeless imprisonment on final process, to say nothing of the expenses of litigating in an English Court, was a cruel grievance, though the only persons definitely to blame for it appear to me to be those who legislated in a rash peremptory way on matters of which they knew little, indeed nothing precise and
definite.
With
respect to the other and even
more important
points in the case similar observations arise.
The Patna Cause
clearly
showed that the Provincial
Councils were, at least that the Patna Provincial Council was, a mere semblance of a Court which had in practice
made over
its
functions to
its
own
subordinate
officers.
Impey expressed a hope that the decision would strengthen the Provincial Councils regarded as Courts by impressing upon them the importance of discharging their own duties
themselves.
To
this
Bogle with perfect truth replied
that this was an impossibihty. They had neither the^men nor the time (nor, he might have added, the knowledge
or education) necessary for the purpose,
six,
was ridiculously inadequate
for the
and their number, purpose, and

If they did not
their organisation, if possible, worse.

practically
the Cazi and Muftis there would be practically no administration of
make
over
their powers
to
justice at all in India. It seems to me that both
No
Impey and Bogle were right. doubt the Provincial Councils had practically re-
No doubt they were quite incompetent to perform them personally, and

signed their duties to their subordinates.
186
THE PATNA CAUSE.

it
[chap.
no doubt
none.
One
was a question between native judges and If justice was to be thing more is certain.
administered by native judges practically free from all control, it was certain that cases of gross corruption and
Even in the present day, any one who proposed to do away with or greatly to retax the severe system of superintendence and appeal which
oppression would arise.
has been established in the administration of justice in India, would be regarded as opening a door to evils
which the experience of a century has

eradicate.
gone
far
to
In Impey's days there was no. doubt a great amount of Whether he was right in corruption and extortion. it to the Cazi and Muftis in the Patna Cause imputing
a matter on which I have no opinion. He may have been wrong, but he may also have been right, and if he was I see no hardship in what befell them. If they really did plunder the woman of her property and treat
is
her with gross indignity by an abuse of powers which the Council had illegally abandoned to them, I do not see why they should not pay for it.
At
the same time
think that in
this, as
well as in the
to, the Supreme Court was a most unsuitable instrument for the purpose for which it was
other matters referred
intended to be employed, and for which Impey and his brethren seem to have done their best in good faith
employ it. They may be comjâred to carpenters sent into a hospital to perform surgical operations with the common tools of their trade and chopping ott' with
to
broad axes limbs which
though care and

necessity for
it.
required amputation, gentleness might have removed the Instead of dealing tenderly with their
may have
patients and trying to understand their cases, they judged
XII.]
THE PATNA CAUSE,

of their own, discovered "
after all
187
them by a standard
"
inhuman
at worst
oppressors
in
men who
may have been
ignorant and unbusiness-like, and dealt with institutions

dealing destruction in
which were essentially faulty and rickety simply by all directions. The Patna Cause
brought to light great scandals, but it must have struck terror to the heart of every one engaged in the administration of justice throughout the Company's
territories.
The administration of justice by the English in India can never be wholly satisfactory. The difficulties inherent in the enterprise can never be entirely overcome but a great deal may be and has been done to over:
come them, and the
existing system, while
it
has great
A whole system of law has been enacted which errs perhaps on the side of over-minuteness, but which is at least in the most
defects, has nevertheless conspicuous merits,
important parts simplified and made definite to the utmost practicable extent, network of Courts arranged in different grades and connected together, by a system
of superintendence, revision
and appeal, which may in
particulars be over-elaborate, but which is the best security against oppression or corruption, has been spread all over the The great numerical majority of country.
some
these Courts are presided over by native judges specially educated for their profession, and the result of all this
anxious care has been the establishmeut. of a system absolutely different from anything which, was dreamt of
in India or in
in
efforts
like
England either 100 years ago. It was. these, and in the vigilance, care, and
for
thought necessary
lay
for
the evils which the
striking light
making them, that the true remedy Supreme Court set in a and attempted to remedy by giving heavy
188
THE PATNA CAUSE.
[chap.
damages against law
officers whom they considered to have misconducted themselves. This view was not, in the then state of knowledge it
could not be, taken of the subject in England when these events were brought to public notice, soon after their
occurrence.
to
The rooted opinion
of that time
seems
have been that when anything went wrong in public affairs some particular person's wickedness must be the
cause of
" inhuman oppressor." There must be an " " and found his vultures of Bengal Impey thought so, Burke in the Company's servants European and native. and the Whigs thought so, and found the object of their hatred and contempt in Hastings and Impey. There is
it.
indeed a striking similarity between the treatment which Impey himself received from his persecutors in England, and that which the Cazi and Muftis of Patna (always as-
suming
their moral innocence, on
which
have no opinion
either way) received from himself. Chambers, and Hyde. The Americans turned poor George III. into a heartless
The tyrant, and so on. the British public thus

venerable
or,
Patna Cause was represented to Three harmless, upright, and

:
native least, eminently respectable the wicked tyranny of hateful English judges were, by to the Court lawyers, dragged from their home at Patna
at
at Calcutta, 'and there for merely doing their duty as understood it, condemned upon the strength of a
they wretched scrap of law Latin

in-trade of their vile
part of the detestable stock pay damages to the oppressors

to
lie
extent of about 34,000, or in default to duDgeon for the rest of their lives.
in a loathsome
One
(the Cazi)
actually died in the hands of the tyrants as he was on board the boat which was to bring him to Calcutta.
Here was obviously a
case of an
inhuman
oppressor, and
xn.]
THE PATNA CAUSE.
189
equally obviously Impey was the man. He had made enemies on all hands. Francis was accusing him of the
murder of Nuncomar, the Europeans at Calcutta were accusing him of being a thorn in their sides in various ways to be mentioned immediately. The thorougb-going advocates
of the East India
Company regarded the Supreme Court with aversion as at once the bulwark and the most marked
instance of the usurpation by the King of England on what they viewed as the rights of the Company. The
union of these various topics of prejudice produced what may be described as the orthodox faith on this subject.
It
matter, at least, the

justice, grossly
has ever since been the accepted opinion that in this Supreme Court and Imipey, its chief
misconducted themselves.
step taken in consequence of this view affords conclusive evidence of its incorrectness, and proves that the Court was right, and that the persons really to
first
The
blame were the authors of the Eegulating Act. In 1781 an act was passed (21 Geo, 3 c. 70) to amend and explain the Regulating Act. It contained several provisions which bore upon, and were suggested by, the It enacted *that the Supreme Court Patna Cause. should have no jurisdiction in any matter concerning the revenue or concerning any act done in the collection thereof according to the usage and practice of
the country.
It recited
^
that the
"
Governor-General
and Council, or some Committee thereof, or appointed "thereby," did as a fact hear appeals from the provincial
Courts (an extremely doubtful statement), and enacted that "the said court" (whatever it might be, for they do not seem to have supposed that they
knew)
shall
1
be
a court of
record,
and
court
to
I.S.
2s_21,
5S, 22.
190
THE PATNA CAUSE.

all
[chap.
hear and "determine on

"
offences, abuses,
and ex-
appear in the Court customary or necessary " collection of the revenue (so that all customary severities"
tortions,"
"
and
all
"
severities
beyond what
to the
shall "
said
received express parliamentary sanction).
Such offences
were to be punished at their discretion by any punishment short of death, maiming, and imprisonment for ^ The Governor-General and Council were to have life.
power to frame regulations for the provincial courts an enactment which was the legal foundation for the body of regulations of which the permanent settlement is the
most famous, portion.
act provided in relation to the Patna Cause that the three defendants in custody should be itself, discharged from custody on security for the damages
2
The
being given by the Governor-General and Council, which They were also security they were required to give.
empowered
to appeal to the Privy Council against the
judgment, although the time for appealing had passed. No provision was made for compensation to the Cazi's
family or to the Muftis or to Behader Beg, because the Company had promised to make full compensation a promise which was performed. to them
the 28th July, 1784, an appeal, substantially by the East India Company, was entered and referred to a Com-
On
mittee of the Privy Council, but was not proceeded with. After the House of Commons had declined to impeach
Impey on the Nuncomar charge, a faint attempt was made to go on with the charge arising out of the Patna
case.
When
that the East India

their appeal,
1
the matter was brought on it was pointed out Company had not proceeded with
and that the House would be placed

^
in
an
S. 23.
S.
27.
XII.]
THE PATNA CAUSE.
191
absurd position if they impeached Impey for delivering a judgment which was still in force, and might be upheld on appeal. The Company never did proceed with their
Ît was dismissed for want of prosecution in 1780, and the impeachment never was proceeded April, with. The effect of all this is, that after all that was
appeal.
said of
of his
Impey 's enormities, and of the special wickedness judgment in the Patna Cause, the East India
Company
did not dare to have the appeal against it argued. First they let the time pass. They were by statute re-
lieved from that difficulty in 1781. They then let eight years more pass without making a motion in the matter
although they had to compensate the clients whose cause they had taken ap, and to pay the damages about
34,000 and,
suppose,
the
costs
which had
been
awarded to Naderah Begum. How could they have admitted more emphatically that the judgment against which they appealed was good in jôint of law, and that throughout the fault had lain, not with the Supreme
of the whole case thus
of the law
The result Court, but with the Company's servants ? was (assuming the moral innocence
officers, which is assuming a great deal), that so grievous a wrong had been inflicted by the East India Company on the plundered widow that they
had
pay her 34,000 (apart from interest) besides making liberal compensation to their own law officers for the consequences in which the unbusiness-like ways of the Company had involved them. The Act 21 Geo. 3, c. 70, further provided ^ expressly that no one should be subject to the jurisdiction of the Supreme
to
Court by reason only of his being a zemindar or ijaradar

^
See an extract from the Privy Council Eecords published in Impey's

p. 346-7.
^
Memoirs,
S. 9,
192
THE PATNA CAUSE.
[chap.
(the words are not used),
and that no servant of the
should as such be subject to the jurisdiction in cases of inheritance or succession. These enactments
Company
like the
others
show
clearly that the
Supreme Court
that their
stood, correctly interpreted decisions forced parliament to find out its
the law as
it
own wishes
and express them

real offender.
plainly,
and that parliament was the

of 1781
The remedy applied by the Act
was a step
in the right direction. Beyond all doubt it was perthat the faults of the native courts, which fectly right
were many, should be corrected not by actions against the officers of the courts, but by a system of appeal and by legislation. It was also natural that these powers should be put into the hands of the Governor-General
and Council, and that the Supreme Court should not Such an be associated with them in their exercise. association must naturally have appeared in such a state
of feeling as then existed
between the court and the

This, however,
council unnatural and indeed impossible.
was a great misfortune, which continued to exercise a pernicious influence upon the administration of justice in India till the government was transferred to the Crown, and till the High Courts' Act fused the Supreme Court and the Sudder Diwani Adalat into the High
Court as at present constituted. Till that time the old abuses to a great extent continued to prevail though they were not complained of. The clumsy remedy of the
Supreme Court actions was not applied, but the disease When which it had been applied was not cured. this was done, and when the various codes, ^ especially
to
The Codes of Civil and Criminal Proeedure were prepared liy Sir Barnes Peacock in 1859 and 1861. The Code of Criminal Procedure was
''
xir.J
THE PATNA CAUSE.
193
the Codes of Procedure, were prepared (principally by English lawyers holding the place of Legal Members of
Council), the whole administration of justice in India was brought into one general system, based upon definitely ascertained principles, and administered by a single set
of Courts in
each province, the
High Courts formed
out of the old Supreme Courts and the old Sudder Courts standing at the head of the system in their
respective provinces. During the interval between the days of Hastings and those of modern legislation things went on comparatively
and great improvements were made, but it is imjjossible to me at least to doubt that the most grievous injustice must have been done, and the greatest encouragement given to fraud, perjury, and oppression of every kind by the perpetuation in the Country Courts
quietly,
of the very faults which were so roughly brought to in the Patna Cause, and light by Impey's judgment which nothing could effectually remove except the
of those very principles of English law which Impey insisted, and af which the Sudder upon Courts were profoundly ignorant. I mean the sub-
introduction
principles as distinguished from the technical rules of evidence. For many years after the days of
stantial
Hastings evidence was taken by native clerks
who were
quote a
incompetent to discharge that duty. ^ Shore's Notes, and I sj'-stem is described in

totally
The whole
may
re-arranged, and re-enacted during my tenure of office in 1872, and was again re-enacted with provisions extending it to the High Courts in 1882 whilst Mr. Whitley Stokes was legal member. The Code of Civil Pro-
cedure was recast and re-enacted in 1877 by Sir Arthur Hobhouse. ^ Notes on Indian Affairs by the Hon. Frederic Shore, 1837, vol.
i.
pp.
236-73.
Mr. Shore was a son of the
on
all
matters, especially legal

II.
Lord Teignmouth. He wrote matters, in the acrid contemptuous style

first
VOL.
19i
THE PATNA CAUSE.
[chav.
few lines to show how in 1837 the taking of evidence
"was managed.
"
"The
police
reports,
are handed over prisoners and witnesses,
prosecutors, to different
"
" " "
natives
attached to the
oflfice,
who
in
sit
down
in
an
and
adjoining room, question them
Hindustani
take their depositions in Persian, after which the case is considered prepared. During the last few years a
"
"
" "
''
been made in the above routine. In some Courts the parties are not often now taken into It is done a different room to give their deposition.
slight variation has
in that in
which the magistrate
sits,
and when brought
up
for
hearing the officer of the Courts reads off the
The writers "depositions in Hindustani " who take the depositions do so in the remotest " corners of the room, and are desired to speak in " as low a tone as possible, that they may not interrupt " the judge-magistrate who is attending to other business." One of the most practically important alterations made
in this system is
embodied in the Codes of Civil and
Criminal Procedure which provide elaborately for the and for his taking of evidence by the judge himself, takinof and sisfning notes of the evidence as it is taken.
It is
remarkable that no part of the whole system
v.as so
me by the officers frequently the subject of complaint to administer it as this. who had to They said that it
imposed great labour on them, which no doubt was true, and that it prevented them from disposing rapidly of many cases which under the old system might have been
speedily disposed
of.
This also
is
true.
Under the
old
which Bentham, James Mill and others made popular, lint he had much knowledge and experience, and was a very able man. His work had a Shore takes many of his facts great influence on Sir Charles Napier. him. exclusively from James Mill, and, like Macaulay, is misled by
XII.]
THE PATNA CAUSE.
195
system no doubt more causes were determined, but I do not believe nearly so many were heard. To do injustice quickly is the easiest thing in the world. To do justice
easily is simply impossible. The tenacity with which the civilian judges clung to the native system which the Supreme Court attacked so
C[uickly
and
roughly
is
noticeable.
it
It
was as pleasant and easy

for the suitors.
for
the judges as
was disastrous
of
is
The
article
impeachment against Irapey on the

even
covers
Patna Cause Nuncomar.
worse than the article about
and appears
of
it)
twenty-two large folio pages, do not pretend to have read the whole to consist of a history of the whole case, entering
(for I
it
It
into
minute
which
details supplied principally by Bogle's letter, takes to be absolutely correct, and which it
contrasts with Impey's
summing
Bogle differ, the impeachment have been not only wrong but corruptly and wickedly To give one instance only, Impey is wrong.
Where Impey and up. avers that Impey must
impeached amongst many other things, because in weighins the evidence of Zekereah, he did not attach
sufficient
importance to a part of Zekereah's crossexamination, which is set out at full length, being copied out of Bogle's letter.
The
foolish declamatory style of the article
may be
illustrated by one short extract.

"
'Sir Elijah Impey has frequently declared it to be his duty to vary the forms of pro" ceedings, and to depart from and vary the rules of " pleading used in the law of England according to the
"That the
said
The draftsman cannot make up
his
mind how
to
describe
the
defendant.
sometimes "Elijah Impey," Elijah Impey," generally "the said Impey."

is
He
less frequently
"Sir
o 2
196
"
THE PATNA CAUSE.
[cHAr.
"
circumstances of the country, and has frequently exercised the power and authority so to do. " That the said Sir Elijah Impey is therefore higlily
culpable and grossly criminal if ever he permitted the rooted prejudices of the native inhabitants of Bengal, " &c., [sic], to be shocked, their principles of government
''
"
"
overset, their judges
" "
"
their laws
and magistrates disgraced, and and religion violated by too strict an ad-
other manners and a different relioion.

Sir Elijah
herence to laws suited for another state of society, That the said
still more grossly criminal if he be done from a rigid adherence to permitted " form and not to substance, to technical and minute " niceties, and not to leading solid and essential princi-
"
"
Impey was
all this to
"
pies
"
''
and such a conduct
if
ever followed cannot be
ascribed to ignorance or error in
judgment
(if
in a Chief Justice could be an excuse), but
ignorance must be
"
"
ascribed to injustice, partiality, corruption, and an out-
rageous lust for power and authority," If he had had to draw an indictment charging a schoolsaid,
master with theft this writer would probably have

"
frequently declared that honesty was the " best policy, and often made his pupils write down these " words in their copy-books. If therefore it is proved " that he himself took and carried
said
The
AB
feloniously stole,
away
'
"
" "
pounds he will appear to be highly culpable, and to have acted not from ignorance (if that could be any excuse in a schoolmaster), but from corrupt and disfive
honest motives and from an outrageous lust for money." I will conclude by reference to one other matter,
namely, the way in which the history of the Patna Cause is treated by James Mill, Avho has been regarded
as the principal
authority on
it.
James
Mill,
by the
XII.]
THE PATNA CAUSE.
197
the
almost affected dryness and severity of his style and by extreme harshness of his censures on others, has
acquired a reputation for the accuracy and rigid justice which would be necessary to justify his judgments. It by no means follows, however, that a man is just because he
is
severe
is
upon
others, or that
he
is
accurate because
he
dry.
Mill's assertions as to the
Patna Cause are
false,
and
I think
I can point out the origin of their
subject is dry, and intricate and I believe that the greater part of the judgment of seeing Impey and the letter of Bogle, which together fill seventy
falsehood.
The
that
large folio pages, referred to matters of detail
which
it
was unnecessary
for
him
to study,
he either skipped them
altogether, or, as I rather think, slightly glanced at all events at Bogle's letter. He then constructed an account of the case out of the notices of justification and Impey's
interlocutory judgment, both of which he misrepresents, introducing into the notices of justification matter which
they do not
state,
but which Bogle advances as an argu-
ment
in support of the case set

all
up by them and
entirely
suppressing
the important part of Impey's judgment. comparison between the matters stated above and
the following extract from Mill which is his summary of the case will make this plain. After giving a summary of the notices of justification, which I pass over, he says " This defence, which to the eye of reason appears
:
'
"
^ with appropriate and irrefragable, the Court treated the utmost contempt, and upon a ground which raises
"surprise and indignation.

" "
form of words, among the
numerous
loose expressions which fall from the lips
and
pens of English lawyers, without any binding authority " or any defined and consistent application occurred to the
^
This
is false.
No
contempt
is
shown
in the judgment.
198
THE PATNA CAUSE.
[chap. xii.
''judges.
"
This was the phrase delegatus non potest dek'he who is delegated cannot delegate,' and ûpon gave, "this and no other reason so much as alleged they
"
decreed that the Cazi and Mufties
for
acting regu-
"
to act, and had in larly, acting as they were obliged " fact been accustomed to act ever since the jurisdiction " of the country had passed under legal control, were " liable to actions of damages at the suit of every person
"
whom
their proceedings displeased." After some denunciation of the absurdity of such a
James Mill
"
proceeding, which would no doubt have been monstrous, this proceeds, "Deciding upon the strength of
assemblage of words that the provincial council

laot
could
"
"
delegate any
authority to
as their agents, and which these assistant magistrates had performed " was without authority, the Supreme Court thought " the proper to enter minutely and laboriously into " whole of the case, and after voluminous proceedings
even
the native magistrates hence that everything
"
"
"
gave judgment against the defendants, damages Rs. 300,000 and costs E,s. 9,208, amounting to the sum "of about* 35,000."
1
This
is false.
Many
other reasons were alleged, which are specified
above.
" for 2 This is false. It should be acting, as the Court held, irregularlj', " neither by corruptly, oppressively, and in a manner authorised, " custom nor by the orders of the Council in the particular case." This is false. The Court held only that they couldnot delegate their whole judicial authority, and that in fact they had done so, and that the authority so delegated had been wickedly abused. * This is inaccurate. It is quoted from the report of Touchet's ComThe mistake itself is unimmittee, which says 34,000 not 35,000. which indicate portant, but I have found several such mistakes in Mill some want of accuracy. This, however, is nothing to his bad faith my experience is that when he makes imputations, especially on lawyers,
=^
Mill ought always to be carefully confronted with the original authorities.
CHAPTER
CALCUTTA.
XIII.
THE SUPREME COURT AND THE EUROPEANS IN
TOUCHET's
PETITION.
The next incident in the order of time to the Patna. Cause was the petition called Touchet's Petition against the High Court by the Calcutta Europeans, which
which
occasioned the sitting of the Committee to the report of I have referred so often. The immediate cause of
tried in the
the petition was an agitation which arose out of an action summer of 1778. The petition was drawn
to England in March, 1779, but in order to the state of things to which it referred it is appreciate
up and sent
necessary to say something of earlier incidents. At the time of the trial and execution of Nuncomar
the
High Court seems

at Calcutta.
to
have been popular with the
Europeans
be so are stated
The reasons why it ceased to by Impey in his correspondence, and
appear probable in themselves although their existence was ^ denied emphatically by some of the witnesses ex-
amined before Touchet's Committee.

time
it is
At
this distance of
impossible except by accident to get anything like complete evidence on the matter. The Court was
complained of by the different witnesses examined, as

^
See
ill
particular the evidence of Mr. Price, p. 77.
200
THE SUPREME COURT AND THE EUROPEANS,

liiglily
[chap.
technical and very expensive. The notion unpopularity arose from its restraining the oppressive practices of the Europeans in Calcutta was
being
that
its
eagerly repudiated. The strongest and most remarkable instance of the technicality imputed to it was, that ^ it
was
said to have discharged as
many
as sixty or seventy
prisoners from gaol because they were not regularly confined a measure alleged to have greatly disturbed the
peace of Calcutta and endangered the safety of property and person there. It was unfortunate, as the Committee ^ remarked, that
"
no agent was appointed by the Supreme Court, that " a " " great part of the papers transmitted had not been
"
"
communicated to each other by the contending parties," and that many of the witnesses were
previously
Corresponding remarks of course apply to the statements in Impey's private correspondence, but I give the most important of them for what they are worth.
partisans.
Some
of them are extremely curious in themselves. Others show what his side of the story was. I will
notice
them
first
in the order of their date.
and by much the most curious is an imperfect copy of a paper entered in Impey's letter book, dated May, 1777, and purporting to be either the copy or a draft of a letter to the Court of Directors. It is sig-ned
The
Avith the initials of ImjDey,
Lemaistre and Hyde.
It
relates to the liberation of the prisoners
and
is
curious on
grounds, particularly because it describes incidents identical in their main features with others which occurred within the last year (1884) in Egypt. The letter states
many
that the judges

^
heard
that
Mr.
Mills
was
inflicting
See evidence of Messrs. Hickey, Price, and Mills.
Report, pp. 72-3
Page
4.
XIII.]
THE SUPREME COURT AND THE EUROPEANS.
201
in a prison called the inquiry verified the information. " We found a large group of miserable objects confined " by the orders of Mr. Mills some were simply so some
punishment on many prisoners

Herrinbarah.
"The
"
"
under sentence from him to ^ beat Salkey others, who formed the greatest part, loaded with irons and con;
demned for limited times to work on the public roads. All these several persons were committed without any " " " written warrant [a space here probably a"]
"
"
"
upon
"
"
verbal message delivered by a
common peon to the person
"
"
"
Of the cause of the comofficiating as gaoler there. mitment of some and the duration of their imprisonment the gaoler was totally ignorant of some no memorandum was kept by Mr. Mills or any other person, and such
;
"
"
account of their crimes and commitments can only be procured, as the recollection of Mr. Mills and his officers could afford. Others neither Mr. Mills nor his officers
"
had any recollection " [of]. After stating in detail that Mr. Mills had set up a regular system for the administraand
"
tion of criminal
also civil justice the letter proceeds.
"
"
" "
examination of Mr. Mills and his books it appears that no witnesses were ever examined on oath, that flogging [s] were used to extort confession, that many of
On
the severest punishments were inflicted without proofs, on public fame, hearsay, or on written messages, and " some even without the charge of any crime being ex"hibited against them." Mr. Mills, the letter
says,
claimed to have been appointed by the Governor- General to be Superintendent of Police, but the judges say,
"
"
"
we find the appointment is his own authority, that he had received no instructions whatsoever, and was
ignorant of the nature and
^
extent of his pretended

for
To break up old rubbish
mending
roads.
202
"
THE SrPEEME COURT AXD THE ErEOPEAXS.
[chap.
authority."
^
He
had been preceded in
this office
by
exercised a petty jurisdiction which though they thought it illegal the judges did not
feel called
another person
who had
upon
to interfere with, but
^.
Mills's
conduct
and clamour, almost tumult " against the vexations and oppressions of the office." The judges discharged some of the prisoners it seems in a
raised universal terror
classes of them who thev be legally confined they said thought might possibly they should discharge at the next gaol delivery if no
had
''
summary wav, but
certain
made against them, and it seems that did so, as indeed was their obvious they duty as justices of gaol delivery under the Regulating Act.
accusation was
What had happened is obvious. The old system of criminal justice was carried on by Mr. Mills under the of the Nabob, who was authority supposed to administer criminal justice throughout Bengal including Calcutta, notwithstanding the arrival of the Supreme Court and the
abandonment or suppression of the old phousdarry Court., and in direct opposition to the provisions which gave the Supreme Court a local jurisdiction essentially exclusive as a Court of goal delivery in Calcutta. The Herrinbarah was just such a prison as British officer found at Lahore
in 1847, and at Alexandria in 1884.
The
action of the Court both in and out of Calcutta

its
^
and the causes of
Impey
in a
long letter
unpopularity are thus described by which he addressed to Governor
Johnstone dated apparently ISth August, 1778. " I verily believe the Court has done as much if not " more than was expected from it. If it has not eradicated
See as to biTn pp. 229-30. Pleydell. the letter from which I have already made a long extract as to the reasons why Xoncomar was not See pp. 255-60. respited.
-
Not named, but probably Mr.

is
TMs
XIII.]
THE SUPREME COURT AXD THE EUROPEANS.
203
"
"
'"'
many evils, yet it has rendered them less frequent, and made men more cautions in the perpetration of them.
Many abuses have come before the Court and large damages have been given to the injured, in most cases ' large offers have been made to prevent the commence" ment of suits, or to stifle them when besrun.
"
''
''
'
'
"
term some high damages and a principal Banyan of Calcutta in the service of an English gentleman paid to a plaintiff no less than E^. 40,000 in part of damages, merely to have the cause of action determined by arbitrators and prevent it being made pubhck in Court. '' In and near Calcutta the Court has nearly had the
sittings after the last
;
"
In the
were proved and given
'
'
"'
complete effect of giving security to the persons and property of the natives. They feel themselves entitled to the rights of humanity in common with those
Europeans, the meanest of whom they before considered as their lord, and they have now courage and confidence
sufficient to assert those rights.
" "
' "
For the truth of
this I
appeal to witnesses in
Europe (Company's servants in
general, for the reasons I shall hereafter give, must bear " partial testimony), I mean such persons who have been " resident in Calcutta either as merchants or captains, of
'
'
European ships. I wish it had its effects as fully in the more remote parts of the provinces. But that cannot
"
be expected in the present heterogeneous constitution of this country. The East India Company, or rather "their servants are no doubt in fact the sovereigns
" "
"
''
of this country, and their sway is more arbitrary than has ever been experienced in any settled form of government. In settled governments even of the more
arbitrary denomination, if positive laws do not restrain, yet usages and custom become a law, which controls
" "
204 "
[cirAi-.
the will of the despot. Here are no positive laws to " guide, and the usages and customs are but little known.
"
'
two apparent causes are these first, the introduction of "judges of the appointment of the King is felt and " considered as an usurpation on the rights of sovereignty
:
"
is the only country within my recollection where the supposed interest of the sovereign is to weaken as "much as possible the administration of justice. The
This
exercised in this country, and it is a control, weak as it "is over the sovereigns themselves, and a tribunal to " which they may be called. This must be galling to
"
"despots.
" "
"
"
it weakens that favourite which they could protect from by prosecutions their agents and dependants, by which they were kept amenable to no justice, but that which they
is
The other
that
part of their authority
choose
to.
[It is natural that
"
"
the] Governor-General
and Council should

plaints
not
lend a ready [ear] to com-
which tend to strengthen their authority, which the abridgment of the powers of the Court certainly " would. It is owing to that, no doubt, that the servants of " the Company have been encouraged to write letters to
"
"
"
" "
"
the Board on these subjects, with which the Consultations are loaded. By this mode they do not complain themselves, for
full effect of
which they have no cause, but they give the showing the Court of Justice to be incon-
venient.
I do not
"
"
mean by this that
the Court has been

it
of no use beyond the limits of Calcutta,
has redressed
many
"
injuries,
and suppressed many oppressions.
"
"
complaint made against the Court by the Company, a confession on their part of the were it useless, did it not restrain them, utility of it
I confess I feel every
;
"though
"
it
might injure the

It
is
natives, they
would not
complain.
not the natives in general
who complain.
xiri.]
THE SUPREME COURT AND THE EUROPEAN'S.
205
"
"
"
Company's servants or those who derive power and influence from them. It is the wolf growhng at the chain, whence all on a sudden this compassion for
It is either the
"
the lambs."
Such are Impey's statements as to the state of things which existed in 1778. ^ About the time when this letter was written actions were brought in the Supreme Court against James Creassy by two natives for keeping
a night, beating them himself with a rattan cane, and causing his servants also to beat them in order to compel them to leave one service for
in
them
confinement
for
another,
tried
Creassy demanded that the case should
be
by a jury. No counsel would argue his case, as the claim was in direct opposition to the express words of the He accordingly pleaded his own cause, and the charter. Court gave judgment against him with damages to the
amount
of Rs. 200.
This was the beginning of an agitation which in March, 1779, led to a petition for trial by European juries in
civil cases in
which Europeans were concerned.
They
proposed other changes, as for instance that the GovernorGeneral in Council might be invested with a power over
Supreme Court analogous to that supposed to have been exercised by the Chancellor over the Courts of Common Law. This was Touchet's petition, which led to the appointment of a Parliamentary Committee and the
the
collection of the evidence
on which nearly the whole of
these chapters is based. Impey's observations
upon
it,
made
partly in a letter to
Lord Weymouth and partly in his private correspondence, are obvious, and are substantially the same as those
1
Impey Lord Weymouth, 26th

31.
March,
1779.
General
App.
No.
206
THE SUPREME COURT AND THE EUROPEANS,

of the
[chap.
made by Mr. Rous, the standing Counsel

in England.
^
Company
Air.
Rous
"
said,
Admit the
trial
by jury
in civil cases
"
and the oppressors themselves
will decide the degree of
"
compensation for their own wrongs." As to the proposal to give an appeal from the Supreme Court to the
Governor-General in Council, Mr. Rous says it would be better to abolish the Court altogether. I do not think it can be doubted that the petition shows that the Court
was objected to by the Calcutta Europeans because it put a strong restraint upon oppressive practices to which they were much addicted, of which the action against Creassy is an illustration. An important remark arises upon it, however, which shows the extreme danger of the course taken by the
Council in regard to the Rajah of Cossijurah to be noticed immediately. This is that the movement was to a great extent a military one. One admitted practical difficulty
of having a trial by jury was the
want
of
jurymen
this
the petitioners proposed to overcome by establishing a Out of 313 persons who panel of volunteer jurors. offered to serve on the panel, 104 were military officers.
very large proportion of those who signed the petition The officer who commanded appear to have been officers.
the
''
artillery,
Camp.
Colonel Pearce, " carried the petition to the After a field day he convened his officers, had
to
it.
" "
them and showed to them with his More officers who were not present, signature " were afterwards sent for and the petition showed to them " in like manner. The Colonel with great warmth inthe petition read to
"
"
formed us in open Court that the had signed to a man."

1
officers of his corps
See his opinion, Gen. App. No. 39,
XIII.]

also says in the
"
207
told
"
"
Impey him
same
letter that
Hastings had
the
that he had heard from Barwell that another
petition
was in
agitation to
be addressed to
Governor and Council
to require
them
(as hostilities
had been commenced in India against the French) to proclaim that the settlement was now under military " law." Impey says the Court did not fear that this would be done, but it shows the power of the army. In his private correspondence he gives further par" In i one letter he says, " the persons who ticulars.
" "
have been the original instigators in
this business are
"Colonel Watson, against whom an ejectment was tried, and Mr. Cotterill, defendant in an action for assault,
''
"
&c. You will see by the names to the petition how active the military have been." After mentioning some " of them he says, They talk of their rights being in"
"
defeasible
like
Americans, and in case of want of

their
"
"
success
to
follow
example.
An
to
begun
"
to get a petition presented
attemjst was the Governor-
General in Council to proclaim martial law in the " As settlement, but that was immediately suppressed."
to the proposal to have civil causes tried by European " I have heard it juries he says in the same letter, " was not impolitic to set a thief to catch a thief, but it " has never yet been proposed at the Old Bailey to try a
highwayman by a jury of highwaymen." The language said to have been used by the military must appear to us in the present day too extravagant to have been of any importance, but those who think so forget that even in our own days one of the most serious dangers which ever threatened India was what was
called the white
i
'
mutiny which followed the suppression

(his agent),
Impey Kerby
26th March, 1779, Impey MSS.
208
THE SUPEEME COUET AND THE EUEOPEANS.
[ch. xiii.
mutiny of the Sepoys, because the Company's European forces thought they had been unfairly treated. All through the early history of the Company mutiny ^ by its European troops was a standing danger, and at the very crisis of the American war, when the communication between England and India was almost cut on, wnen the American Colonies were in open revolt, and Ireland on the very brink of it, the Company's army might well think that they could do as they pleased and establish themselves, if not as an independent power, at
of the
events as the practical rulers of the Company's territories. This might be a dream, but it might also
all
terrible practical results, and Hastings and his Council ran a risk of encouraging these feelings to the utmost by calling in the army against the Court, as they
have
did on the occasion

^
now
to be noticed,
list
See Lord Minto in India, pp. 201-2 note, for a

troops.
of mutioies
by the
Company's
CHAPTER
XIV.
THE COSSIJURAH CAUSE.

proceedings in the Patna Cause tools place in tlie years 1777, 1778, and 1779. It was followed by a cause known as the Cossijurah Cause, which began in 1779, and in the beginning of 1780 brought the quarrel between
the Court and the Council to a
crisis.
The
Cossinaut Baboo had lent a large sum of money to the Zemindar of Cossijurah, and had tried for a considerable
time to get the money from him through the Calcutta Board of Revenue. As this process did not succeed to
his wish, Cossinaut sued the
Zemindar in the Supreme
Court, filing on the 13th August, 1779, an afiidavit which stated that the Zemindar was employed in the collection
of the revenues. The collector of Midnapore, Mr. Peiarce, informed the Governor-General in Council of this, and
Zemindar was concealing himself in order to avoid service of the writ, to the damage of the revenue which he ought to have been collecting. The GovernorGeneral and Council consulted the Advocate- General Sir John Day, and received from him a singular opinion, in " which after a long preface to the eifect that ^ we and our " Courts stand upon a problematical title and questionable
said that the
^
Cossijurah,
A pp. No.
5.
VOL.
II.
210
"
[chap.
ground," so far as relates to the rights of the natives, " he says that the question is, whether the few remaining " rights of a people to whom we have left but little,"
shall be invaded.
He
Court of the Regulating Act

"
"
adds that the view taken by the " I is wrong, and he says,
advise that in the case
now
referred to, the
Zemindar
have notice that not being subject to the jurisdiction " he shall not appear, or plead, or do or suffer any act " which may amount on his part to a recognition of the
"
authority of the judicature as extending to himself." An order is ^ stated by Impey to have been issued to
that they were subject to the jurisdiction of the Court only if they were servants to the Company or had subjected themselves by their own
all
landholders to inform
them
consent to the jurisdiction, and that if they did not (apparently in their own opinion) fall within either class
they were to pay no attention to the process of the Court. Impey comments on the terms of this proclamation, which
he says were intentionally disrespectful both to the Court " and to the King, who is called the English King" without
the object being, as Impey suggests, to avoid conveying the notion that the King of England had any Besides this general proauthority as King in Bengal.
any
title,
clamation a special direction to the same effect was given to the Zemindar of Cossijurah, who thereupon took no
His people notice of the further process of the Court. beat off the sheriff and his officers when they attempted
to take
him under a capias. Hereupon a writ was issued to sequestrate his property to compel appearance, and the sheriff collected a force of fifty or sixty sailors and
others
1
who marched armed from Calcutta

Impey
to
to Cossijurah
E.
Lord Weymouth, March
2,
1780 (Cossijurah App.
No.
26).
XIV.]
211
efifect their This they did, as it was purpose. by the Rajah with great violence and with acts of The Governordisrespect towards his idol and zenana. General and Council ordered Colonel Ahmuty, who was
in order to
alleged
in
of troops at Midnapore, to march a force of sepoys against the sheriff's party and arrest them. He did so. AttemjDts were made to attach the officer who
command
commanded the troops, as for a contempt, but the execution

process also was prevented by military force. Finally actions were brought against Hastings and the other members of Council individually by the
of this
in the action against the
plaintiff
Rajah of Cossijurah. At first they entered appearances, but when they saw the terms of the plaint against them, which showed that they were sued for acts done in their public capacity they all
(except Barwell) caused
their
counsel to
make a
de-
withdrew their aj^pearances, and that they would not submit to any process which the Court might issue against them.
claration in Court that they
The only person who
actually suffered in any
way
for
the part he took in the matter was Naylor, the attorney of the Zemindar. He was required to answer interrogatories
on the part he had taken in
it
and was committed
contempt in refusing to answer, but it is not necessary to go into this matter, nor to enter minutely into any of
for
the
facts.
Substantially the matter
may be
stated in two
words.
The Council declared
to all persons in
Bengal
out of Calcutta that they need not take any notice of the process of the Court, and that if the Court attempted to
enforce its process the Council would military force prevent it from so doing.
by an exertion of
The explanation
is
simple.
of the measures taken by the Council For a variety of reasons, most of which are
P 2
212
[chap.
quite natural and intelligible, they hated the Supreme It represented an authority which the Company's Court,
servants practically repudiated.
law,
It represented English
which they Aaied both for its defects, which no doubt were then great, and for its merits. No doubt they thought it was a great grievance, and indeed it was one, that Behader Beg should be brought from Patna to Calcutta, to plead his cause in a purely English Court
;
but they probably felt it a much greater grievance that the Ijaradars and Zemindars should be interfered with,
pay their revenue punctually, they their ryots in a way which English lawyers squeezed would describe as oppressive or extortionate. They may
if,
in
order to
have thought that the Court went beyond the powers given it by the Regulating Act, but they were by no means If they had been they would have taken the sure of it.
legal straightforward course of getting a direct decision
from the Court upon the questions in which they were an specially interested, and testing its correctness by
appeal to the King in Council.
They could
easily
have done so, and had between 1775 and 1780, five years, in which to do it. From this test, though Impey suggested The course which it repeatedly, they invariably shrank.
they ultimately took was simple, they had the militaiy force in their hands, they had public feeling with them,
and they preferred using that
force to appealing to the
common
There is a superior of both Court and Council. that the Council forcibly interfered with vague impression the Court because the Court had assumed jurisdiction
over the Zemindars, as such. This is entirely incorrect. The Court never held that Zemindars as such were in the
Company's employment, and so subject tion. They uniformly held the reverse.
to their jurisdic-
Bogle expressly
XIV.]
THE COSSIJURAH CAUSE
213
1 says so in a report to the Council dated 13 th November, " in the following words. Since the establishment 1778, " of the Supreme Court no question has been agitated
which could bring the rights of the Zemindars Many suits indeed have been com" menced against them, but they have always pleaded to " the jurisdiction and except when their cause happened " to be managed by an unskilful attorney, their plea has " been sustained. They have been considered as always
before
to
it
"
"
a discussion.
"
"
'"
landholders, possessed of extensive territories paying a certain land-tax or assessment to government. This
''
"
" "
exception of the Zemindars from the jurisdiction of the Supreme Court has served perhaps more than any other
cause to
set limits to the
introduction of an institution so
embarrassment which the new and so little
congenial with the principles of their government was
"
"
"
" " "
A powerful class of men, under likely to have produced. whose protection the great body of the people lived, continued to feel no superior but the Company's to know no laws but the government usages and customs of the country, and to preserve throughout the
;
interior parts of these provinces the
ancient modes of
"
"
government by which the revenue is collected and the peace and subordination of society preserved." It appears
Zemindars cannot be rendered more independent of the Court by any decision that may be passed regarding them, but a judicial inquiry into their
therefore that the

" " "
" "
rights and tenures to have important
whenever
it
shall
consequences in the
happen is likely government of
the country."
It is impossible to give clearer or
this, for
than
more weighty evidence was the commissioner of law suits, Bogle

^
See General Appendix No. 12.
2U
and
it
THE COSSIJUEAH CAUSE.

was upon
his criticisms of the
[chap.
Patna Cause that
the impeachment of Impey on that matter appears to
have proceeded. ^ Impey 's statement on the subject to Lord Weymouth " The Court does not, nor ever did, is equally explicit.
" " "
claim any jurisdiction over Zemindars, simply as Zemindars, but that their character of Zemindars will not exempt them from the jurisdiction of the Court if
" " "
they be employed or be directly or indirectly in the service of the East India Company or any other British
subject."
An
2
themselves
below.
admission to the same effect by the Council is contained in their letter to the Directors,
is
January 25th, 1780, as
noticed
more
particularly
The real gi'ound of quarrel between the Court and the Council went far deeper than any of the topics of grievance on which so much has been said. The Court held, as they
could not but hold, that every one in Bengal, Behar and Orissa was subject to their jurisdiction, to this extent
that
to
he was bound,
to
if
sued in the Supreme Court,
the jurisdiction. The whole appear contention of the Council was that this was not so, and
plead to
any one not being an Englishman born, or in the pay of the Company, was sued in the Supreme Court he was justified in taking no notice of its process. In other
that
if
words, every defendant was to judge in his own case whether he was subject to the jurisdiction of the Supreme
Court or not, residents in Calcutta only excepted. This was equivalent to confining the jurisdiction of the Court by force to the town of Calcutta. The arguments of the
^
March 12th, 1780, Cossijurah App. No. 25. General App. No. 13.
xiT.]
215
Council and the Court on the subject appear at length in a ^despatch to the Directors by the Council dated 25th January, 1780, and in two letters from Impey to
Lord Weymouth Mated, March 2nd and 12th, 1780. It is difficult to put at once shortly and fairly the views of the two parties. The letter of the Council is full of topics
of prejudice and introductory matter which has nothing to do with the legal merits of the case, but the essence
of their
argument
is,
I think, this
gives you, the Supreme Court, no jurisdiction at all over the great bulk of the native
population, but expressly excludes them from your jurisdiction, except in a few particular and very special cases. If you assume a general jurisdiction to
to try before
The Regulating Act
compel people you the question whether they do or do not fall within one of those small classes, you subject them to a hardship from which the legislature meant them to be exempt. " We know of no express law
"
which conveys to it the rights in question, and the "plain and literal construction of the only law under " which it acts is a direct prohibition of it. Wherefore
"
conceive ourselves to be warranted in declaring "every opposition to the Court in the attempt to
"
we
"
" "
"
its powers beyond their legal bound to be in itself illegal, and, in the relation in which we stand
stretch
to
the Government, ^ an indispensable duty, as that is in the authors of it attempt illegal and a departure
from their duty."
on the hardships connected with the jurisdiction, and refers more particularly
letter insists at great length
^ ^
The
'
General App. , No. 13, Cossijurah App., Nos. 26 and 25. Some such words as " this declaration," "appears to
usan" seem
to
be wanted here.
216

the
case
[chap.
to
of
Mahomed
Rheza
Khan, who
some
time after his acquittal was restored to the office of Nawab Nazim. Process had been issued against him
from the Supreme Court.
regarded his as a typical case.

"
The Council appear to have " Not owning allegiance
"to the king nor obedience to his laws; having been born and educated, and now living and having always " lived out of his protection deriving no benefit or " security whatever in life or member, in fame, liberty,
;
"
"
" "
the administration of justice under and not having therefore the common consideration for which men at the first formation of society
those laws,
^
or fortune, from
surrendered those portions of their natural liberty the of which constitutes the "aggregate authority of the
he claims, we conceive of right, as thorough an from the controul of our laws, as nature exemption "has given him an alienage from us in blood,
State,
"
"
and complexion." This was just as true of the rest of the population as it was of Mahomed Rheza Khan, so that the Council
actually put their resistance to the
pressly
"
temper,
Supreme Court exitself
on the ground that Parliament
had no
if
authority to legislate for natives of India, and that

it
affected to do so its enactments
must be evaded
or
resisted,
The Council are not, however, consistent in their defence for their conduct. They say elsewhere (para. 27) that they could have pointed out to the Court the
:
persons who were the proper objects of its jurisdiction, and that if the Court would have agreed to accept their statements as conclusive on this point would have
enforced
2
the process
This
is
of
more
the
Court.
they This shows the
in style
like Francis
than Hastings.
XIV.]
217
hollowness of their professions about the rights of the

natives.
They
"
"
also
admit that the Court had never asserted

class,
jurisdiction over Zemindars as a
and that their
exemption had been frequently declared in loose and extra-judicial intimations," which had prevented such
suits being proceeded with.
other topics, but the net result of the whole appears to me to be that the jurisdiction of the Court outside Calcutta was destroyed by
letter deals
The
with
many
military force in the face of the Regulating Act, because the Court was highly unpopular, and because some real
defects
and grievances incidental

strike
to
its
process
em-
blow at principles which the East India Company detested, and at a control over its own proceedings which was open to great objection and was most unwelcome to them, though
boldened the Council to
a
intended (not wisely) to be imposed by the Act. Împey's letters to Lord Weymouth vindicate the
^ *
Paragraph 20, near the end.

Cossijurah App., Nos. 25 and 26.
Jlill.
These
letters are grossly mis-
represented by James
letter of
them and of another " In vindication of the "attempt to force the jurisdiction of the Court upon the Zemindars "it is affirmed that although as Zemindars they were not subject to " that jurisdiction, yet as renters and collectors of the revenue, they are
(iv.
241).
He
says of
March 25th (Gen. App. No.
31),
'included in the description of servants of the Company." This is There are no expressions to that effect in any part of either of the three letters referred to. In the letter of March 12th, Impey
wholly untrue.
says,
"
ployed directly or indirectly, in the service of the East India Company other British subject." Mill thus makes Impey say that all Zemindars are subject to the jurisdiction of the Court, though not as Zemindars, while in fact he lays down a rule by which most of them were not subject to it at all. Mill says that Impey vindicated what in fact he repudiated.
"
"The Court does not, nor ever did, claim an j' jurisdiction over Zemindars, simply as Zemindars, but that their character of Zemindars "will not exempt them from the jurisdiction of the Court if they be em-
"or any
218
[chap.
proceedings of the Court in a way which, as to mere He says, for one thing " Two law, is unanswerable.
"
" "
complaints the Court
one,
;
have
its
that
been particularly directed against it has exceeded its jurisdiction
the other, that " of great abuses

"
executive officers have been guilty and for captivating a more than ordi-
nary attention to these complaints, they have held them " " out as causes which affect the revenue." The
. .
.
"
complaint of our exceeding our jurisdiction commenced " early in the time of Sir John Clavering nor has any
;
"
"
"
.
new
been determined concerning it. Yet no appeal has been made, or any judgment given on any plea, to the jurisdiction."
point, to the best of
my
recollection,
" "
that
"
"
have frequently desired the Governor-General he was dissatisfied one of these courses should be taken, that the question might be submitted to His Majesty in Council and finally determined. As there
if
..." I
"
have been no such appeals or prosecutions, I trust wê shall not be censurable for excess of jurisdiction on " mere clamour and unexamined accusations, without " some one authentic document be transmitted to England " to evince that in some one -case the facts proved on the
" "
plea to tbe jurisdiction were not solid grounds for our determination of it."
challenge the abortive attempt to impeach was the only answer ever given. Impey Another passage in the same letter is very noticeable. It is exactly to the same effect as much that might be
this
To
said in the present
day in answer to the charge that the

in India favours the
modern English procedure
money
lender and oppresses the tenant. " The real hardship to the Zemindars, &c.,
"
is
that they
should be submitted to any regular tribunal who can " punish their crimes, and make them fulfil their contracts
XIV.]

the
219
"
to
Government
and
the
Company's
servants,
are in hopes to be in high stations distant from " Calcutta 1 that they are not permitted to protect them " either from punishment or just claims. The argument " in favour of Zemindars, &c., as to exempting them from
"
"
"who
the Court, which

ously insisted
is
most
relied on,
is
and has been
seri-
on to me,
"
debts at high interest when "regular justice, that the contracting parties never ex" pected that the money could be recovered by course of
"
that they have contracted there was no such thing as
law, that the lender only depended on the contingency "of obtaining a patron who would be able to compel "payment from the borrower, and the borrower at the
"
"same time looked to find as powerful a patron who would secure him from the demands of his creditor." In the letter of March 2nd Impey was so injudicious
which the course taken
as to complain loudly of the effect
by the Council had had on the business of the Court. He said the business had fallen off near a third, and that
the pending causes were disposed of the Court would only have a few Calcutta causes to try. " The " advocates, attorneys, and officers of the Court who have " not already succeeded, will be reduced to a most de" His enemies have laid hold of plorable situation."
these expressions to say or suggest that the Court, in their contest with the Council, were actuated by corrupt motives, the wish of getting business and so power and
patronage.
when
For
my own
part, I
do not see that their
conduct was indirect or improper, though I think the Regulating Act had imposed inconvenient duties upon
them.
^
dare say that
Impey
did wish his Court to

as
the
"
The sense seems to require some such words and lower down " is."
"real hardship of
220
THE COSSIJUEAH CAUSE.
[ch. xiv.
have a goad deal of business, thougli it made no difiference to the judges, who were paid not by fees but by salaries and though Impey truly remarks in his corre;
spondence the less my jurisdiction the greater my ease." I do not know why Impey should be willing to commit aU sorts of crimes in order to have the privilege of disentangling such masses of perjury, confusion, and hopeless bewilderment as are to be found, for instance, in the
"
Patna Cause. Such was the Cossijurah Cause.
It
seems to
me
that
the Council acted haughtily, quite illegally, and most violently, without any adequate reason for their conduct.
In the result their conduct did not do any great harm so far as I know, but this was rather an instance of good fortune than a proof of good policy. A more discreditable spectacle, and one better calculated to break down
all
disciphne and order than that of a governing Council marching troops against the officers of the Supreme
Court, can hardly be imagined.
CHAPTER
XV.
THE SUDDER DIWANI ADALAT.
The
last
matters just described led up to and caused the
matter of importance on which Inipey was impeached. This was his appointment to be judge of the Sudder
Diwani Adalat.
follows
:
The
history of this transaction

to
is
as
One
result of the
Patna Cause had been
throw a
glaring light on the discreditable state of things which existed in the Provincial Councils. They were colourable
imitations of courts which had abdicated their functions
own subordinate officers, a.nd though were nominally subject to an appeal to the Governor-General and Council, the Appellate Court was an even more shadowy body than the Courts of first
in favour of their
their decisions
instance.
The Court never
sat at
all,
though there are
traces of its having at one time decided appeals on the report of the head of the Khalsa or native exchequer,
some
just as the Provincial Councils decided of the Cazis and Muftis.
them on the report
The
actions brought in the
Supreme Court had not
only forced this state of things into notice, but had provided a kind of remedy for it rough, violent, and ill-
222
[chap.
conceived as that remedy was. The remedy, indeed, was so violent that it is easy to believe that it must have gone
far to shut
up the
courts
and deprive the inhabitants of
everything in the nature of an administration of justice. This had in its turn been met by violence of a still
harsher and more
sweeping kind.
sheriff's
The Council had

officers,
marched Sepoys against the
and had
issued a proclamation, the practical effect of which was to confine the jurisdiction of the Supreme Court to
Calcutta,
and
to
warn those who
lived outside of
it
that
they need take no notice of its process. In this state of things it was necessary to do something, and the Council
accordingly adopted a new plan for the arrangement of the business of the provincial councils. It was divided
two parts the revenue business and the judicial business, which consisted in deciding civil suits between Courts were established for these civil private persons.
into
suits
at
each of the towns where the six Provincial

sat,
and afterwards at other places as well. In each there was a judge with the title of superintendent of the Diwani Adalat, an appeal lying to the GovernorGeneral and Council in the court of Sudder Diwani
Councils
Adalat.
A
is
letter
matter
worth reading.
from Împey to Dunning on this It is undated, but must have

in
been written in the spring of 1780. " The corruption and mal-administration
"
the
Adalats, or country courts of justice in which the "members of the provincial councils presided, was so " notorious, that when the resolution was taken to oppose
"
it was thought some appearances of having "justice administered in the provinces. The Government
"
the legal functions of the Supreme Court,
necessary at least to preserve

^
Impey MSS.
XV.]
"
THE SUDDER DIWAXI ADALAT.
223
has therefore abohshed those Adalats and erected

ones, over each of
new
"
"
"
placed one of the junior servants of the Company, who is (which was never
is
which
"
"
expected before of any judge of an Adalat) to take oath to administer justice impartially and accept no
bribes.
The gentlemen appointed judges
are, for
"Patna, John Guichard Booth, made a writer in 1776, " Dacca, Alexander Duncanson, 1772,
"
Dinagepoor, Benjamin Grindal,

"
" " " "
''
1773,
1772,
Burdwan,
Calcutta,
Hugh
Austin,
Moorshedabad, Thomas Ives,
1773,
1771.
Thomas Dugal Campbell
Each of these, except the two last, decide not only on more property than the Supreme Court, but I believe I
than all the Courts in Westminster Hall Mr. Booth gives law to the whole province put together. of Behar. Though the provincial councils had com-
might
safely say
" " "

"
plained of the adalats as parts of their offices which were
"
"
burthensome, responsible, and unprofitable, and professed to wish to be discharged of them, on the separation of them from the councils there was almost a
" " "

"
"
mutiny among them.

of the
Mr. Morse, one of the advocates
to the members of the Council and obtained a promise of being appointed one of the new judges but when this was known to the
Supreme Court, applied

;
Company's servants it raised so general a clamour that " the promise was not adhered to. It will be naturally " imagined, as these men were selected not from the
"
"
"
except One of them, perhaps, in the case of Mr. Campbell. " Mr. Booth, is of the meanest natural parts, is totally
senior servants, that they stood distinguished for peculiar qualifications ; but this is notoriously otherwise,
224

in his
[chap.
"illiterate
"
''
" "
"
" "
" "
"
any Eastern most extravagant, language, and is one of the lowest, I doubt whether in the country. dissipated young men ^ Mr. Otto Ives considered the salary of he is of age. his office, viz. 1,200 sicca rupees per month, so little worth his consideration if restrained from other emoluments, and had so little idea of any other moral restraint from corruption than the oath, that he for some time
own and
ignorant of
hesitated whether he should submit to the taking of
it.
" " "
"
These innovations were made without the least intimato me, or, I believe, tion, public or private, being given The Sudder Adalat, or to any other of the judges. Court of Appeals, which had been discontinued ever since the appointment of the Governor-General and has not yet Council, was at the same time revived, but
Causes of consequence involving rights to zemindaries, &c., are not, as formerly, determined there, the Board at large, simply on the report of an but
"sat.
" " "
"
"
by
called Keeper of the Khalsa (exEnglish gentleman, without any evidence coming before chequer) Records, the members of the Council." This letter is remarkable in many ways. In the first
it
place
regard
place
shows what a miserable state of things existed in In the second to the administration of justice.
it shows that the measures taken by the Council had absolutely disabled the Supreme Court, and indeed In the third place it expressly confined it to Calcutta. the judges in general, and Impey in parasserts that what was intended, and appears ticular, had no notice of
to complain of this as a piece of neglect or disrespect.

1
In
liis
letter to the Council covering the code of civil procedure
which he prepared, Impey acknowledges great obligations to Mr. Ives Let us hope the remark in this letter for his assistance in that work.
was ill-founded.
XV.]

^
225
This state of matters lasted six or seven raonths.

ing minute
" "
On
the 29th September, 1780, Hastings recorded the follow:
The
institution
of
the
new Courts
of
Dewannee
Adalat has already given occasion to very troublesome "and alarming competition between them and the pro"
"
vincial councils,
and too much waste of time at
this
Board.
"
"
"
more than ordinary attention
These, however, manifest the necessity of giving a to these Courts in the
" "
infancy of their establishment, that they may neither pervert the purposes, nor exceed the limits of their
jurisdiction, nor suffer
"
To
effect these points
encroachments upon it. would require such a laborious
"
and almost unremitted application that however urgent

or important they may appear, I should dread to bring them before the consultation of the Board, unless I
"
"
"
" "
could propose some expedient for that end that should not add to the weight of business with which it is
akeady overcharged. " That which I have

a diminution of
it.
to offer will,
"
"
"
By
I hope, prove rather the constitution of the Diwani
"
Courts they are all made amenable to a superior Court called the Sudder Diwani Adalat, which has been commonly, but erroneously, understood to be simply a
" "
"
''
Court of Appeals.
be,
Its province
is,
and necessarily must
not only to receive appeals from the decree of the inferior Courts in all causes
extensive.
It
is
more
exceeding a certain amount, but to receive and revise

The following statement is taken from tlie ease laid by the East Company before their counsel, printed in Reports from Committees The case p. 417 and following, in which the documents are printed. not dated, but the answers of counsel are dated December 19th and
^
India
V, is
20th, 1781.
VOL.
II.
225
[chap.
"
"
"
all tlie
proceedings of the inferior Courts, to attend to
their conduct, to
remedy
their defects,
and generally to
" "
"
form such new regulations and checks as experience shall prove to be necessary to the purpose of their
institution.
office to itself,
Hitherto
the Board
has
reserved
this
" "
tion of
it,
but hath not yet entered into the execunor, I will venture to predict, will it ever
with
effect,
though half of
its
time were devoted to this
" "
single department. troul of some powerful authority held over them, it is " impossible for the Courts to subsist, but they must
" "
Yet without the support and con-
either sink into contempt, instruments of oppression.

"
or be perverted
into
the
"
"
is incapable of delegated to any body of men or to any individual agent not possessing in themselves some
This authority, I repeat, the Board
exercising,
and
if
" "
"
weight independent of mere

little
official
power
it
will
more
effectual.
The only mode which

it is
prove can
devise to substitute for
included in the following
"
motions which I now submit, on the reasons premised* " to the consideration of the Board
:
" "
" "
charge
That the Chief Justice be requested to accept of the and superintendency of the office of Sudder Diwani Adalat under its present regulations, and such
other as the Board shall think proper to add to them their stead, and that on his acit
"
or to substitute in
"
"
ceptance of it he be appointed to judge of the Sudder Diwani Adalat.

"
and
stiled
the
" "
"
"
beg leave to add a few words in support of on different grounds. I am well aware that the choice which I have made for so important an office, and one which will minutely and nearly overlook every rank of the civil service, will subject me to much
I shall
this proposition
XV.]
"

its real
227
popular prejudice, as
tendency will be misunder-
"
"
''
stood by many, misrepresented by more, and perhaps dreaded by a few, I shall patiently submit to this con-
sequence, because I
intentions,
am
conscious of the rectitude of
" "
"
" "
and certain that the event will justify my and prove that, in whatever light it may be superme, true ficially viewed, I shall be found to have studied the interest of the service, and contributed the most
except such as were implied in very doubtful constructions of the Act of Parliament, and the hazards to which the superiors of
the Diwani Courts are exposed in their own persons from the exercise of their functions, has been the
principal cause of their remissness and equally of the disregard which has been in many instances shewn to
their authority.
fidence, nor
will
effectually to its credit, " The want of legal powers,
"
" " "
"
" " " "
They
will
be enabled to act with con-
"
acting when sanction and immediate patronage of the first member " of the Supreme Court, and with "his participation in the
"
" "
"
dare to contest their right of their proceedings are held under the
any man
instances of such as are brought in appeal before him and regulated by his instructions. They very much require an instructor, and no one will doubt the superior
qualifications of the Chief Justice for such a duty. " It will be the means of lessening the distance between
"
"
the Board and the Supreme Court, which has perhaps been, more than the undefined powers assumed to each,
"
the cause of the want of that accommodating temper " which ought to have influenced their intercourse with
"
each other. " The contest in which
we have been
unfortunately
''
engaged with the Court bore at one time so alarming a Q 2
228
"
[chap.
tendency that I believe every member of the Board foreboded the most dangerous consequences to the peace " and resources of the Government from them. They are
"
"
'
at present composed, but we cannot be certain that the calm will last beyond the actual vacation, since the
"
"
"
same grounds and materials of disunion subsist, and the revival of it, at a time like this, added to our other
troubles, might, if carried to extremities, prove fatal. " The proposition which I have submitted to the Board
"
may, nor have I a doubt that
"
"
ment
of
conciliation
with
it will, prove an instruthe Court and it will

;
preclude the necessity of assuming a jurisdiction over " persons exempted by our construction of the Act of
"
" " "
Parliament from
it
it
will facilitate
it
and give vigour to

the
the course of justice,
will lessen the cares of
"
"
" " "
Board, and add to their leisure for occupations more urgent and better suited to the genius and principles of Government nor will it be any accession of power to where that portion of authority which is the Court
;
proposed to be given is given only to a single man of the Court, and may be revoked whenever the Board
shall think proper to
resume
it."
Sir
Eyre Coote
agreed
to
the
arrangement as a
Wheler and Francis objected temporary expedient. to it on various grounds, the most interesting of which may be shortly stated Wheler pointed out that the whole transaction was questionable. legality of the
:
Hastings admitted that the power of the Council to establish the Adalats and the then Court of Appeal was
dependent on "a very doubtful construction" of the Eegulating Act. This impKed that the power to make Impey Judge of Appeal over them was at least equally in doubtful. Impey's acceptance of the office would not
XV.]
itself

remove these doubts.
229
The appointment would not
in principle affect the questions between the Court and the Council, though it might, so far as Impey individually
was concerned,
prevent their clashing for a time." The of the Chief Justice was opposed to the appointment spirit of the Regulating Act, and might introduce English
"
law and English lawyers into Mofussil litigation and put him in a position which "might too much hide the
Government from the eye
of the natives."
Francis objected that the proposed appointment would be and be understood as "a direct contradiction or de"
" natives. In fact," he added, " if it was not intended to " reinstate the Court in the exercise of the jurisdiction
" "
"
sertion of everything we said and did in the case of the "Eajah of Cossijurah," and would be so understood by the
had claimed, and which we had resisted, it is probable they would think that some greater evil was to
it
which
befall them." He argued at length against mixing up the duties of a Com-t of Appeal with those of a Board of He said that the appointment would superintendency.
give the Chief Justice
control
over the rights of the
Company, as, in his capacity of Judge of the Sudder Diwani Adalat, he would be able to submit to the Supreme Court in cases in which the Council on their principles would resist. Besides, the other Judges of the Supreme Court would retain all their powers, and "as the two puisne judges cannot but feel themselves " wounded by this partial selection of the Chief Justice, " and the preference given to his superior qualifications,
not to offer them such cause of offence." Moreover, the appointment would place the Chief Justice in an inconsistent position. He might do some act, as
"we ought
Judge of the Diwani Court, which would subject him
to
230
[chap.
an action before the Supreme Court; or he might, as Chief Justice of the Supreme Court, be called on to issue a habeas corpus for the release of some one whom he had committed as Judge of the Diwani Court. In other ways his duties in his two capacities would clash. The appointment of a single ultimate Judge of Appeal was in itself objectionable, because such a judge would be pecuto corruption by being relieved from the liarly open main checks upon it. Moreover, his liability to removal by the Council might make him "in the hands of a "corrupt Council an instrument of oppression." On the day on which these minutes are dated (24th
October, 1780), the Governor-General recorded a further
minute, in which he recommended that the salary of the office should be Rs. 5,000 (Sicca) per month, and Rs. 600
(Sicca) for the rent of
less
an
office
in
all,
Rs. 67,200 (Sicca),
the rent of an
office, or, say, 6,500/,
a year
but this
matter was adjourned to the next meeting of the Board, ^ Before the question as to salary was decided Sir E)Te
Coote went to Madras as Commander-in-Chief, and there" of upon Wheler and Francis became a majority, and
" "
course, if the question
had been put,

wrote to
^
it
would have
been
lost."
"
" "
"
On the 12th November, Impey
his brother
Notwithstanding the disagreeable contests during which I have made it my duty to support the independence of the Sujweme Court against the aggression of Government, the Governor and Council have solicited me to accept the superintendency of the native Courts of
"
^ This appears from the evidence of Francis before the Committee on the administration of justice in India, See Reports of Committees,
V.
390.
^
Impey's Memoirs,
p. 220.
think
saw the
letter at the British
Museum.
XV.]

and
231
"
Justice,
"
to preside in the tribunal of dernier appeav
called the
Sudder Diwani Adalat.
Such a
trust reposed
under circumstances which bear the strongest " testimony of my having acted, though in a manner " adverse to them, yet under a sense of public duty,
"in
"
me
cannot but be flattering to me.
This
new
office
must
"be attended with additional
labour, but in the hope " that I may be able to convert these Courts, which from " ignorance and corruption have hitherto been a curse,
"
"niary satisfaction
into a blessing, I have resolved to accept it. has been offered to me,
it
No
is
pecuto
but I do
"not suppose
"
is
intended that
my
trouble
go
unrecompensed." There is a letter to Dunning of the same date, and nearly in the same words and he seems to have written
;
to
the same effect to Thurlow.

to
In the
draft
of the
letter "
" To Lord Dunning occurs this parenthesis Thurhiv. I believe that you will recollect before I left
"E. a
" "
conversation I had with you
on an
idea,
if
proposition of this sort might be made to me on my arrival in I., when you approved my accepting."
:
To Dunning he says " As " some opposition from Mr.

"
I understand this
met with
not im-
Francis, I think
it
probable
it
may
be matter of discussion."
in
These
after
letters
show that
November, nearly a month
he had accepted the any arrangement as to expected to have one.
office,
Impey knew nothing

though
of
salary,
he obviously
On
^
the
22nd December, 1780, the proposal about

and each draft seems
to
The MSS.
are drafts,
have served for several
letters,
left
-
passages being inserted which are to be put in some letters and

1780, Francis sailed from India.
out in others.
On December 3rd,
221.
It is singular that
Impey's Memoirs, Mr. Merivale does not give the date of Francis's
232
salary,
[chap.
in the Governor- General's minute of was adopted by the Council; the salary to be paid from the date of the appointment. In ^ April, 1781, Impey wrote a letter to Thurlow in which he says " In January last the Governor-General " and Council settled the establishment of the Judge of " the Sudder Diwani Adalat at Es. 5000 per month. " This I have received, but shall be ready to refund it if
made
October
24tli,
"
"
you or any of His Majesty's Ministers me that it is improper I should retain

2"
shall intimate to
it."
"
" " "
July 4th, 1781, Impey addressed a letter to the Council, saying that he should decline appropriating to
himself any part of the salary annexed to the office of Judge of the Sudder Diwani Adalat till the pleasure of the Lord Chancellor should be known," and at the
On
tions
same time he transmitted to them the Code of Kesulawhich he had prepared.
Late in 1781 the East India Company consulted their counsel. Dunning, Wallace, Mansfield, and Rous, on the
The case stated the " Comlegality of the appointment. " pany's last advices do not inform them what has been
done upon this last motion [the Governor-General's minute about salary of October 24th, 1780], " but it is not " doubted that a considerable salary has been annexed to
the office of Judge of the Adalat." Dunning, Wallace and Mansfield gave a short opinion that the " appointment " does not appear to us to be illegal either as being conleaving India, see II. 202, all his dates, however, are consistent with the one given by Impey the younger. Francis reached St. Helena on March
12, 1781,
"
"
"
Dover
^
at 4 a.m.
was kept there waiting for convoy four months, and reached on October 19, exactly seven years after his arrival at
vol.
ii.
f.
Calcutta.
Impey MSS.
40.
Impey's Memoirs, 222.
Quoting Bengal Consultations.
XT.]
THE SUDDER DIWAITI ADALAT.
233
"
"
trary to the 13 Geo, III, or incompatible with his duty as Chief Justice." Rous was of the contrary opinion. He
considered the appointment with a salary at the pleasure of the Council inconsistent with the object and intention
of the Legislature in passing the Regulating Act, and Mansfield retracted his first opinion three days after
giving
^
it
and came over
to the
view taken by Rous,
On January
Court of
Adalat.
15th, 1782, a motion was made in the Directors at the India House for Impey's
office of
removal from the
judge of the Sudder Diwani
votes being equal, lots were drawn according to the then practice, and the lot was in the negative. 2 On April 30th, 1782, the Court of Directors voted
The
that the Chief Justice should be removed on the receipt

of their letter.
^
On May
Crown
3rd, 1782, the to recall
House
of
Commons
addressed
the
having
accepted
Impey to answer the charge of an office not agreeable to the true
intent and
meaning of 18 Geo. III. c. 63. July 8th, 1782, Lord Shelborne wrote Impey a letter "to signify His Majesty's command that you
On
" "
should take the earliest opportunity consistent with the necessary arrangement of your affairs, to return to this
for
"kingdom
"
the purpose
"
of
answering the
charge
specified in the address
of the
In
the
Consultations
*
for
House of Commons. November 15th, 1782, is
entered
complains that Francis had accused him of compromising the dispute

a
letter
from
Impey,
He
between the Court and the Council by accepting an

''
Eeports of Committees, Impey's Memoirs, 260.
v. app. 2.
*
Ibid.
I
The
letter is printed in
is
Impey's Memoirs,
p. 264-266, but
think
the date given
wrong.
234
office

with a salary.
\
[chap.
He
energetically protested against
the accusation, saying that he had given the Governor the most explicit notice that this acceptance of the new
would not affect his conduct as to the matters in dispute between the Court and the Council. He appealed He added that he to Hastings for confirmation of this.
office
did not conceive that the acceptance of a salaried office by him was opposed to the Eegulating Act as Sir John
" Clavering and Colonel Monson had each been appointed " openly by the East India Company Commanders of the
Forces in India with considerable salaries," after the passing of the Act which applied as much to them as
to him.
"
He
added that Sir
Kobert
Chambers had
accepted the office of Chief Justice of Chinsurah (this was on its conquest from the Dutch) with a salary. As
to his previous letter recorded a minute in which he said Hastings that he did not remember in detail what had passed
to the salary
he referred the Council
of July 6th,
between Impey and himself, but that he thought Impey's account probable, and he stated that his leading motive
in the arrangement he had made, was to put the Provincial Courts under the superintendence and instruction of the
Chief Justice of the Court, and so to avoid complaints He added with an against them to the Supreme Court.
"I will not deny openness which is creditable to him, "that I was pleased with an opportunity of being the
"
" "
"
instrument of placing in a conspicuous and creditable position of this service, and I may add profitable, a man
for
whom
I entertained a sincere friendship
founded on
"
a knowledge of his personal virtues and an acquaintance of more than thirty years." After several other
letters it appears that
on November 16th, Impey formally

office to
made
over charge of his
the Council.
XV.]
235
These, as far as I have been able to ascertain them, are the facts of the only charge against Impey, except the
one relating to Nuncomar, which reflects on his moral character. Abridged to the utmost they are as follows
in order of time, the observation of
to their
which
is
essential
due appreciation.
Court was
In January, 1780, the process of the
In practically confined by armed force to Calcutta. March the new arrangements as to the Adalats were
made, the old appellate system being retained with In September Hastings reslight, if any, modification.
Towards the end of October, Impey On December 22nd a salary was affixed to it. had notice of this in January, 1781. Impey He wrote in April to Lord Thurlow and Wallace, then Attorney, and Solicitor-General, to say he had received the salary, but would not appropriate it to his own use till he heard from them that he might do so, and in he made a similar communication to the July, 1781, Council. In the end of 1781 and the begfinnino' of 1782, the proceedings took place which ended in the letter of
corded his minute.
accepted the
new
office.
recall
dated in July,
1782.
He
held
the
office
till
November, 1782, and then made over charge of it to the Council. Whether he actually did refund the amount
received does not appear, neither does it appear whether Thurlow or any other minister ever gave him the opinion as to the propriety of his doing so for which he asked.
Friends of mine at the India Office have

inquiry and search on these
points,
made every
to
but have failed
discover anything material. The only fact which throws the faintest light upon the subject is that the article of the
impeachment, which relates to

that
Impey ever
this matter, does not allege received the salary voted to him. As
236
[chap.
he did clearly receive it, and as the question is whether he refunded it, this is not of much importance.
What
is
the true view of this transaction
In order
account
to appreciate it fairly, it is necessary to take into
a variety of matters which have never, I think, been considered impartially; and first, it is necessaiy to consider what precisely was the nature of the quarrel between the Council and the Court, and how it was affected by the appointment of Impey to be Judge of the Sudder
Diwani Adalat. There were, as appears from the previous chapters, three main heads of difference between the Council and the Court. They were, first, the claims of
the Court to exercise jurisdiction over the whole native population, to the extent of making them plead to the This was jurisdiction if a writ was served upon them.
often,
of the
though incon-ectly, described as a claim on the part Court to jurisdiction over zemindars as such.
This claim the Council had, in the Cossijurah cause, met The matter had been referred to by armed force.
England, and, as Impey says in one of his letters, answers had been received in the latter part of 1780 to
home that news, in which no disapproval had been expressed of the course taken by the Council. Upon this matter accordingly the conthe despatches which carried
test
had, in October, 1780, practically ended in the victory of the Council and the defeat of the Court.
The second question between the Council and the Court was as to the jurisdiction of the Court over the English and native officers of the Company employed in the collection of the revenue for corrupt or oppressive
done by them in their official capacity. The Company were much dissatisfied with the powers which the
acts
;xv.]
TJIE
SUDDER DIWANI ADALAT.
287
Court exercised in this matter, but they never interfered with them by force or declared them to be illegal. Indeed they could not have done so without contradicting the
express provisions of the Regulating Act. The third question was as to the right of the
Supreme
Court to try actions against the judicial officers of the Company, like the Patna Cause, for acts done in the
execution of what they believed, or said they believed, to be their legal duty. In this matter the legality of the
course taken by the Court was not denied. As I have shown in my account of the Patna Cause, it was afterwards
emphatically admitted. Hastings and the Council knew what a wretched state the country courts then were, and they determined, if possible, to improve them. They tried
in
to
but
do so by the new arrangement made in March, 1780, its failure became apparent by October. Their posi-
tion
was
this
all
beyond
the judicial officers of the Company were controversy liable to the jurisdiction of the
:
The Cazi and Muftis in the Patna Supreme Court. Cause had not even pleaded to the jurisdiction. New
the Patna Cause misfht be moment. This was the point of the brought any quarrel between the Court and the Council, which was
actions as
scandalous as
at
affected
by Impey's appointment to be judge of the Sudder Diwani Adalat. It was affected, as it appears to
me, not by a surrender of the claims of the Court, but by the establishment of an institution which would take away the necessity, for such actions as the Patna Cause,
by giving the persons

effectual remedy. "
"
aggrieved
a better
and more
Establish," said Hastings in effect, a proper system of superintendence over the Diwani
"
Courts, give
"
them
regulations
may be
properly
conducted,
by which their operations and make the appeal
238

their
[chap..
'from
"
"
decisions
reality,
and
the
scandalous
state
of
things
broftght
to
"
Cause will be ended, and we Patna Causes."
light shall
Patna by have no more

the the
Thus
of
the three
causes of quarrel between
Council and the Court, the one relating to the general jurisdiction of the Court over the natives was closed by
armed
force
revenue
officers
the one relating to the oppressions of the was left untouched the one illustrated
;
by the Patna Cause was in the main removed by the appointment of Impey to the judgeship of the Sudder Diwani Adalat. This statement of the matter shows that after the establishment of the Sudder Diwani Adalat cases of various kinds might come before Impey as Chief Justice of the Supreme Court, by which the interests of the
Company might be seriously would be actions against the
affected.
Such, for instance,
local councils for oppressions
It was less likely that acin collecting the revenues. tions should be brought against the Zemindars as such
after the Cossijurah case,
and unlikely that actions should
be brought against local judicial officers, but it could not be said to be impossible. As soon, therefore, as Impey
accepted the position of a servant
office
to
the Company,
their pleasure, he did undoubtedly holding if it is too much to say that he forfeited, his weaken, judicial independence as Chief Justice of the Supreme Court. He exposed himself to a temptation to which no
at
judge ought to expose himself. He put it in the power of every suitor dissatisfied with his decisions to say they
were not unbiased by his relation to the Company, and this I think was wrong, though I do not think it was I do not think, that is, that there was actually corrupt.
XY.]

tacit
239
understanding between Hastings and Impey, that Impey should alter his judicial conduct in con-
any
I think they both regarded the arrangement made as one which, on public grounds, was highly desirable but I also think that they
sequence of his appointment.
overlooked the surpassing public importance of preserving the independence of the judges, and of avoiding anything which could excite a suspicion of it in any
reasonable mind, and this the appointment of Impey to be judge of the Sudder Diwani Adalat, with a large salary to be held at the pleasure of the Company, could
hardly
fail to do.
not, I think, be said of his acceptance of the office without the salary. If he had accepted the office, but refused to accept the salary, unless and until
The same could
express sanction to his doing so was received from a competent authority in England, I think his conduct
would have been

prepared
to
free
from
all
reproach, but he was not
go this
length.
The
facts already given

salary,
show that from the
first
Impey expected the
and
that he did actually receive it, though he said from the first that he would not appropriate it to his own use,
if
ministers objected. There are also in his letters which show that it was a matter passages of very great importance to him. In a letter to Dunning,
the English
written apparently in March, 1780, he says, " Our salaries " are in arrear," and " when application is made for
" "
them the answer

treasury."
^
is
that there
is
no money in the
is
^
He
adds that his health
precarious,
once or twice a year subject to violent attacks of cholera " morbus, here called the inort de chien, and to other disorders." This is an early instance of the mention of cholera, though Impey can hardly
"I am
have had " violent attacks" of the disease which we know by that name once or twice a year for five years unless he was marvellously tough.
240
[chap.
begs for leave of absence to regain it, and concludes, " but my finances are such that I must run all risks
" "
rather than resign my office. having a seat in Council would not only forward my return, but I am " He had a large and sure would be of public utility."
My
His son, the author of the memoirs, increasing family. was born in India, in 1780. In a letter dated 16th
August, 1780, Impey says,
"
"
"
Though
I live with the
greatest attention to economy, which is sharpened by my wish to return to my family and friends, so many
"
contingent
"
expenses
for
sickness
and other causes
up more than 3000 in any year." If he had laid up 3000 a year from 1774 to 1780, his savings soon after he wrote this letter, and at the date of the appointment, would have been only 18,000 or say with interest 20,000; at the same rate they would in 1782 stand at ^ The judgeship was Ks.5000 a month, which 26,000. the sicca rupee at 2s. 2d. would be 6500. The taking whole of this Impey would be able to save, and in two years it would amount to 13,000, which would by the end of 1782 make to his savings the difference between 26,000 and 39,000. Under such circumstances it would be silly to doubt that the salaiy was an object of
"
continually arise that I have not been able to lay
the
first
importance to him.
It might, in fact,
make
the
difference to
him between
ease and narrow circumstances
on his return home.

^
He knew
he ought not to take
it.
year, for
salary,
Besides there was an allowance of Es. 600 a month, or say 720 a an office. This James Mill (iv. 240) treats as an addition to the
"under the denomination of rent for an office." In a memorandum Impey says this money "has been applied to the purpose for " which it was appropriated by the officer who received it, without any
"interference of mine other than the
official
signing of the draft for the
"receipt of it."
XV.]
241
He could not bear to put it out of his power. He took a middle course, which certainly does not wholly justify his conduct, but which sets it in a wholly diti'erent light
If he stood. had simply accepted the salary, I should have regarded his conduct as improper and a justification fur his recall, though I should not have described it as corrupt and I cannot say that it was actually illegal, for the Regulating Act cannot be said to forbid it in terms. If he had refused the salary, either absolutely or till the
it
from that in which
would otherwise have
measure was received,

fully
justified.
express sanction of the English ministry for the whole I should have said his conduct was
The
course
which he
actually
took
appears to me not to amount to an absolute justification It of his conduct, but in a great measure to excuse it. entitles him to the full benefit of the remark that in
he did genuine public spirit was a concurrent motive with the desire to increase his savings. In order to understand the force of this, it is to be said
Avhat
that apart from questions personal to Impey there is every reason to think that the step which Hastings took
in this matter
was eminently wise and
useful,
and was
indeed the only practicable way out of the unhappy quarrel into which the Court and the Council had
been drawn by rash and ignorant English legislation. The state of things brought to light by the Patna Cause was one for which, as I have already pointed out, the true and only possible remedy was a stringent system of
supervision and appeal combined with legislation specially adapted to the wants of the country and the people.
The adoption and development

the
made now are, Indian Courts and Indian law what they
of this system has
and though there are great defects in the system, defects inseparable from the nature of the Indian Empire, no VOL. II. R
242
THE SUDDER DIWAXI ADALAT,

is
[chai'.
one who
to it
at all acquainted with the subject will deny conspicuous merits. Of this system Hastings laid
the foundation by the appointment in question, and it is remarkable that his idea of putting the Chief Justice of the Supreme Court at the head of it, though laid aside for a considerable time in consequence of the objections
to it which I have already stated, was longafterwards resumed and acted upon by the Government with the happiest effect. Impey, under the appointment
which Macaulay has stigmatised as I shall show immediately, ignorantly and unjustly, performed the very
same functions as Macaulay himself performed, when, more than fifty years afterwards, he drew the Penal He also performed the same functions as Code.
Parliament intrusted in 1861 to the Supreme Court when, by the High Courts Act, the Supreme Court was amalgamated with the Sudder Diwani Adalat and formed
and
the present High Court. Hastings, in short, foresaw laid the foundation of the policy by which Indian
legislation
was put under the direction of the Legal by which the superintendence of the Mofussil Courts and an appellate jurisdiction over
Member
of Council, and
them were
vested in the
for
High Court
if
.It
would,I believe,
that policy had been adhered to instead of being postponed as to part for fifty, and as to the rest for nearly eighty years.
have been well
India
The Governor-General and
Council, the nominal Court
of Appeal, were utterly unable to discharge their duties, and made over what little they affected to do to the
Superintendent of the Khalsa or native Exchequer. The duty was one which no one could discharge
properly except a lawyer of experience and energy, and Impey was the only available person who answered that description, and between whom and
XA'.]
THE SUDDEPt DIAYAXI ADALAT.
243
the Supreme Court a dashing of jurisdiction was not

to be feared.
There were no doubt great objections to the measure. was doubtful. It put Impey to some extent in a false position, but it was the only way in which it was possible to lay the foundation of anything like a
Its legaHty
regular and efficient administration of justice in India. As to its legality I may just observe that the legislative
powers of the Governot-General and Council at this time were derived, if they existed at all, from the indirect recognition in the Regulating Act of the powers which the East India Company had obtained from the Great Mogul and the Subadar of Bengal, who no doubt might
if they pleased have legislated, but this power was doubtful to an extreme degree. The whole transaction
appears to
me
to be one
which should be judged of
rather by its general expediency and the good faith of the parties than by its correctness according to
law,
for
English which in truth provided little more than materials declamation and recrimination upon constitutional
questions arising in India. One or two points in the scheme require explanation. Francis inveighed against the union of the powers of a
Board of Superintendence with those of a Court of Appeal. Superintendence was in fact as urgently wanted as appeal, if not more urgently. Laziness,
the impatience and wânt of method are laxity, faults of which young and inexperienced men, who are
made judges without the
least tincture of legal
know-
ledge in huge districts of which they know the language Even now an imperfectly, are most likely to be guilty.
Indian judge is subject to infinitely less stringent criticism from the pleaders and the newspapers than an
E 2
244
[ciiAr.
English judge.
In Hastings's time and long afterwards
he was under absolutely no such checks. As matters now stand he has to account to the High Court for practically the whole employment of his time. He makes returns as to the number of cases he has
disposed
of,
the
amount
of his arrears
and many other
particulars.
who examine
Officers are provided in every High Court these returns, and bring to the attention of
the Court anything at all peculiar which presents itself in them. The papers may be called for in any particular
case, explanations required,
and reproofs administered
if
any
This sort of irregularity or impropriety is detected. from Hastings's minute to have been as system appears
old as the
institution of
also
the Sudder Diwani Adalat, not to
though
it
appears
have been practised.

passages
in his cor-
Impey appears
respondence to
from
several
have discharged that duty, though of course he cannot have discharged it in anything like the elaborate (possibly over-elaborate) way in which it is
discharged at present.
this matter
Impey's correspondence is full of assertions that in he was actuated by public spirit, and I have
no doubt that this was true. In India work is the one To be substantially the lawgiver for a pleasure of life.
great empire, to stand at the head of a great system for the administration of justice, and to try to make it
answer the purpose for which it was designed, were objects which would naturally affect the imagination and stimulate the ambition of any man who had the opporMy own experience has tunity of attaining them. enabled me to enter more fuJly into Impey's feelings on
this matter
than almost any one else, though Lord Macaulay, strangely enough, had the same experience.
XV.]

of us in our turn,
245
fifty- two
Each
I at
he at an interval of
and
an interval of eighty-seven years, had to discharge some of the most characteristic and important of the
functions conferred on
Impey by Hastings. There are many expressions in Impey's letters which show how strongly he felt the attraction of duties
supremely attractive to an energetic, ambitious man, whether paid for them or not. Being in India, I think
probable that, if requested to do so, Impey would have taken the office without a salary. As it was, he took it taking the chance of not being paid at all in the
it
first
instance,
and announcing his readiness afterwards
to return his salary.
following passage in a letter to Dunning, dated November, 1782, appears to me both sincere and He could not have written it if when he affecting. wrote it he knew that he had in his pocket nearly
1st
The
13,000 produced by his salary, "This is real truth. " I have undergone great fatigue, compiled a laborious " code, restored confidence to the suitors and justice and
" " " "
regularity to the courts of justice, and internal quiet of a great empire, without
settled
the
any reward,
and
tation,
my recompense shall have lost my office, repuand peace of mind for ever." "Whatever may have been his motives, his acts speak
for
In the course of the eight months themselves. between the end of October, 1780, and July, 1781, Impey prepared a set of judicial regulations, which formed a new code of procedure, founded on the earlier regulations and including many new ones, which he
for
proposed for adoption.

codifiers, for
Ho was thus the first of Indian which reason, amongst others, his successor might have had a little mercy upon him. The Regu-
246

1781 are now hard to
find,
[chap.
is
latious of
but there
is
a copy
at the India Office Library.
Impey's code
tion VI. of 1781.
It consists of ninety-five sections,
Regulawhich
fill thirty-eight folio pages, and repeals all other regulations then in force relating to civil procedure. It is not
a work of genius like Macaulay's Penal Code, and the

length and elaboration of its sentences would jar upon modern Indian draftsmen, but it is written in vigorous,
of
manly English, and is well arranged. It gives the effect some regulations which were j)assed in 1780 and the
^ by which eighteen Courts were each of which except four was a judge
earlier part of 1781,
established, in
independent of the revenue authorities. In four the collector was to be judge. The Regulation defines the local jurisdiction of the Courts and their jurisdiction
over causes.
It
provides for the
limitation
of suits,
It lays giving in most cases a term of twelve years. down a system of procedure which contains a greatly simplified version of the old English special pleading.
of trial, and contains regulaand appeals, besides many other matters. It remained in force for six years, when it was repealed, but re-enacted, with amendments and additions,
It provides for the
mode
tions as to arbitrations
by Regulation VIII. of 1787.
From much experience of such work I am inclined to think that the preparatioa of such a regulation between October 1780 and July 1781 would fill up pretty fairly a
good deal of the leisure left to a judge whose Court appears to have risen habitually at 1 p.m., and who had
^
Midnapoie,
*Cliibi'ali,
Patna, Duibungah, Taiijepoie,

*
Boglepore,
(Chittagong), Morely, Burdwan, Calcutta, Murshedabad, Masey, Rajepaut, Sultanoe. In those marked with a * the collector was to be judge
Rungpoi'e, Nattore, Dacca, Backergunge,
Islamabad
XV.]
THE SUDDEE DIWANI ADALAT.

it
247
other duties as well, but I do not think
would require
any extraordinary whether any one
doubt, however, then in India, except possibly Chambers, could have done it. It must have been an immense comfort and excellent guide to the new judges.
else
effort.
should
Macaulay's account of the quarrel between the Court and the Council deserves to be carefully noticed. It supplies a strong instance of the danger of breaking
down
the boundary between history and romance. It is of course admirably written short, bright, striking, and entirely free from Indian names or other non-conductors
of sympathy. It says not a word of the Patna Cause, the Cossijurah Cause, or Touchet's petition. It does not even mention the Sudder Diwani Adalat or give a word
of explanation as to the nature of the office to
which
Hastings appointed Impey.

horrible
It
is
a gloomy picture of
mysterious,
oppression,
causeless,
purposeless,
and yet so tremendous that it almost justified the course taken by Hastings of buying off by an enormous bribe the infamous tyrant by whom it was carried on. The
objection to it is that it is absolutely false from end to end, and in almost every particular, as the following instances will show.
After stating truly that arrest on mesne process was the

first
its
step in most civil proceedings, he expatiates on abuses. He says at great length that to a native woman of rank it is an intolerable outrage that her
apartment should be entered by strange men. He then adds " To these outrages the most distinguished families
:
" " of and Bengal, Behar, and Orissa were now exposed " he says that the effect of the attempt which the " Supreme Court made to extend its jurisdiction over
;
"
the whole of the Company's territories
"
was
like
an
248
[chap.
" "
" to empower any one by merely attempt in England that a debt was due to him, to horsewhip a swearing
general
" "
officer, to
ladies
in
the
put a bishop in the stocks, to treat way which called forth the blow of
"
:
He then goes on as follows Tyler." reign " of terror began, of terror heightened by mystery, for
Wat
"
even what was endured was

to be anticipated
less horrible
than that
next
It
"
"
"
which was anticipated. from
No man knew what was

this strange tribunal.
came
from beyond the black water, as the people of India with mysterious horror call the sea. It consisted of "judges not one of whom was familiar with the ways
"
"
of the
millions
over
"
authority.
"
Its records
whom they claimed boundless were kept in unknown characters.

to all this is that the
Its sentences
were pronounced in unknown words,"
The general answer
Supreme
Court never did claim any such general jurisdiction as is Practically, the most important of its claims alleged. was jurisdiction over the collectors of the revenue and
officers of
Company.
the Provincial Courts, as being servants to the I have diligently read from end to end the
whole Report of Touchet's Committee and every paper in each of its four appendices, and I affirm that it
contains no evidence at
as Lord
diction
all of
" any such reign of terror
"
Macaulay imagined. The nature of the jurisclaimed by the Court protected women from being sued before it. They could not be servants to the The only writ against a woman was the Company.
writ against Naderah Begum, and that was in the Provincial Court at Patna, and not in the Supreme
Court.
How
upon, I will
far zenanas were incidentally trespassed examine immediately.
To pass
to the details.
What
sense
is
there in the
XV.]
THE SUDDER DRVANI ADALAT.
249
racters
language about the black water and the strange cha? Did not Hastings and the East India Company
as well as the judges
like
?
come from beyond the sea

of
their
Were
of the
not most of the records of the

orders
?
Company kept, and most

those
given, in
English,
Supreme Court
When
and where did the Supreme
Court claim boundless authority over the natives ? Its claims were quite distinct, but they cannot be stated in a picturesque way.
Mahratta invasion had ever spread through the province such dismay as this inroad of English lawyers. " All the injustice of former oppressors, Asiatic and
"
"
"
No
European, appeared as a blessing when compared with
the justice of the Supreme Court." In 1779 the Mahrattas had been kept out of Bengal for a considerable time, but ^ from 1742 to 1750
" "
"
these merciless hordes of miscreants devastated
the
country
"
till
to the
southward of the Ganges from October

'
June
to extort their
chout.'
"
One
incident of
these invasions
may
be mentioned to show
is just.
Macaulay's statement
how far The then Nabob Aliverdy
treacherously murdered many of their chiefs. " Thereupon the Mahratta army wreaked their venge" ance upon the unoffending inhabitants. The}' ravaged " the country with fire and sword, cutting off ears, noses, " and hands, and committing countless barbarities in the
"
"
Khan
search of spoil. The wretched Bengalis fled in shoals across the Ganges to take refuge or perchance to perish " in the hills and jungles to the northward of the river."
What did the Supreme Court ever do remotely comparable to this ? How many imprisonments on mesne process
would
it
take to create more terror than the mutilation,

^
Talboys Wheeler, p. 267.
250
[cHAr.
torture,
and robbery of hundreds, perhaps thousands, of innocent peasants ?

" " There were something more specific. instances in which men of the most venerable dignity,
To come
to
"
" "
persecuted without a cause by extortioners, died of rage and shame in the gripe of the vile alguazils of
Impey."
The only matter to which this can refer is the case of the Cazi Sadhi. He was one of the defendants in the
Patna Cause, and was taken in execution after bail had been given for him by the Company. He died on a boat on the Ganges on his way to Calcutta whilst under a guard of Sepoys. He may have been hardly dealt with, but to say that he was pei'secuted by extortioners
without a cause
is to allege that the judgment in the Patna case was wrong, and of this judgment Macaulay takes no notice at all. The Cazi was sued for gross and corruption, which the Court upon an oppression elaborate inquiry thought he had committed.
Macaulay does not suggest that there was even a I am confident he knew question on the subject. of the Patna Cause, except what he read in nothing
At all events, the Sepoys who Mill, who misled him. had charge of the boat in which the Cazi died were not
the
"
vile alguazils of
all.
Court at
or officers of the Supreme They were a guard put over him by the
"
Impey
Dacca Council, which bad given bail for him, and which was specially directed to treat him as kindly as might be, which it was anxious to do. Here we see one cazi turned into an indefinite number " of men of the most venerable dignity " a man found
;
guilty
by
widow
legal process of corruptly oppressing a helpless into men of most venerable dignity persecuted
XV.]

;
251
by extortioners without a cause and a guard of sepoys, with which the Supreme Court had nothing to do, into " vile âlguazils of Impey." This indefinite way of writing " there were instances " is Here is another singularly unfair and inaccurate.
instance of
"
it
:
The harems
of noble
Mohammedans,
sanctuaries
"
"
" "
respected in the East by governments which respected nothing else, were burst upon by gangs of bailiffs, and
there were instances in which they shed their blood in the doorway while defending, sword in hand, the sacred
"
apartments of their women." 1 have carefully gone through the whole of the evidence in the report and appendices referred to, in
order to test the truth of these eloquent generalities,
and
2
I find as follows
of
to
There was one instance in which one Mohammedan some rank thought that his friend's zenana was likely
in
be broken open, and stood in the doorway sword to defend it. The house, not the zenana, was broken open, and a fray took place in it, in which
hand
the father of the
Mohammedan
left his
in question
was en-
dangered.
The son
position in the passage to
1 The word "alguazil" Supreme Court a kind of
is, of course, used to give the bailiffs of the flavour of the Inquisition. It is a singularly
infelicitous expression, though,
"
"
Alguazil
in
is
"
al," the,
oddly enough, it has an Eastern origin. and " guacir," the Spanish spelling of the Arabic
In Spanish
it
word which we know
as vizier.
means as
constable does
English the highest and also the lowest officer of justice. See tlie " " Dictionary of the Spanish Academy, alguacil and Littre "alguazil." ^ See the Dacca Appendix. In this case Macaulay was misled by Mill (iv. 236), who had read the papers in the Dacca Appendix, and artfully gave an account of them not literally false, but so arranged as to produce the exact false impression which Macaulay received, generalised, and made popular.
252
[chap.
the zenana, took part in the fray, and was hurt. It does not appear that the zenana was broken open, or that any attempt to do so was made.
There
is
some though not much foundation

^
for the
introductory part of the statement. broken into by a bailiff, and a slave girl
One zenana was
was wounded, and
the Advocate-General suggested that the matter should be laid before the Court, which would, if applied to, ^ The Rajah of Cossijurah's zenana is punish the bailiff.
have been entered, but no detail is given. these three cases, and no other materials which I can discover, is founded all the eloquence about Wat
said to
Upon
Tyler, a reign of terror, and the cruel humiliation of all the nobility of Bengal. This way of generalising particular incidents is bad
enough, but the following passage
is,
1 think, worse.
itself firmly between the The Chief-Justice tyrannical tribunal and the people. " The Governorproceeded to the wildest excesses. " "
"The Government pkced
General and
all
the
members
of Council were served
"
with writs calling on them to appear before the King's This was "justices and to answer for their public acts.
"
too
much.
call, set
" " "
the
Hastings, with just scorn, refused to obey at liberty the persons wrongfully detained
for resisting the of the sheriff's officers, if necesoutrageous proceedings " sary, by the sword."
by the Court and took measures
This passage implies that Impey individually caused the Governor and the members of Council to be " served
with writs."
Neither Impey nor the Supreme Court

^
did anything of the kind.

1
They
^
expressly refused to
General Appendix, No. 20.

3
Cossijurah, Appendix, No. 7. Ibid. No. 19.
XV.]
THE SUDDER DIWAXI ADALAT.
253
issue
cillors,
an attachment against the Governor or the Counbecause they were by the Regulating Act exempt
from the criminal jurisdiction of the Court. ^The writs with which Hastings and the Council were served were
by Cossinauth, the plaintiiBf in the action the Rajah of Cossijurah, for preventing him by against armed force from compelling the Rajah's appearance.
writs issued
Neither Impey nor the Court had any right to refuse to issue a writ on such a claim.
The passage as to Hastings's "just scorn" at being sued for his public acts is remarkable. Surely it is one of the fundamental principles of English law that a
man who
abusing
holds a public
office is liable to
an action
for
its
powers.
That Macaulay of
all
men
should
deny
this is wonderful.
It is not true
that any one arrested by the Court
justly or not, in this matter
by Council. One person only Naylor, the Rajah of Cossi was imprisoned, and that was conjurah's attorney
for
was
set at liberty
-the
tempt in not answering

never set him at liberty.
interrogatories.
''The Council
to
They authorised him

is,
answer
the interrogatories in order to regain his liberty.
The climax
of injustice
I think, reached in the
passage which follows the one just noticed. After saying " that Hastings took measures for resisting the outrageous
"
" " "
proceedings of the sheriff's officers, if necessary by " But he had in view the sword," Macaulay adds another device, which might prevent the necessity of an
:
appeal to arms.
pedient, and he
^
He was
is
seldom at a
well.
loss for
an exin
"
knew Impey
The expedient
see
^
A copy of the plaint No. 24.
printed in Cossijurah, Appendix, No. 22, and
Cossijurah, Appendix, No. 23.
254
"
" "
"
THE SUDDEli DIWANI ADALAT.
[chap.
was a very simple one neither more nor less than a bribe. Impey was by Act of Parliament a judge independent of the Government of Bengal, and enthis case
titled to a salary of 8,000^.
a year.
Hastings proposed
" " " "
to
make him also a judge in the Company's service, and to give him in that capacity about 8,000/. a year
more.
It
was understood that in consequence of this salary Impey would desist from urging the high " pretensions of his Court. If he did urge those preten" sions, the Government could at a moment's notice eject " him from the ofBce which had been created for him. " The bargain was struck Bengal was saved an appeal " to force was averted. The Chief Justice was rich, quiet, " and infamous." This charge is inconsistent with the dates, and asserts imaginary facts. No appeal to force was averted. On the contrary, such an appeal was made. The sheriff's officers actually were resisted and taken prisoners by two
new
Impey never companies of sepoys in January, 1780. did desist from urging the high pretensions of the The Council, by military force, restrained the Court.
jurisdiction of the Court, and by a proclamation to all the natives informed them that they were at liberty
to set its process at defiance.
No
bargain was struck.
The Council and the Court
respectively
had done their
very worst by each other nine months at least before any sort of offer was or could be made to Impey. Moreover, the Court was powerless to do anything unless
it
was
set in
motion by a
suitor,
but after the course
taken in the Cossijurah Cause, who would venture to sue any one whom the Council had taken under its
The plaintiff could not serve his writ. protection ? could not execute his judgment if he got one.
He
Nor
XV.]
THE SUDDER DRVANI ADALAT.
255
was any redress to be had against the individuals by whom he was prevented from exercising his legal
rights.
The Governor-General and his Council had committed themselves to a forcible resistance to an}^
a,ttempt
liable in
make themselves or their inferior agents damages to any one who suffered by their interto
ference.
This conduct was persisted
in,
and was never
modified in the smallest degree. In that state of thincjs it is difficult to see what the Court had to give for which
was wôrth the Council's while to offer a bribe. Hastings wanted nothing from Impey. There was nothing to be got from him except an admission that the Council had been right in their difference and the Court Vv^rong, and this Hastings did not ask for, did not get, and did not want. If he had got it, it would have been useless.
it
CHAPTER
XVI.
THE LUCKNOW AFFIDAVITS.
The
last
charge in the articles of impeachment against
Impey related to the taking of certain affidavits. The charge is as verbose and declamatory as the others, though The effect of it is that it fills only two large folio pages. Impey
conspired with Hastings to plunder two princesses
called the
of Oudh, and that, without any legal in aid of that conspiracy, took certain depoauthority, he, sitions and affidavits intended to his knowledge to be used
Begums
by Hastings
''
as "the foundation or pretext for seizing the effects and treasures of the said princesses."
This accusation
is
connected
with the
against Warren Hastings
called the Benares charge
two charges and
the
them in this place, though would form an important part of a history of the they
impeachment of Hastings. them were these
:
Begum charge. I cannot go into either of
The leading
facts relating to
a July 7th, 1781, Hastings left Calcutta on journey which was to compel to Benares, one of the objects of
1
On
Narrative,
p. 1.
take Hastinf:js's Narrative, published at Calcutta
in 1782,
this
and much referred to on his impeachment, as the authority for The truth of its main statements is common ground. paragraph.
CH. xî.]
257
Cheyte Sing, the Rajah of Benares, to pay a large sum money to the Company and to render military aid, which Hastings alleged to be due from him. Hastings
of
14tli August, and there met and conferred with Cheyte Sing, upon whom he made demands with which Cheyte Sing did not comply. On the 15th Hastings put Cheyte Sing under arrest, placing upon him a guard of two companies of Sepoys. The Sepoy guard was attacked by an armed mob and destroyed, and Cheyte Sing made his escape. Hastings alleged that
^
arrived at Benares on the
this led
to
an insurrection throughout Cheyte Sing's

^
dominions.
A considerable force collected at Ramnasrur,
and on the 20th August inflicted another defeat on certain

attacked them imprudently. ^ Hastings upon this retired from Benares to the fort of Chunar, and, * as
Sepoys,
who
he alleged (though this was afterwards disputed) the insurrection extended to the territories of the Begums of,
Oudh, the mother and grandmother of the Nabob Vizier, Oudh, and was promoted by them. Hastings remained at Chunar for some weeks, in the course of which the ^ Nabob Vizier of Oudh arrived. ^ Whilst he was there military operations were carried on against
or ruler of
Cheyte Sing, which were nearly ended by September 21, ^ though the fortress of Bidjeghur, his chief stronghold, was
not surrendered
^
till
November
10th.
In the meanwhile a treaty was made between Hastings and the Nabob Vizier, dated September 19th, 1781, by
which, amongst other things, the Vizier was authorised to resume the Jagheers, especially those of the Begums.
^
P. 15.
2
5
i.
pp
29, 30.
6
Pp. 30-32.
7
Pp. 36, 37.
p_ 42.
Pp
43.50.
p. 53
App. Pat. Begums.
p.
3,
and
see pp. 8, 9 for Hastings's
remarks on the
VOL.
II.
258

the
it
[chap.
was alleged that the Nabob Vizier to pay Hastings strongly pressed a large balance due from him to the Company, and that the Vizier explained that he could do so only by extorting the Begum's treasure. It was further alleged that under this pressure treasure was extorted by cruel and oppressive proceedings, which began on January 12th, 1782, by the occupation of Fyzabad, where the Begums lived. Of the events which took place between August 14th and the end of the negotiation with the Nabob Vizier, and the suppression of the alleged rebellion of Cheyte Sing, Hastings drew up the narrative to which I have
referred.
Nothing appears on the face of But the treasure of the Begums.
treaty
about
He
observes that
it
contains in effect but the

of 57
history of one month. and is followed by an

parts
It
consists
appendix divided documents about Cheyte the treaty with the Nabob Vizier, and the estaSing, blishments of Benares the second of a long series of
the
4to pages, into three
first
consisting of
documents, orders, and correspondence relating to the claim on Cheyte Sing and the third consisting of affi;
davits, the taking of
which was the crime with which
Impey was charged.

The whole
the
most
minute
history of these affidavits detail upon the

6th,
Hastings.
witness,
On May
was gone into in impeachment of 1788, Impey was called as a

(for
and was examined, or rather cross-examined
he was treated as a hostile witness), for a long time, ^ apparently by Sheridan, in an offensive tone, and, I
think, unfairly, as questions were put to
1
him on documents
P. 53.
is implied by a statement in the History of the Trial, i. p. 53, " Mr. Sheridan then read a passage," &c., and by references in Sheridan's
"
This
XVI.]
259
which he was not allowed to see, and as his answers appear to have been wilfully misunderstood and distorted. This was the more discreditable, because at the time the question whether Impey should or should not be imso that the subject
peached had not been decided by the House of Commons, was one on which he might, had he
He did answer, all. with complete unreserve, and with a remarkable however, combination of prudence and spirit which gave him, as it appears to me, a complete triumph over Sheridan.
chosen, have refused to answer at
The questions are asked in such a disjointed way, and with such a total neglect of the order of time, and are mixed up with such a multitude of paltry captious quibbles upon petty matters of detail, that it requires much
patience to get from them a connected story in order of time. When properly studied, however, the matter is
perfectly clear,
^
and
is
as follows
The Governor-General and Council having requested

to visit the Provincial
Impey
Courts of Justice, he
left
Calcutta for that purpose ^ in July. At Monghyr (on the ^ Ganges, about eighty miles below Patna), he received news from Hastings of the disturbances at Benares,
which took place on August 21st. He went on to Patna and stayed there some days " to give a confidence to the people," who were much alarmed and were leaving the
speech on the Begum charge. the questions were asked.
^
The shorthand notes do not say by whom
Shorthand notes, p. 647. The evidence runs over thirty-two folio pages, from 622 to 651. The questions were asked so stupidly, or perhaps to in order of time liy design so confusedly, that the first matter referred
The difiBculty of getting this mass the passage in the text at p. 647. of matter into chronological order is some sort of palliation for the way in which James Mill has dealt with it.
is 2
3
This date
P. 647.
is
taken from Impey's Memoirs,
p. 238.
S 2
260
THE LUCKlSrOW AFFIDAVITS.
[chap.
place.
letters from was quieted and country Hastings saying pressing him to come up to Benares. On this he says "The last letter I received from Mr. Hastings informed " me that the country was quiet and pressed me to come " up, and every letter I received from Mr. Hastings was " more and more pressing to me to come up on account, " as I understood, of the exigencies in which he then was.
He
afterwards received
further
that the
"
During the time I resided in Calcutta, as I held a very "high office, I did not think my duties to the State " always satisfied simply by the execution of my office.
"
"
"
"
"
"
any otherwise I thought it and there are many and many inmy duty stances in which I have done it. This is one of those cases which I thought called on me, and for that reason
to
If I could serve the State
do
it
attended Mr. Hastings at Benares, conceiving the difficulty he was in was the reason of his calling me
I
" "
there
to
consult with
^
though
"
"
it is
the
office
me what he should do and thrown out as degrading to me bearing of Chief Justice of Calcutta, that I con;
descended to be the private secretary and amanuensis " of Mr. Hastings, acting from the impressions I did I
"
"
"
"
^
very differently. I felt that in the situation I in, it was a duty incumbent on me to give every assistance I could to Mr. Hastings, and every assistance
felt it
was
to the State,
and with that view
went up
to Benares."
He saw Hastings at Benares and was with him there some He adds ^ " Mr. Hastings acquainted me that he days.
" "
was
at that time writing a narrative of the proceedings
of the revolution at Benares.

^
He
acquainted
me
with
This
is
in reference to the language of the article of

3
impeachment
against him. 2 P. 622.
p, 624.
XVI.] "
"

I
261
the main circumstances.
then told him that as he

in the event,
was a party
so
much engaged
and the
"
disposition of those in power at that time in England " was not favourable to him, I doubted whether his single
"
"he asserted
"
"
narrative would gain complete credit to the facts which I therefore advised him to authenticate ;
The only those facts as strongly as he possibly could. of doing that that suggested themselves to me, means
were the having them verified by affidavit. He then asked how it was to be done, and demanded of me
" " " "
whether I would take such

assented."
affidavits,
to
which
It was at first proposed that Impey should go to " Allahabad as a convenient place for the purpose, but in " the course of that conversation Mr. Hastings having
" " "
described the
Begums as being in actual
rebellion, I told
Mr. Hastings that if that was thought their intervention was an offence to the Government of the
the fact I
"
"
Nabob
persons
"
{i.e.,
undoubted
of Oudh), and that he had a most right of seizing the treasures of those
"
"
"
"
who were employing them against his state. Mr. Hastings had told me that he thought the welfare
of the country
committed
to his charge,
and his own
" " "

" "
reputation depended upon the treaty of Chunar being carried strictly into execution that he was apprehensive
;
the mildness of Mr. Middle ton's temper would prevent him from urging the Nabob effectually to carry it into
"
" "
execution he therefore proposed to me instead of going to Allahabad, where it was first intended, that I should go to Lucknow and besides taking the affidavits
; ;
"
"
was to acquaint Mr. Middleton with the conversation which had passed between Mr. Hastings and me with regard to the Begums, and urge him to see the treaty
I
262
"

Chunar
carried
[chap.
of
into
execution.
That was
the
I
"
"
occasion of
my
going to
Lucknow.
To Lucknow
should not have gone merely for the purpose of taking " the affidavits, for that purpose I should have proceeded " no further than Allahabad."
Chunar and thence " with great expedition travelling night and day to Lucknow by way of Allahabad. ^ He was met tv/enty
first
From Benares Impey went
to
"
miles from
Lucknow by Middleton
into
the Resident,
his
who
drove
him
Lucknow, receiving
communication
from Hastings on the way. ^ He stayed at Lucknow three days and took many affidavits there, after which he
returned to Chunar.
*
Impey declared
that he
knew
not
how many
"
affidavits
multitude."
he took, but there were " a great Part of the affidavits were taken in "the
^
" "
house in which I lodged, the house of a Martin other parts were taken in the
;
Colonel
tent of
"Colonel
read the
Hannay with whom

affidavits or
had
dined."
^
The
deponents came voluntarily before him.
know
their contents.
after they
He did not He swore
that he never read
them even
were published
by
Hastings in the appendix to his
narrative.
When
they were taken he took them back to Hastings at Chunar, gave them to him and saw no more of them. ^ Being asked if he thought he had any jurisdiction to
take the affidavits he said he had no pretence to act in a
judicial capacity ; but he simply wished to authenticate such documents as Hastings wished to have authenticated.
The two questions and answers

in a very
1
following put the matter
few words.
2 3 4
p 625. p 633_ pp. 625, 626. suppose the well-known founder of the Martiniere. 7 P. 639 and elsewhere. Pp. 627-631.
P. 633.
I
XVI.]
^ "

Q.
263
In what character was you the simple instrument
"
of authenticating
"
them
A. In no
to
official
character whatever, but as a

it
man
"known
" "
was bear a great office, and therefore supposed my taking the affidavits would give a weight to them. " Q. Whether or no you conceive that a man in a
" " "
which he great office giving an attestation to affidavits never read and which were never read to him would
give any weight
"
^
to any justification ? A. I think it would give a weight to the only effect " that I wished to have the weight given, namely to the " that was all fact that those affidavits had been sworn
;
"
meant
" ^
to authenticate, the fact of swearing.
At the conclusion of his evidence," says the historian of the trial, "Sir Elijah Impey made use of the following " " It has words," which his son quotes with just pride. " to me as a crime, my Lords, that I been
"
"
" " "
objected stepped out of my official line, in the business of the affidavits, that I acted as the Secretary of Mr. Hastings. But I trust it is not in one solitary I did do so.
instance that I have done
require.
more than mere duty might
The
records of the East India
Company
the
"
"
minutes of the House of
various inhabitants of India
Commons
the recollection of
I trust will prove
all, all,
"
" " " "
that I never have been wanting to what I held was the I have stayed when personal service of my country.
might have whispered there is no occasion for your delay I have gone forth when individual ease I have advised, when might have said stay at home
safety
!
'
!
'
This has very little meaning. Trial of Rastingn, i. 53. The passage is not in the History shorthand notes, but much resembles the passage quoted above, p. 260.
P. 639.
'
of the
264
"
"
[chap.
I miglit coldly have denied advice. But, I thank recollection does not raise a blush at the God, part I " took ; and what I then did, I not now ashamed to "
my
am
mention."
spirit and decision appear to have made a great impression on the house. The author just quoted con" cludes his account of the matter thus At half-past
:
His
"five "
the managers seemed to think they had heard enough of Sir Elijah." He was not called again. Before I proceed to
my own
observations on this matter
must add a few facts from the Appendix to Hastings's narrative. The total number of affidavits sworn was
I
forty-three.
They may be
Sworn
in
classified as follows
in
verified
Persian, of which sworn translations, upon oath by Captain Davy, the Persian
to
translator
Hastings,
are
published
the
Appendix Sworn in Hindustani, from which a sworn Persian translation was translated into English by
19
Sworn
Captain Davy, each translator being sworn in English by natives to whom the affidavits were previously explained in their own language by Captain Davy, the language declared to be Hindustani in two cases and being probably Hindustani in the other four
. .
in English by Affidavits in English

translations.
Sworn
Englishmen before
Impey
10
q
1
by Captain Davy verifying
Sworn
in
&c French by a Frenchman
43
xvi.]

criticisms
265
The
time
made upon
this transaction
both at the
and afterwards make it necessary to state two matters which are so familiar to every lawyer that I cannot understand how the managers of the impeachment of Hastings and those who tried to get Impey impeached
could successfully affect ignorance of them. The first is that in the common course of business
when
an
affidavit is sworn,
it as the attesting witness of a will or deed has to do with the contents of the docu-
He
person before whom it has as little to do with
even in a judicial proceeding, the is sworn never knows its contents.
ment which he
affidavit in a
it is
attests.
To blame a man
for
swearing an
sworn
is
language of which the person before whom ignorant, is as absurd as to blame a man for
witnessing a will written in a language which he does not know. All that the judge or ^ commissiooer has to do is
to satisfy himself that the deponent swears that the contents of his affidavit, whatever they may be, are true.
All that he need
enough
of
it
to ask
true and to give
know of the deponent's language is him if the matter of his affidavit is him the oath. Persian, and perhaps
that was required for this purpose
Hindustani, were
all
^ in regard of these affidavits, and Impey said before the " House of Lords, I understood the Hindustani language "
"
much more than for such a purpose, both Hindustani and Persian much more than for such a purpose." ^ Mr.
Shakspeare, the Chief of Dacca, said that he had heard " Impey speak with some fluency both in Persian and in
^
Affidavits are
now sworn almost always
before Commissioners.
The
was to swear Lord Justice Lush to an affidavit. What it was about I have not, and never had, the faintest idea. I do not recollect that any other affidavit was ever sworn before me.
first
^
judicial act I ever perfonned
Shorthand notes,
p. 646.
Reports of Committees,
v. 395.
266

(Hindustani).
[chap.
"Moors"
He
thus needed no intei-preter
he had undertaken, and, as regarded the Persian affidavits, used none.

for the task
The second fact to be mentioned is that till the year 1835, when the 5 and 6 Will. IV. c. 62 was passed, the taking
of voluntary affidavits, not in any judicial proceedings, but for the purpose of attesting matters of fact which any one wished to authenticate was very common. For
instance Clavering, Monson and Francis, made an affidavit as I have already related, that they never had any intention to take Nuncomar out of custody by force.
Impey already referred to incloses a contract in which Francis maliciously affidavits about suggested he had a corrupt interest. Such affidavits
of the letters of
One
were in no sense judicial

judicial proceedings.
They were not sworn in To commit perjury in them was

acts.
not a crime, but merely a lie upon oath. They were usually sworn before magistrates to give them an appearance of importance, but any one whatever might swear
such an affidavit with just as much legal effect as the Chief Justice of the Queen's Bench, and its legal effect
was in no way dependent upon the place in which

sworn.
act
in taking affidavits
it
was
Impey's about the disturbances at Benares, had no greater and no less legal significance than his asking the deponents
far
at
Lucknow
whether what they said was true would have had. As as the law went ^ any private person might have administered the oath as well as he. His office and
dignity no doubt put on record the fact that the oath was taken with more emphasis than Middleton or Hannay
^
Two
a justice of the peace. There was much affidavits on the trial of Lord Cochrane.
of the affidavits were sworn before Hastings who, however, was discussion about voluntary
XVI.]
267
could have given to
it, but an affidavit on such a matter sworn by either of them would be legally neither better nor worse than one sworn before Impey. I think indeed
that the mere taking of the affidavits would not been charged against him as an offence if it had not regarded as an overt act of a conspiracy between and Hastings to plunder the Begums. Any one
have
been
him who
undertakes
the wearisome task of reading through examination by Sheridan will, I think, see that Impey's this was the real gist of the charge against him. He
^ conspicuously Sheridan failed in his object, but this matter lies out of my present subject. It seems to me that in this whole matter Impey at the
will also see
how
very worst was a

responsibility and
difficulty,
little
officious,
but willingness to take

Governor-General in a
to help the
may
also
and public
spirit.
What
be described as a proof of courage corrupt motive Impey had in
his conduct in the matter
no one has ever shown.
Macaulay
conduct to
" "
in a very characteristic passage ascribes his love of wickedness pure and simple. His
is
account of the matter
as follows
But we must not
forget to do justice to Sir Elijah
Impey's conduct on this occasion. It was not indeed " easy for him to intrude himself into a business so
" "
entirely alien from all his official duties.
was something inexpressibly
alluring,
But there we must suppose,
"
in the peculiar rankness of the infamy which was then " to be got at Lucknow. He hurried thither as fast as
" "
crowd relays of palanquin-bearers could carry him. of people came before him with affidavits against the
^
See, for instance, Sheridan's
heavy and puerile wit about Impey in

i.
the speech on the
Begum
Charge, June 3rd, 1788 {Speeches,
p.
548-
555 and elsewhere).
268
"
[ceap.
"
Begums, ready drawn in their hands. Those affidavits he did not read. Some of them indeed he could not
read
;
"
for they were in the dialects of Northern India," the original review in October, 1841, it is in " Persian [in
and Hindustani
" "
He
" "
"
and no interpreter was employed. administered the oath to the deponents with all possible expedition, and asked not a single question,
"]
"
not even whether they had perused the statements to which they swore. This work performed, he got again
into his palanquin and posted back to Calcutta, to be in time for the opening of term. The cause was one
"
"
which, by his
"jurisdiction.
"
"
own confession, lay Under the charter
altogether out of his of justice, he had no
more right to inquire into crimes committed by Asiatics in Oude than the Lord President of the Court
of Session of Scotland Jo hold an assize at Exeter.
"
"
He
Begums, nor did he pretend to " With what object then, did he undertake try them. " so long a journey ? Evidently in order that he might " in an irregular manner, that sanction which in a give, " regular manner he could not give, to the crimes of " those who had recently hired him and in order that a "confused mass of testimony which he did not sift, " which he did not even read, might acquire an authority
to try the
;
had no right
"
not properly belonging to
it,
from the signature of the
"
highest judicial functionary in India."
Every word of
this is either incorrect or a proof of
ignorance, both of the law and of the facts relative to the matter. I believe that Macaulay knew no more of
it
than
^
is
to
be found in
One
or
James
Mill,
who has given an
Vol.
iv.
310, 311.
two remarks in the passage from Macaulay
suggest that he
may have
it.
turned over the leaves of the shorthand report,
though
doubt
XVI.]
THE LUCKlSrOW AFFIDAVITS.
269
account of the matter, on which his editor and continuer, " As usual this is uncandidly stated, and Wilson, remarks " no regard had to Sir Elijah Impey's own account of the
:
"
transaction."
(1)
The
I will shortly notice the mistakes assertions as to Impey's motives are made in
:
obvious ignorance of the facts stated by Hastings's request that he should come
Impey
to
as to
Benares.
" Macaulay seems, from the expression back to Calcutta," " " to think that he hurried to Lucknow from Calcutta.
not the fact that a crowd of people came '' affidavits against the Begums" ready drawn in their hands. Of the forty-three affidavits ten and by only mention the Begums, and that
(2) It
is
before
him with
'
hearsay,
slightly as Sheridan takes great pains to show. does not seem to observe that by that the
little
He
affi-
davits afforded but
proving evidence arainst the Begums,

is
he also proved that Impey had done nothing to injure

them.
The
plain
truth
that the contents
of the
strongly corroborate Impey's account of the reason why they were sworn. Their main subject is
affidavits
the affair of Cheyte Sing and the operations against him.
The Begums are referred to slightly and incidentally. (3) The remarks that Impey did not read the affidavits,
asked no questions about them, and acted out of the local limits of his jurisdiction, are not quite correct, for it from his evidence that Impey did ask the nineappears
teen deponents to the Persian affidavits whether the contents of their affidavits were true. But however this may be, these remarks show ignorance of the law.
^
L,
Namely, in bundle M, IST, 0, P, and Q.
iii.,
In bundle
which contains the nineteen Persian afBdavits, ix., which contains the affidavits of
English officers, B by Colonel Hannay, C by Major Macdonald, and D by Captain Williams. There is also a second affidavit by Colonel Hannay numbered xi.
270 (4)

The remark
"
[chap.
that
Impey could not read some

"
of
the affidavits
"
because they were in the dialects of northern
India and no intei-preter was employed is incorrect. All the affidavits were in English except nineteen in Persian, one Persian translation of a Hindustani origiof upper India." This assertion is remarkable, because it is an error upon an error. In his original review " the greater part (of the affidavits) Macaulay said, " indeed he could not read, for they were in Persian and "
nal, "
and one in French.
Not one was
in
"
any
dialect
learning from Mr. Macfarlane's work' Persian, the passage was altered to the incorrect form in which I have quoted it, a false premiss
Hindustani,"
On
that
Impey knew
being substituted for one which was half true, in order

to suggest a conclusion wholly false was unable to read the affidavits.
namely, that Impey
(5) The concluding part of the extract about Impey's motives shows ignorance of the simple explanation given of his own conduct by Impey, that his object was to
authenticate Hastings's narrative as far as he properly could. This narrative is not mentioned by Macaulay,
who probably had never heard

knowing
of
it,
is
of it, and who, by not driven to the absurd conclusion that

"
Impey
"
intruded himself
into the matter because the
peculiar
to him.
rankness of
the
infamy thus to be got at

to be inexpressibly alluring
Lucknow must be supposed
I here take leave of Lord Macaulay's essay of which have spoken so much and so severely. I will add a few words in a different tone. My censures are in I
not
themselves a tribute to Macaulay's genius, for if I had felt him to be an extraordinary man I should
criticise
not have cared to
him
so minutely or to con-
XVI.]

him
271
I feel too like a surveyor so emphatically. a painting by the help of a compass and a footrule. Accuracy in matters of fact is, no doubt,
tradict
criticising
importance is continually being impressed upon every one connected with the administration of justice, and especially upon every Imaginajudge, but it is by no means everything. " " to quote Macaulay's essay once tion the noble faculty
" " more, whereby man is able to live in the past and in " the future, in the distant and the unreal is in itself a
;
indispensable to justice.
Its
and far higher quality than even industry or accuracy the same may be said of that manly form of eloquence
which by the suppression of unnecessary detail, and the use of apt short expressive phrases, puts vigorous thoughts I do not think any one can have a into a striking form.
Macaulay's Essays. Their manly sense, their freedom from every sort of mysticism, their courage and directness, their sympathy with
all that is good and honourable, untainted by the very faintest touch of sentimentality, made them in my boyhood my favourite book. I knew them almost by
stronger admiration than myself for
heart at one time, and the essays on Hastings and Clive were the writings which upwards of forty years ago gave me a feeling about India not unlike that which Marryat's
novels are said to have given to many lads about the sea. In later life the ^ Penal Code which I had special occasion
to study, appeared to
me
to be a
its
work
of true genius,
and
one which showed that
author might have been the
^ I wrote a short but heartfelt notice of him and his works in the Saturday Review on the occasion of his burial in Westminster Abbey. It was afterwards reprinted in a forgotten (or rather unknown) volume called, Essays by a Barrister, published in 1859. * See my History of the Criminal Law, iii. 298 324.
272
[ch. xvi.
greatest of English lawyers if he had not preferred greatness of a different kind. Of his personal qualities as I
knew them
no degree
I will only say that I think his
nephew has
in
flattered him.
Of the
of
attacks
is
upon Impey which
have done
my best
to refute it
fair to say,
which
its
author,
know
the importance.
when To him
that they occur in a review he wrote it, probably did not

it
was a mere
effort of
journalism, hastily put together from most insufficient To the memory of Impey it was a gibbet. materials.
To the whole English nation it has become the one popular account of the early stages of the Indian
Empire
as
the
accepted
myth.
Slightly
to
famous remark of
De Quincey
in his essay
adapt the on Murder
a Fine Art, -Impey has owed his moral ruin to a literary murder of which Macaulay probably thought
but
little
when he committed
it.
li
CHAPTER
XVII.
Harwell's letters.
I HAVE the permission of several members of the family of Richard Barwell, the colleague and supporter of Hastings, to publish such of his letters as throw a I have availed light upon the subjects of this book. self of their kind permission to a certain extent.
myThe
letters are of course those of an eager partisan, and I have not attempted to verify their assertions. They seem to me, however, too curious and life-like to be lost. They were written to his sister, who appears to have been
his principal English correspondent.
The most curious of them is the following account of Nuncomar, which is not dated. It obviously represents
reports current at the time, and probably contains a fair share of truth mixed up with exaggeration and perhaps
even falsehood.
for
I give
it
on account of
its curiosity,
and
what
it is
worth.
Account of Maha Rajah Nuncomar.

" "
wholly impossible for a man to commit to a full account of all the plots and machinations writing of the Maha Rajah Nuncomar, because a complete
It
is
"
VOL. IL
274
"
BARWELL'S LETTERS.
[chap-
knowledge of every individual transaction is not to be obtained, except from those by whose agency they were " performed, but some of his principal actions which are " Yet even of most notorious may be brought to light. " these, if it be desired to quote exactly every year and
"
"
"
'
every month of each year in which they occurred, exelusive of the length of time which for so minute an investirâtion, it
" "
writer at
least
would be necessary would cost an able a month to arrange and finish the
work.
"
The present attempt is only meant as a summary account of the principal transactions of the Maharajah
;
"
"
" " "
which may be ascertained by inquiries from those who have been long^ conversant with the affairs of this kingdom, and others may be proved by a reference to the Records of the Council. But at the same time
of
some
"
these general hints
may
incline
some of the people
in
"
power
"
" " "
to investigate the particulars.

is
Nuncomar Roy
son to Padlab Ro}^,
who always
held some
government, and was Aumil of two or three Purgunnahs, such as Futtah Sing, Ghourih. Gaut and Sutseetra, the Jummah of which might be
office "under
"
"
about
his
Pts.
son
Nuncomar Roy,
150,000 at the period, and he appointed as a kind of ISTaib under
"
him.
"
"
Some time after this, some time in the reign of the Nabob Ally Verdy Khan, more generally called Mehabut " Jung, Nuncomar was appointed Aumil of the Pur"
"
" "
"
gunnahs of Higly and Musadul, where after a little while he was guilty of much malversation in his office and incurred a balance of Rs, 80,000, having besides used excessive oppressions upon the Zemindars and
Ryots.
XVII.]
BARWELL'S LETTERS.
^
275
They laid their complaints before the Roy Eoyau Cheyn Roy, who was extremely kind and merciful to the " subjects and who bore the best character of any one " Roy Royan Cheyn Roy immediately displaced Nun"
"
"
"
"
comar, and after his accounts were properly stated, confined him in chains for the payment of his balance,
"
" "
and summoned him daily to the Khalsa Cutcherry where he was constantly flogged and beaten. A considerable time passed away in this manner, and at last Padlub Roy, out of his paternal affection, paid from his
"
"
own
cash the balance due to government and released

;
" "
but upon being made acquainted with his infamous practices, swore never to see Nuncomar's face and
his son
never forgave him in his lifetime.

"
Cheyn Roy,
also the
Roy Royan, gave
orders that so
" "
notorious a villain should never be suffered to enter the
"
"
When Nuncomar found himself absolutely prohibited from the Khalsa Cutcherry, he procured an introduction to Nabob Hossien Khan Naib to the
Cutcherry.
this
all
"
"
"
"
Nabob Mehemut Jung deceased Cheyn Roy the Roy Royan
upon
intelligence of
sent a full account of
the Naib
the frauds and infamous practices of Nuncomar to who immediately drove him from his house
"
and during these transactions a considerable space of time elapsed. As soon as the seeds of internal enmity " sprang up between the N abob Mehabut Jung and his "General Mustapha Khan, and Nuncomar began to
"
"
suspect
'
it (as it is
his nature to apply himself diligently
Rdi-rdydn,
applied as a title to
title
corruptly roy-royaii literally prince of princes, but Hindu civil functionaries of high rank, It was the
borne by the financial minister and treasurer of the
Nawab
of
Bengal, and was assigned by the British Government to the chief native revenue officer whom they appointed in 1772 on abolishing the office of
Naib Diwan (Wilson).

T"
276
BARWELL'S LETTEES.
[chap.
"
when any disturbance arises between great he immediately waited upon Mustapha Khan. "men) " God only knows what passed between them at that
to a party,
" "
"
knowledge is this, ^ Malthat Mustapha Khan took into his hands the guzarry of several Zemindars, for some of whose lands
conference, all that
came
to public
" "
Nuncomar became
security.
At
last
when a heavy
balance was incurred upon those lands, and Nuncomar's " Khan practices came to be better understood, Mustapha
" "
determined to seize and send him prisoner to the Roy

Royan.
He
"
"
and escaped
by some means got intelligence of this, so secretly to Calcutta, that nobody could
But when the quarrel Nabob Mehabut Jung and Mustapha between th^ " Khan openly broke out, and Mustapha was slain, and " the Roy Royan Cheyn Roy also was dead, Nun" comar again made his appearance at Moorshedabad,
discover whither he had fled.
"
"
"
and by the recommendation of the ^ Mutsudees obtained the collection of the Purgunnah of Sutseetra. "About that time he borrowed Rs. 2000 from Meer Hoobutulla, an inhabitant of Hooghly. He was soon "recalled from his post, and after having settled his " account at Moorshedabad, he went to Hooghly in search " of a subsistence while Mahomed Bey Khan was
''
" ^
Fougdar
^
there.
While he was there Meer Hoobut
"
ulla set
*
Peiadais Mohsill upon
him
for his
debt of
Revenue assessment.
Mutasaddi, corruptly mootsaddy, &c., a writer, a clerk ("Wilson). Fauj, an army, a multitude, police jurisdiction. Faujdar, an ofRcer of the Mogul Government who was invested with the charge of the police and jurisdiction in all criminal matters. A criminal judge. A magis'
"
trate.
*
The chief of a body of troops (Wilson). Piada Pcada, an armed servant, the same
restraint set
Mohdsali,
upon a person
to
as peon. Mohdsala, prevent his escape, or to
XVII.]
HARWELL'S LETTERS.
277
" "
"
Rs. 2000 and confined

all
him closely for
that time he neither drank nor
of the natural evacuations.
At
during eat, nor performed any last by the assistance
five days,
" "
"
of Sheik
Rustum, the father of Comal ud deen Khan,
" "
" "
he procured a certain person, inhabitant of Purtabpoor, to be his bail for a limited time of fifteen days, and obtained his liberty, and having taken up at Chandernagore shawls to the value of Rs. 2000, he sold them for Rs. 1200 1000 of which he gave the man who was
;
and keeping 200 to himself absconded from " Hooghly for the remainder of the debt which was "Rs. 1000, and went to Moorshedabad. After some " time Mahomed Yar Beg Khan was displaced 'from the " Foujdarry of Hooghly, and Hidayet Ali Khan put in "his place. At that time Nuncomar had liberty of
his bail,
" "
" "
paying his respects to the Nabob Suraji-ud-dowla, but was so poor that he would purchase upon credit horses or shawls or any such things from the shopkeepers at
the price of Rs. 2000 perhaps, and then sell them for "ready money at Rs. 1000, Rs. 500 of which he would " pay to the shopkeepers, and support himself upon the
"
remainder,
while
the
"importuning him
"
for the
shopkeepers were constantly balance of their debts. It

sitting
"happened that the Nabob Suraji-ud-doula was
in a retired part of his palace one day, when Nuncomar " went to pay his respects, and upon his whispering some" what to the Nabob (but what he said nobody knows)
"
the
"
angry, and ordered to be most severely bastinadoed with a bamboo.
Nabob became exceedingly

is
him As
"Nuncomar
inforce
1
of
an excessively strong constitution, he

(Wilson)
payment of a demand. " mohiissiL" Compare
The word
is
often
written
his behaviour in prison in Calcutta.
278 "
BAEWELL'S LETTERS.
[chap.
life from that beating, which it is certain would have killed any other person. Besides which " Nuncomar by order of the Nabob was sent to Hidayet " Ali Khan at Hooghly. Hidayet Ali Khan had heard " that Nuncomar had been applying for the Dewanny at " Hooghly, wherefore he used every kind of severity " against him and every method to disgrace him. " Nuncomar some time after with much difficulty made " his escape from Hooghly and went again to Moor" shedabad, where he was reduced to the utmost poverty " and at last Mahomed Yar he^ Khan was again
escaped with
"
"appointed Foujdar of Hooghly. " At that time Nuncomar waited upon Munshey Saduk
ulla, who w^ the intimate friend of Yar Beg, and paid him constant attendance twice a day, till such time as " Saduk ulla took upon himself the patronage of Nuncomar "and introduced him aarain to Mahomed Yar Beg. After " a stay of five months Mahomed Yar Beg left Hooghly " and took with him Nuncomar, with intent to procure,
" "
"
Lahowry Mull, in whom he had great conmade his Dewan, and not Nuncomar, " whom he knew to be very poor, and whom he brought " to Hooghly but upon Lahowry Mull being made Dewan " at Hooghly Nuncomar was reduced to the last distress " and went again to Moorshedabad. " After some time, Lahowry Mull, by a piece of inif possible,
"
fidence,
to be
"
gratitude, procured the
Hooghly customs
to be separated
"
"
from the Foujdar, who therefore cast about to choose another Dewan, and as Munshey Saduk ulla was a most
"
firm patron to Nuncomar, he strongly recommended him and procured the appointment for him. " Nuncomar remained three years at Hooghly, showing ' the utmost respect to Saduk ulla, and from that period
"
XYii.]
BAEWELL'S LETTEES.
279
Dewan. Luckily for him, Mahomed Yar Beg Khan was a man of wonderful " patience and good nature, else he would have dismissed " Nuncomar, as he was very desirous of doing from his " known and notorious bad practices. " At the end of three years, Mahomed Yar Beg was " dismissed from his post and went to Moorshedabad, After his "taking with him his Dewan Nuncomar. " arrival there one year was spent in examining him con" corning the balance of his account, during which period " the Nabob Mehabut Jung died and Suraji-ud-dowla " became absolute Nizam, who after a little time quarrelled " with the English gentlemen, and took and plundered " Calcutta, and at first appointed Mirza Mahomed Ally "to be Fougdar of Hooghly and afterwards Sheik Umer
constantly bore the appellation of
"
" "
"
that time Dewan Nuncomar, having scraped a little money from his former post, left his together " former master's accounts unsettled, and by bribery "procured himself to be made Dewan to Sheik Umer
Ulla.
At
"
"
some space of time found means to procure the dismission of Umer Ulla and to get himself
Ulla,
and
after
"
appointed Fojudar in his room. " About that time, when Colonel Clive Sabut Jung
"
"
was besieging Chandernagore, Dewan Nuncomar Roy sent him complimentary messages by one Kissen Ram " Bow, and upon his first coming the Colonel conceived a " prodigious friendship for the Dewan and upon this intro" ductioD, after the Colonel had taken Chandernagore, de" feated the Nabob Suraji-ud-dowla, and placed Meer " Mahomed Jaffier Khan upon the ^ Musnud. Dewan Nun" comar Roy was permitted constantly to visit the Colonel " from Hooghly, and was also sometimes consulted by him
1
Throne.
280
BAEWELL'S LETTERS.
affairs, to
[chap.
"
"
on particular
It
show an evident
partiality for him.
now happened that Colonel Clive was to go to Patna, " and Maha Raja Dooliah E,am appointed Dewan Nuncomar
"
Roy
with
" " '
nished
as his vakeel to accomj)any the Colonel and fiirhim with tents and baggage of all kinds, and
all
expenses from his
own
cash to the intent that
constantly attendant upon the colonel^ " his utmost to cement and to increase the might use " friendship that was between the Maharajah and the
" '
Nuncomar being
colonel,
and afterwards upon the
arrival of Dooliah
Ram
himself at Patna, Nuncomar had so ingratiated himself " into favour that it was usual for the people to style him " the black colonel.
"
By
this
means Nuncomar had now obtained a com-
"fortable livelihood, and was

"
"
much
confided in from his
Dewanny Hooghly. Afterwards when they arrived at Moorshedabad by the strong recommendations of
at
" "
"
'
Colonel
Clive, Nuncomar was appointed Dewan to Mahomed Ameer beg Khan, who was instituted Foujdar
of
Hooghley Hidgeley,
^
'
tained the
Tunkaw
of
&c., and when the company obBurdwan and Kislmagur for the
"
"
to them, the collections of these two were given to the Dewan Nuncomar, by the provinces " recommendations of Colonel Clive.
money due
Nuncomar now contrived to bring about an enmity between Maha Raja Dooliah Ram, and the Nabob Meer "Mahomed Jaffier Khan, which almost came to open " war, at which time the Dewan Nuncomar, having raised " some auxiliaries, brought the Maha Rajah Dooliah Ram " from Moorshedabad to Cossimbuzar, from whence he
"
^ Tankwdll (introduction), an assignment by the ruling authority any upon the revenue of any particular locality in payment of
"
specified
head of change (Wilson).
XVII.]
BAEWELL'S LETTEKS.
all his
281
"
" "
conducted him with

effects
to
Calcutta
after
dependants, baggage, and which Dewan Nuncomar
"
"
returned to Hooghly, and to the care of his and at that period, at the height of affairs,
authority,
own
his
he
demanded from Mahomed
"
"
"
Caun, who had been his great friend 14,000 rupees under pretence of expenses formerly incurred, and by threatening him with an examinaall
Yar Beg and patron,
"tion of
"
"
"
his accounts.
Mahomed Yar
Beg,
looking
upon
paid his unjust demand. Afterwards Nuncomar gave such per" nicious advice to Ameer Beg Khan, that he raised a
it,
principles inevitably sting the
to be like those of the adder
Nuncomar's which will
bosom that cherishes
"
"
"
suspicion of
him
in
the
mind
so that
of the
Nabob Meer
his
Mahomed
Jaft'eir
Khan,
Ameer, finding
"
"
situation desperate, begged leave to resign his post,
and
got on board a vessel.

"
Nuncomar
also,
being
much
terrified
for the con-
"
sequences of the commotions he

practices set himself
"
"
had caused, and of the he had committed, withdrew from his post and
"
down
in Calcutta.
Bajah
"
"
Bam
took up his Bajah Dooliah
^ Harcarrah, also came and Sing, chief abode in the same place, where Maha
"
"
"
"
Ram had long before fixed his residence. These three persons entered into a close combination and sent vakeels with great expedition to Delhi to
solicit
employments,
for
viz.,
the
post
of
Dewan
of
Bengal
"
"
Maha Bajah
Dooliah Bam, and the Naib

for
Dewanny
original
^
for
Nuncomar, and
Bajah
Bam
it
Sing his
appointment.
After some time
was
dis-
courier,
Ear-kara. Har, every ; kara, from karna, to do. an emissary, a spy (Wilson).
messenger, a
282
" "
BARWELL'S LETTERS.
[chap.
covered that
of
1
"
Dewan Nuncomar was soliciting the post Canoongoe for his own son, upon which Maha Rajah Dooliah Ram was much offended with him, and
;
"
"
no longer imparted his secret designs to him after which Dewan Nuncomar and Rajah Ram Sing sent " letters from themselves into Hindostan with one
"
accord. At length, when Mr. Vansittart Shems ud "deen arrived in India, and Meer Mahomed Cossim " Khan was made Nizam, and the Nabob Meer Mahomed " Jaffeir Khan came to reside at Calcutta, Dewan " Nuncomar connected himself very closely with Meer ' Jaffeir Khan, and they entered into an obligation with " each other. But the Nabob Jaffeir Khan made his " That he would not obligation with this condition.
"
"
hold a correspondence with any person by letter or otherwise himself, but that Nuncomar should act as he
"
thought
"
it
best,
and that
hereafter, if at
any time
"
should recover the Nizamut, he would patronise Nuncomar with all his power. " At that time Dewan Nuncomar had at first much
Jaifeir
Meer
"
"
"
insinuated himself into the favour of Mr. Vansittart.
But
afterwards,
upon Colonel
learnt
Clive's
England when he had

to
full
departure for account of all
Nuncomar's malpractices, and had written particularly Mr. Vansittart upon this subject, Mr. Vansittart still ' kept up the appearance of friendship and countenance " to Nuncomar openly, but at the same time intrusted " him with no part of his confidence. Upon which Dewan " Nuncomar studied every possible method to raise a war " and to endanger the Company, to which purpose a letter
"
^
"
KdnHngo,
district
literally
and
revenue
officers.
an expounder of the laws, but applied to village The office was abolished in Bengal at the
permanent settlement (Wilson).
XVII.]
BARWELL'S LETTERS.
was detected
after the victory of
283
"
"
of his
"
Burdwan and the
death of Indar Jat Perkhee.

Vansittart put a guard of Sepoys and produced before the Council many treasonupon him, able letters and copies taken from Nuncomar's house, all
Whereupon Mr.
"
" " "
which
"
"
"
and papers Mr. Hastings interpreted, and the whole affair is to be found upon the records of the But as by the contrivances of Nuncomar a disCouncil. sension was caused among the gentlemen of the Council, he was released from his guard at the end of forty days. "After his release he wrote and sent two letters
letters
"
" "
"
stamped with the seal of Nabob Meer Mahomed Jaffeir Khan, one to Colonel Clive, and one to the Company, containing a number of false relations, and invectives against the English gentlemen and others,
"
" " "
upon
This also was discovered to Mr. Vansittart, who thereforbid Nuncomar to stir out of his own house, or to
receive visits from
any person, and three or four months
passed in this manner, till the arrival of Colonel Coote, " at which time by the advice of Mr, Amyat and Mr. Ellis,
" "
"
Nuncomar waited upon the

implicitly to pursue the
false accusations
;
colonel, whom he persuaded measures pointed out by his and when the colonel was designing
it
"
"
for Patna,
they gave him several instructions, and
was
settled
among them that Dewan Nuncomar
also
should go with him. " But then Mr, Vansittart, considering what a detri" ment must come to the affairs of the Company from
"
"
"
"
"
"
intreated that Nuncomar might be But when he found the Colonel resolute and importunate, it was at last settled that the Colonel should first set off, and that the Dewan Nuncomar
such a step,
left
first
behind.
should obtain leave from Mr. Vansittart in three or
-84
" " "
BARWELL'S LETTERS.
[chap.
four days afterwards
and follow him, that the world
for Patna, a dispute arose in Calcutta concerning some "letters which, on the outside of the cover, bore the
" "
"
might not observe that the Dewan went to Patna in open and direct opposition to the Governor's will. " At last, when gentlemen of the Council had set off
"
"
Ram Churn Roy, but in the inside were written a different hand, by containing certain addresses to
seal of
Camgou Khan and others which had been by Dewan Nuncomar, and a letter also was
^
fabricated
discovered
Monsieur Lowes with a proposal for the Company. exterminating "Upon these disputes Munshi Sudder ud Deen and "others were grievously harassed, and Nuncomar was
"
"addressed to
All these "again imprisoned under a Sepoy guard. " circumstances are stated in the most clear and authentic " manner in the Records of the Council.
But even at that period under confinement Nuncomar did not in the least abate of his haughtiness, but a " minute accouat of this would be too prolix.
"
"
"Afterwards
"
Colonel
Mahomed Cossim Khan came
" " "

"
"
Mr. Amyatt, Mr. Ellis, off, and then it became necessary for the gentlemen of Council to replace Meer Mahomed Jaffeir Khan
ujDon
and the Nabob Meer an open rupture, and and other gentlemen were cut
Coote
to
"
the Musnud, at which time, upon the applications of Meer Jaffeir, Mr. Batson and other gentlemen released
"
Nuncomar from the Sepoy guard where he had been
confined near a year, and farther to patronise him, held " a council at the house of Meer Jaffeir, though at that
"
time nobody had had any confidence that the
Dewan
"
Nuncomar
1
could ever get over his crime.
No
doubt M. Law, chief of the French factory at Cossimbuzar.
XVII.]
BAEWELL'S LETTERS.
at last
285
" "
he was released in this manner by their and attended Meer Mahomed Jaffeir Khan in the war against Meer Cossim Khan with the title
favour,
"
But
" "
of
Dewan
to
the Roy, Khalsah.
When
the victory
was decisively obtained over Meer Cossim, the Dewan " Nuncomar, unknown to the Nabob Mahomed Jaffeir " ^ Khan, solicited and obtained from the king the title of " Maha Eajah, while he was with the army, which was " afterwards however confirmed to him by the Nabob " Meer Jaffeir Khan,
After this when Meer Mahomed Cossim Khan fled, and the Nabob Shujah ud dowla had levied an army, " Maha Rajah Nuncomar wrote a letter to Bulwantsing, " upon discovery of which treasonable correspondence " General Carnac was determined to seize Nuncomar, and " send him under a guard to Calcutta. But at last by the " earnest endeavour of Maha Rajah Nobkishen, who at that " time was Banian to Major Adams, he escaped. A full ac"
'
count of this
is
to be found in the
"
where every particular of the whole "After this the Nabob Meer
Records of the Council, affair may be learnt.
Mahomed
to Calcutta,
Jaffeir
"
"
Khan came
his pride
with the
Maha Rajah
who by
"
" "
and insolence having disgusted all the gentlemen, who had been the firmest patrons of his life and fortunes, such as Mr. Johnson, Mr. Batson and others,
returned to Moorshedabad, where, upon his arrival he
suffered the
" " " "
Zemindars
to escape
with most enormous

this
deficiencies in their revenue,
and by
means amassed
the All
a fortune of
principal
many lacks of rupees and brought all men in the state to the utmost distress.
easily authenticated
" "
this
may be
by investigating what
quantity of
money was
^
collected in revenue for those
i.e.
Shall Alam,
Emperor of Delhi.
286
" "
BARWELL'S LETTERS.
years,
[chap.
two
all
and what kind of impositions were put upon
the
first
men
of state.
"After
"Jaffeir
"
when upon the Nabob Meer Mahomed Khan's death, the Nabob Najim ud dowla
this,
Records of Council will more fully set forth. " Some months after this Lord Clive, Mr. Sumner and " Mr. Sykes arrived in Calcutta from Europe, whither " also came the Nabob ud dowla and all his Najim
''
"
to Calcutta was also sent up Moorshedabad after a tedious and violent dispute "Muzuffer Jung Avas appointed Naib, and the Maha " Rajah was sent under a guard to Calcutta, as the
"
"
succeeded to the Musnud, during the government of Spencer, when Mr. Johnson and Mr. Leycester " were sent to Moorshedabad, where Mr. Senior and Mr. " Middleton then were, and the Nabob Muzuffer Jung
"
Mr.
who had been summoned

to
;
officers.
At that time Maha Rajah Nuncomar himself
"forged a great " letters from the

"
many papers and wills, and fictitious Nabob Nijeeb Khan to Muzuffer Jung,
accounts of Muzuffer Jung's malBut as that
and brought
false
"
"
administrations at Dacca to Lord Clive.
"
"
"
lord had formerly known the extraordinary fallacies and frauds of the Maha Rajah, and had discovered his waste and appropriation of lacs of rupees, not-
" "
''
behalf,
withstanding all the efforts of Mr. Gregory in his he never would have the least opinion of him, but flatly and plainly declared that he was fully acwith all Nuncomar's iniquities, and that he quainted
"
" "
knew
his whole designs were to have been to stir up disturbances in the kingdom, and that when he. Lord
" "
Clive, was formerly in India, Nuncomar had always given him the most pernicious advice. In short Lord Clive appointed Muzuffer Jung the princijml minister,
XVII.]
BARWELL'S LETTERS.
287
" "
"
" "
and appointed Maha Rajah Dooliah

Seat to assist
him
in
and Juggut the government, and had de-
Ram
termined in his own mind, for the tranquillity of the kingdom, to banish Niincomar into Chittigong, and all
"
Nuncomar's family were then upon that account. "This circumstance is also
in the
utmost tribulation
to
be met with in the
"
records of the council during Lord Olive's government. " But ^ Maha Rajah Nobkishen represented that as Maha
"
"
Rajah Nuncomar was a Brahmin,

punish him
too
severely,
it
was not right

his
to
therefore
sentence of
"
"
banishment to Chittigong was left unexecuted. " When Lord Clive departed for Europe, and Mr. Verelst succeeded to the chair and Nuncomar found he
"
" "
methods
should not be banished to Chittigong, he set about aU to prejudice Nobkishen, and suborned a woman,
"
by name Neeboo, for a present of 2,000 rupees to accuse Maharajah Nobkishen of having forcibly com" mitted a rape upon her. This affair, after a long
"
"
and minute investigation proved to be all a contrivance and a false accusation, and Ram Surrun Gore, who had " been suborned by Maharajah Nuncomar to tutor the " Begirl, was drummed out of the town and banished. " sides this upon the same affair, ^ fourteen blank covers " of letters sealed with many English gentlemen's and " Hindostanee names were found in the Maha Rajah " Nuncomar's house, and delivered into Council, as
"
may be
Council.
^
fully
"
Besides which,
liis
proved by reference to the Records of if the Records of Council,

trial, vol.
i.
Compare
raluctance to give evidence on Nuncomar's
pp. 119, 120.
This is probably the same story as the one quoted by Macaulay from the Siyyar ul Mutaqlicrin about seals foiind in Nuncomar's possession after his execution.
"^
288
"
"
HARWELL'S LETTERS.
[chap.
under each particular Governor were searched,

other
notorious
offences
of
many Maha Rajah Nuncomar
"
would come
to light.
"After this in the Government of Mr. Hastings the 'Maha Rajah betook himself to his old practices, and was
"
"
"
guilty of the most palpable and notorious fallacies and frauds in the affair of the Nabob Muzuffer Jung, as the proceedings of Council will fully set forth and after
;
"
"
the favours conferred upon him by the Governor, the notorious ingratitude with which he has now treated
" " " "

" "
him
is
as clear as the sun.
The
inference in this that
whoever has at any time conferred any obligation upon the Maha Rajah Nuncomar, he has never failed to return a proportionable degree of malice and evil. These few outlines of his character are drawn to give some small
idea of him, though not one villainy in a hundred, nor 1,000th part of his crimes are herein displayed. But by the blessing of God the full and complete account of the
"
"
Maha Rajah and of all his transactions shall hereafter "be particularly and minutely recorded in a larger work." The following extract from a letter to Mr. John Graham,
dated 9th August 1775, should be read here
" "
"
:
"
"
"
on the charge of a After an forgery to defraud the estate of Bollaky doss. examination of many days in the course of which every
villainies.
trial
Poor old Nuncomar is at He was brought to
last
fallen
by
his
own
" "
evidence he produced was detected of perjury, the jury brought him in guilty, and on the 5th of the present
"
" "
month, at half past nine in the morning, he suffered by He conducted himself with the hands of the hangman. and at the place of execution acknowledged decency, the justness of the sentence by which he suffered.
XVII.]
HARWELL'S LETTERS.
289
"
"
"
The
screen this
various arts that have been used to support and man would take up a volume in the detail,
and
will reflect not a little
on the General and Colonel
"
"
"
Monson, who both particularly busied themselves in his cause, disputed with the judges on his account, and
advanced a plea of right in the Government to step forth on all occasions for the protection of the natives when
oppressed by the proceedings of the Judicature, " Various are the minutes and letters on the subject, but such pretensions and such an improper interference
to take
"
"
"
"
Nuncomar out
of the hands of justice struck the

forcibly, that
"
"
Governor and myself so

set
we
refused to
our names to any letters broaching these wild
"
doctrines."
Bar^vell and Clavering.
The
May
"
loth, 1775,
:
following extract from a letter to his sister, dated is not only characteristic but enter-
taining
my support of Mr. Hastings, unthe disagreeableness of my situation, discouraged by " and unshaken by the advances of General Clavering, &c.
I shall continue
"
" "
The whole scene

its
have had with the General
is
in all
" "
"
"
"
parts well adapted for the Volpone of Ben Jonson. Whatever could have operated on a man's wishes or his fears has alternately been held out to me. His daughter
at one time plays with affections, if not with her I deal plainly with her, expose my situation, and intimate my expectations from her. Matters are brought
my
own.
" "
to a point. The father then interferes begins sudto doubt denly public conduct, and withdraws his
my
"
"
daughter. But it is without effect, and, having proved me not to be a dupe of passion, he begins to bluster. VOL. IL U
290
"
BARWELL'S LETTERS.
[chai-.
"
"
He threatens me with the terrors of the law he brings

from
forward a false charge touching the benefits I derived salt while at Dacca. I do not deny the profits
" "
" "
I made. I avow them. I always avowed them. They were neither secret nor clandestine, but I object to the conclusions drawn, and refute them. Finding me to this, he descends to scurrility, cidls names, superior
or
uses language to the same import. I return the supposed insult. He does not avow the words or any " intent to insult. It is gone too far. I cannot retract
" "
"
without a wrong idea possibly being impressed of

motive.
I
" "
meet him
I
in this opinion.
my am providentially
preserved.
"
'
then enter into an explanation, because my

I declare I applied the
motive cannot be misconstrued.
affront I gave to such particular language ; that I meant " to give the affront to whoever presumed to hold such
" "
language to me that I must have been mistaken, as the General did not avow the words at which I took offence,
" and as he declared he did not intend

"
"
me
an
affront, I
could not do less than apologise for that I had given under the persuasion that I had received one from the General.
Here we ended, and from that hour to this we have been extremely polite to each other, at times familiar " on his part and encouraging to resume my visits to his " house but hitherto I have declined the least advance to " this connection I once thought of, and have no idea of " taking it up again. The young lady I sometimes meet
"
;
"
" "
"
"
in public assemblies, and though I confess a pleasure in perceiving the same conduct and the same attention
on her part that I ever received, yet there is something more' due in my opinion. My views have been opened to
her and referred by her to her father. In my circumstances, therefore, they can never be revived, unless
"
"
XYii.]
BARWELL'S LETTERS.
291
"
' "
he comes forward. This his pride, I imagine, ejffectnally prevents, especially as he would wish first to be ascertained
how
am
disposed,
which I
shall never give
him
an opportunity of knowing, as I am perfectly indifferent " to a change of condition, whatever attachment I might " have had, and still may have, for his daughter. Keep " your own state, no other lot prefer,' is the sentiment
'
'
"
"
of a
"
"
nature, and I
philosopher who perfectly understood human am convinced comprises in it the limited
happiness of man."
Barwell's Charges against the Council,
The
followinof letter
from Barwell to his
sister,
dated
Calcutta, August 5th, 1775, the day of Nuncomar's execution, gives his view of the means used by the It is Council to collect evidence against Hastings.
worth reading, as showing the temper of the time. Some expressions in it look as if Barwell did not believe in the
purity of Hastings, and of course the truth of his statements cannot now be tested in detail. They seem, however, to be worth preserving, especially as they show what was said against the Council on the subject of
suborning evidence
pressed
it.
matter to be borne in mind

letter
in considering their representations that Hastings sup-
Whatever the
may
prove, here
it is
TO MRS, MARY BARWELL.

"Calcutta,
August
"
"
5th, 1775.
The
state
of
our Council
remains
the
same as
described in
is
"
to be
my former letters, and if any alteration brought about by the influence of money, in
u
2
292
"
HARWELL'S LETTERS.
[chap.
"
" " "
that case no risk of private loss should be regarded. Nor must you regard the expense of some thousands
" " "
any great object to your brother. be practicable to give success to Mr. may Hastings I know not. I flatter myself, however, that his interest will bear him through, and baffle the
to secure ultimately
How
far it
insidious practices of General Clavering and his Junto The means to remove him from the Government.
"
"
"
they have taken are certainly base and infamous they and oppress all who are any way connected with him,
;
the most vile
among the
natives
who
will only lay a
" " " "
witli charge or whatever they claim for a compensation, whether it be lands, high offices, or honours. They threaten every man in station under the Government with their
complaint against him they reward
"
that they have it in their displeasure, and supposing to accuse the Governor of some venial trespass power " or peculations, they are so barefaced as to propose the " accusing of him by them as the only condition for
" "
continuing them in their employments. " Amongst the multiplicity of instances of this nature, " I will enumerate a few
:
" "
"
1.
The Rannee
of
Burdwan, a
first
vile prostitute
and a
dishonour to one of the

unsuccessfully
families in Bengal,
who
"
"
attempted to bribe the Governor and some members of the late Council with a donation
of four lacs of rupees to possess that degree of inde-
"
"
" "
pendency and power which the new Government has thought proper to confer on her her only merit consists in attempting to vilify the Governor and Mr.
Graham, and the only demerit of Brijookissen Roy, the guardian to the young Rajah and Dewan to the "household, is declining the infamy of an informer
"
XVII.]
HARWELL'S LETTERS.
293
" "
from disinclination, or the want of ability to assume that character, who has been in consequence removed. " 2. The removal of Khan Jehan Khan, Phousdar of
"Hooghly, who either would not or could not authenticate the improbable relation given by Zeen-ul-ubdeen-Khan to the Board, of his holding the station of "Phousdar upon condition of paying to the Governor "the major part of the salary annexed to his office. "The pretext for this man's removal was contempt,
"
" "
"
though unsupported by any proof of the contempt

alleged.
"
3. The honours and distinctions paid to Raja Nuncomar upon the merit of his accusing the Governor, "and as Zeen-ul-ub-deen-Khan before named was his
"
"instrument in the former accusation, at his recom"mendation Mirza Mindee was appointed Phousdar of "Hooghly, with a stipend of 3000 rupees per mensem.
"Mirza Mindee previous to this was a dependant of " Rajah Nuncomar, and content with the humble salary "of (20) twenty rupees per month, which the Rajah "allowed him for his sustenance. This was, in fact, " making Nuncomar Phousdar of Hooghly, while it was
"
ostensibly in the
"
4.
name
of Mirza Mindee.
The
"
Begum
" "
"
deposition of the Nabob Jaffier Ali Khan's from the guardianship of the young Nabob,
and superior of the household, because she would not

or could not verify the accusation of Nuncomar touching certain sums of money said to have been paid to the
Governor and others by her order. " 5. The advancement of Rajah Goordass, the son of "Nuncomar, to the offices held by Jaffier Ali Khan's " Begum, and the giving him the charge of her person, " with the removal of the son-in-kw of Rajah Nuncomar
"
294 " " "
BARWELL'S LETTERS.
[chap.
(Juggutclieend) because he declined to forward or abet the measures of his father-in-law, and in consequence
was upon ill terms with him. Juggutcheend was "Paishcar or superintendant of the Nabob's household "under the Be'Tjum.
"6.
The oppression
to
of
Commaul O Dien Khan
for
"adventuring
"involved,
" "
lay
before the public the conduct of
"Mr. Fowke and Nuncomar, by whom he had been and grossly imposed upon. This man is a
salt contractor,
and a farmer of the
district of
Hid glee
^
;
"
"
" " "
the farm of the district of Hidglee he relet upon certain conditions to another, and the man to whom he relet it
paid the rents to the Government, and consequently must be understood to have been accepted as the renter.
treated
to
The Calcutta Council called upon this man as such, him as such, and used severities to induce him
"
admit the balances they stated against the district, the rents of which he collected, agreeably to their ideas "of Avhat those balances were. Yet after Commaul O
Junto, and
"
"
"
Dien became obnoxious to General Clavering and his it was well known he had no charge of the
of Hidglee, and no
"collections
power or authority
is
to
demanding the rents of him, " recourse is immediately had to Commaul O Dien, who, " being unable, and without the means of answering such " a call, is thrown into the Diwani Prison, while the man "who collects the rents, and from whom the Government "received the rents, and who had been called upon by "the Government to settle the balances due, is styled " Commaul O Dien Khan's agent, and free from any
^ There Baboo.
"gather in the rents, the real renter " as his agent only, and from
suddenly regarded
is
no hint here of Commaul's being the Benamidar of Cantoo
XVII.]
BARWELL'S LETTEES.
295
"demand of Government, being accountable solely to " Commaul O Dien, with whom it rested to bring the
"
man
"
to account.
"
oppressive or
"
"
more more vexatious ? " Commaul O Dien is a man of little or no property. The real renter is a man of substance, and his security
Can any
transaction have a blacker colour, be
is
likewise a
it
man
"
stances
must be evident
to effect
of property. to the
Under
these circum-
"in order
Commaul O
meanest capacity, that Dien Khan's ruin and
"gratify a particular resentment, the Company's claim, " whatever that is, on the responsible persons, are yielded
"
up merely to imprison this poor devil. Supreme Court "of Judicature is, however, fortunately established for "his relief, and holds out her protection against such
" "
terrible abuses of despotic power ; there he will naturally find an asylum and security against the vindictive rage
faction.
"
"of a
7.
The
ejection of Dalleel
Roy from
the farm of
"Rajeshy,
who
the
"among
"
had, with a punctuality seldom found to native renters, paid his revenue
Government, but this man would not or could not "accuse the Governor, and Ramkissen, either truly or
" "
falsely
"
charging the Governor under the name of Cantoo Baboo, and others under the names of their different
Banians, obtained not only the removal of Dalleel Roy,
"but a compensation of the Zemindary, in prejudice of " the Company's rights to the eventual succession, or in
"
" " "
prejudice to the rights of the surviving branches of the Rajeshy Rajah's family, if any such are existing for
;
more
particulars on
this subject revert to
my
letter of
the 17th last May. " 8. The dismission
of
Gungagovind Sing from
his
296
BARWELL'S LETTERS.
because
[ch. xvii.
"office, "
he
would
not or could not give a
testimony conformable to the wishes of the opposition, "and various others of less note that have suffered, as
"
well as have been promoted. "These instances will, however, suffice to evince to
"
"
the world that a species of subornation of the most extensive influence is pursued, and that it will be
if
''wonderful indeed
in the end such
means do not
blacken
the
"produce
"
accusations,
true
or
false,
it
to
Governor's character.
Be
so
that as
"
"
may
possibly defeat the end, and
may, the means render the public
the friend of a
man
"
basely persecuted.
villainously pursued and so even admitting the Governor For,
"to have benefited by presents, this mode of putting " people upon the rack to accuse him, and paying others
"
offices, and honours for doing so, is a. tyranny that must blend falsehood with truth, and " make equivocal any testimony thus obtained."
with lands, high
"
INDEX.
A.
Abdehoo Commaul Mahomed,

113
i.
Abduction of women "from motives of lucre," reference to

the statute defining the crime, 57 n.
ii.
to the person before whom sworn, 265 they are now chiefly sworn before commissioners, 265 11. Imj)ey's taking the affidavits asserted to be an act of
known
it
is
Abinger,
ii.
Lord,
his
opinion
as
to
what constitutes a valid marriage,

34
;
him and conspiracy between Hastings, 266 Macaulay's account of the matter, 267, 268 author's reply to the misrepresentations in this account, 268;
270
Colonel, with a company of Sepoys, arrests the officers of the Supreme Court, ii. 211 Aitcheson's Treaties, reference to,
Adalat, reference to Mr. Palk, judge of the, i. 96 Mr. Shore's description of the position of the judge of an, ii. 156, 157 Adair, Mr., one of the counsel for the Company in the impeachment of Hastings, i. 65 n. Adolphus, Mr., reference to his notice of the trial of Nnncomar in
his History of the Reign of George III. i. 7 reference to his
;
Ahmuty,
history, 13 n. ; mentions Impey as one of the counsel for the East
India Company, 33 I'eferences 192 Advocate-General. See Day, Sir

;
ii. 26 n. Alahd, explanation of the term, i. 113 Alexandria, reference to a prison in, ii. 202 Alguazils, Macaulay's use of the word, ii. 250, 251 etymology of the word, 250 n. Alamghir II., reference to, i. 114 w. Aliverdy Khan (Nabob of Bengal),
;
to, 106,
result of his treacherously slaying a Mahratta chief, ii. 249
John
Affidavits, the
Altamgha, explanation of the term,
Lucknow, history
;
of
the, ii. 257-272 Impey's account of the taking of the, 259-264 number of affidavits sworn, 264 ; and languages in which they were
;
ii. 167 n. Andre, Major, Washington's reference to the execution of, ii. 76 12 reference to the 7 Anne, c. statute, i. 194 n.
;
sworn, 264
a7id
mode
;
267
nature of affidavits of taking them, 265contents of an aflSdavit un;
Annual
Register,
for
1773,
full
account of the discussions which led to the Regulating Act, to be
298
INDEX.
;
found in, i. 13 supposed to have been written by Burke, 13 reference to an accoutit of tlie execu;
tion of Nuncomar in tlie, for 1788, 237 and n., 246 and to an abstract of the trial of Dr. Dodd,
;
physical condition of Nuncomar, 41 n. one of his letters to his sister contains a kind of life of Nuncomar, 42 supports Hast; ;
ings in a charge he
;
74 n.
makes against Monson, 54 and in his quarrel with the other members of the
is summoned before Council, 56 the judges of the Supreme Court, is accused of having received 81 a bribe, 88 denies it "on his oath and honour," 88 binds himself with Hastings and Van; ; ;
Archbnld, 108 n.
Mr.,
reference
to,
i.
Archdekin, Mr., references to,
i.
82,
102
Arrest on mesne process, effect of the iaw of, ii. 145 its introduction into India indefensible, 145 ; last vestiges of, abolished in 1869, 1 45 ?i. ; the authors of the Charter to bJame for its introduction into
;
sittart to prosecute
Nuncomar and
references
to,
Fowke,
101,
against,
88,
;
89
trial
;
102
for
conspiracy
202
note
by Justice
; ;
India, 146 or petitions, account of Arzees, various, referred to in the statements of Cornmaul Deen, i. 79 202, 204, 205 Auchmuty, Major, reference to,
et scq.,
i.
Hyde on the trial, 203 memorandum of Hyde's regarding, 203

;
;
134
the
n.
Aui-iol, Mr., his
Munny Begum's
ii.
testimony regarding seal, i. 57
reference to Fowke's accusation of, 204 reference to, ii. 92 his account of the life of Nuncomar, 273-289 ; and of the peculiar dealings of Clavering with liim, 289-291 his charges against the
;
Austin, H.,
223
Council, 291-296 Bathurst, Earl, reference to,

as
i.
17
B.
Baggs, Major, reference
to,
as an
appoints Impey chief justice, 33 has a share in settling the Charter, 146 Beckwith, W. M., clerk of the
;
Lord
Chancellor
agent of Francis, ii. 97 n. Bal Kishen, one of Hastings's servants, i. 48 Balkissen, a writer of Bollakey Doss's, i. 153 Bally, a village on the Hugli, reference to, 247 and n. "Barramuts, a cutcherry of," reference to and explanation of, i. 209
indictments, 108 w.
reference
to,
i,
Begums
258
of Oudh, reference to the story of the plunder of, ii. 256-
Behader Beg, the claimant, and one of the defendants, in the Patna reference Cause, ii. 164 et seq.
;
and
n.
Barwell,
reference to his 6 letter to, from Hastings, 11 appointed a member of the Sujireme Council, 16
Mr.,
i.
letters,
212 Behar, tlie East India Company is granted the right to the revenue of, i. 10 Schitab Roy at the head of the native administo,
;
tration
ii.
of,
fights with Clavering, 30 ; reference to a letter from, to his sister
20,
107
11; references to, 134, n., 125, 126, 155,

i.
247
on
the
subject,
30
?i.
his
Bckhambers, Mr., note by,

;
106
conduct, and letters, account of his character 31, 32 in the Echoes of Old Calcutta, 32 n. ; his statement as to the
character,
;
his reference to the indictment of Nuncomar, 108 ti. references to, 202, 203 ns.; examines the records of the Supreme Court for the
INDEX.
ii. 32 ?i., 33 76 n. Belvedere, Commaiil
299
author,
references to,
55
n.,
Deen, sent
references to,
for to the,
i.
80
account of a quarrel of Clavering's to Nuncomar's first in, 30 w. entered in, 50 to his letter, second letter in, 51, 54 to the
; ;
;
110, 126 a Benares, Hastings establishes system of government for the references to, province of, i. 25
;
date of a letter of the Munny references to, Begum's, 56 n. ii. 92 n., 95 62, 77, 254
:
Bentham, reference
Beveridge,
]\Ir.
121,
ii.
and
;
to
Hastings's
to the riots in, visit to, 256, 257 to (Jheyte Sing, Rajah of, 257 257 ; and to Impey's visit to,
;
to, ii. 194 7i. Henry, reference to CalaMa Review on Warren Hastings, i. 7 and of the view he takes of the fate of
his articles in the
260
Bengal, Jlir Jafir becomes Suhadar 10 is deposed, and Mir of, i. Cossim appointed, 10 the battle of Buxav (1764) may be considered as the origin of the British power the Company is granted in, 10 the right to the revenue of, 10 for the first seven years after this, the civil administration of, is in the hands of natives, 11 Mahomed Rlieza Khan being at the
; ;
;
Nuncomar,
his opinion as to
;
when
the enmity between Nuncomar and Hastings began, 23

;
his reference to an inaccuracy of Macaulay's. 54 n. his account of Commaul Deen, 79 n. ; his reference to the date when Nuncomar was first indicted for reference to his forgery, 94 n. account of Nuncomar's trial, 106 his error as to Tolfrey's evidence regarding the drawing of Nun;
;
head of it, 11 Hastings appointed to a writership in, 23 a system of civil adminorganises istration for, 25 explanation of the different offices held by the native rulers in, 40 n. Subadar Naib Subah of, 40 Naib of, 40 Nazim of, 40 none of the provinces of the empire so degraded reference to the difference as, 42 between the Bengal year and the Nagree year, 122 n. references
;
to
Mobarick ul Dowla, Nabob of, the statute 2 193, 194 d. acq. Geo. n. 0. 14 thought not to apply to, 222 reference to the criminal law of England being
:
indictment, 108, 109, his remarks on the temper of the jury in Nuncomar's trial, 143 11. and on the unfairness with which the trial was conducted, 176, 177 ns. reference to, 183 ; and to his observations on criminal justice, 185 n. his opinion that Hastings murdered Nuncomar b}' tlie hnnds of Impey, 189 examination of his account of the trial, 19.1-192 estimate of mistake of, his criticisms, 192 regarding the venlictsin the trials
ns.
; ;
comar's
for conspiring
against Hastings
n.
;
and Barwell, 203
his assertions
;
in force or binding on the natives
253 the principal parties in from 1774 to 1784, ii. 2-4 and
in,
; ;
their theories as to the best modes of governing, 2-4 references to,

;
Deen, 208 regarding Commaul blunder in to his referring Farrer's motion in arrest of his reference judgment, 216 n. to the addresses presented to the
;
judges, and to Impey's reply to
125, 126, 128, 155 population of, at the census of reference to, 247 ; 1881, 182 n.
20, 107 n.,
; ;
and
sions
to
of,
the
Mahratta
inva-
one addressed personally to him, 227 his reference to an incident which took place after the execution of Nuncomar, 250 asserts
;
;
249
;
Bengal
Consultations, nature and contents of, i. 4 reference to an
that the prosecution of Nuncomar would not have occurred, hud
not
Hastings suborned
Mohun
300
;
INDEX.
be
his remarks on Persaud, ii. 45 Hastings's denial of ever having of promoted the prosecution
brought before committed
it,
to
and ordered to gaol on the
Nuncomar,
parison
of
61
and his
to
Hastings Coningsmark, 61
comCount
Bills of exchange, theft of,
put on
the same footing as chattels of the same value, by 2 Geo. II. c. 25, s. 2, ii. 33 w. Board of Control, letter from the judges of the Supreme Court to the, on the jurisdiction of the Court, ii. 128 Bogle, Mr., his report to the Calcutta Board of Revenue, ii. 155 his account of tlie Patna Cause, 163, 176 and his opinion that it is imjjossible to dispense with native judges, 181, 182 reference 195 his report as to the juristo, diction of the Court over Zemindars, 212, 213 account of a suit in BoUakey Doss, which Guugahissen, the executor
; ;
charge, 94 ; recapitulation of the leading facts in the case of, 109113 ; account of the trial, and of the examination of tlie various witnesses, 114-139 Impey's sumestate of, ming uj), 139-170 divided according to the rupee,
; ;
140
Bombay, Hastings's
half
inar
of,
i.
efforts
on be-
26
the,
Bond, words of
is
;
which Nanco;
said to have forged, i. 112 reference to, 122?*.. account of the drawing up of the, and
remarks on signing, 129 et srq. the, by the Chief Justice in his

;
summing
up, 139 et seq. ; Mr. Farrer's remarks on the forgery of

;
;
Mr. Brix's, 146 exthe, 141 amination of Choyton Nauth as to the amount of the, 154, 155,
lis.
;
Farrer's legal objection to
the, 218
of,
is
plaintiff,
i.
and Nuncomar
;
defendant,
originally Judicial Cutcherry, but transferred to the Divvani Adalat in the plaintiff claims 1772, 90 from Nuncomar R. 127,630 7a as due to the estate of, 90, 91 the defendant sets up an account, signed by the plaintiff and his attorney, showing a small balance in his favour, 91 the Court, in doubt, demands a more minute explanation from the plaintiff, 91 who sends in an amended bill of complaint, 91 in which three fictitious bonds are mentioned, 91 copies only of these are produced, 91 evidence heard appears to tell in favour of Nuncomar, 91 and the Court recommends this comes to arbitration, 91 the plaintiff is adnothing, 92 vised by his attorney to proceed
; ; ; ;
;
90 ct srq. instituted
the suit in the
Booth, J. G., judge of the Diwani Adalat at Patna, ii. 223 Brahmin, reference to a, i. 97 importance of the life of a, 119, 120 Nuncomar urges his rank as a, against being executed, 231
;
hanged, 244, 245 andw., 247 sacred nature of the life of a, ii. 78 difBrahmins, reference to, i. 98 ference between the funerals of, and those of Mussulmans, 152 the head of the, of Bengal, 239 reference to ::three, who were to take care of the body of Nuncoreference to mar, 240, 242, 244 the privileges accorded by Hindoos
guilt
a,
; ;
of seeing
to,
ii.
71
,
Bristow, Mr sent by the Council as agent to Oudh, i. 43 British Museum, materials for the story of Nuncomar to be found in, i. 2 account of a document discovered among Impey's papers in
;
criminally against
Nuncomar
for
is
forgery, 92-94 ; application made to the Supreme Court
the, 255 and re. rtsrq.; pamphlets in the, by Francisand impey, ii. 96
in
is
the
matter,
94
Nuncomar
Brix, Mr., junior counsel for Nuncomar, his observation on the
IXDEX.
liis letter to forged bond, i. 146 Mr. Farrer on a desire of Nuncomar's, 160 n.; references to, 174, 187 letter of, on the verdict, 188; reference to, 219 presents a petition to the court for leave to ap;
301
Burke
6
;
was chairman, 254 remarks on the articles

; ;
ii.
of
impeachment against Hastings drawn by, 8, 9 his reference

to
Impey's
feelings,
87
reception
of Sheridan
after
his his
;
peal, 226
Brougham, Lord,
160
his opinion as to
to,
ii.
a valid marriage, ii. 34 Bullera cutcherry, reference
Bungoololl, reference to two persons so' called, i. 128, 151 Burdwan, the Provincial Council at, dispossess the Eanee of her
speech on the Begum charge, 90 reference to the cause of his aniremosity against Impe}', 113 ference to, 188 Busteed, W. E., author of Echoes of Old Calcutta, which see, i. 104 n. reference to, 245 his
; ;
;
guardianship, and confines her, ii. 149 summons issued against Mr. Higginson, the chief of the, 149 H. Austin appointed judge of the Diawani Adalat at, 223 reference to, 246 n. ; and to the Ranee of,
; ;
;
reference to Inipey's summing up, 141 n. i. reference to, ii. Ill n. Buxar, the battle of, references to,
;
1764,
i.
10, 123, 134.

to,
ii,
Byng, Admiral, reference
90
C.
292
Burke, probable contribution of, to the Annual Register, i. 13 supports the East India Company in the discussions on the Regulating Act of 1773, 14; Wraxall's account of one of his speeches on his account this measure, 14 w. of the origin and habits of Hastings, 21 n, probable reason of it, 21 n. his abuse of Hastings, and power of calling names, 27, 28 his eulogium on Francis, 30 n. his opinion of Hastings's minute, .52 references to speeches of, 63, his speech on the impeach64,71.9. ment of Hastings, 65 his view
;
;
Calcutta, references
constitution of the
to,
i.
12, 14
new Supreme
and
16-20
of
;
Council
of,
16
the
refer-
Supreme Court
;
of,
ence to the capture of, by Surajah Dowlah, 23 Hastings is appointed
President of the Council at, 24 landing of Francis at (1774), 29

letter
;
from Impey to Lord Lifford on the Bar of, 31 n. Impey

chief justice
appointed
of
;
the
Supreme
Court
of,
;
33
and
;
of the charges bi'ought by jSTuncomar against Hastings, 68 and of Hastings's behaviour in respect he is censured of these, 69-71 by a vote of the House of Com;
;
arrives at (1774), 33 notice of a scurrilous newspaper of, 36 n. references to, 48, 61, 66, 76, 77, 90 account of a suit in the Diwani Adalat, or Civil Court of,
;
90
et references to, 96, seq. 100, 108, 109, ns., 110, 122, 202, 209 ; question as to whether the statute 25 Geo. II. was or was
;
mons
for having used unguarded language against Hastings, 74 n. regards the prosecution of Nun;
not applicable
stances
of,
to the circumand as to 223, 224

;
when English criminal law was

introduced into, 222-225 address from a hundred leading natives of, presented to the judges of the reference Supreme Court, 228 effects of the execution to, 236 of Nuncomar on, 247 public opinion in, against Nuncomar,
; ;
; ;
comar
as a counter-stroke of Hastings's for the attack made by 89 his opinion that Nuncomar,
;
Hastings murdered Nuncomar by the hands of Impey, 189 reference to the reports of the committee on Indian affairs of which
;
302
INDEX.
;
249 references, in a letter of Impey's, to the state of feeling in, regarding Nuncomar, 255 ct seq. references to, ii. 9-13 contentions as to how it was held, 26
;
;
Cazi Sadhi,
ii.
the,
examination
of
and
to
w. -38
the grand
reference to a charge jury of, by Sir
Macaulay's account of his case, 250 Chambers, Sir Eobert, one of the judges of the Supreme Coiu-t, i. 35 formei'ly Vinerian Professor of Law at Oxford, 35 his judi; ;
William Jones, 36
applying
the forgery to the inhabitants of, 7075 ; references to, 126, 128 and to the suspension of the courts reference to, 155 of, 141, 142 unpopularity of the Court with the Europeans of, 199 et seq. T. D. Campbell, judge of the
;
; ; ;
remarks on English law of

;
cial character
;
and conduct,
35,
Diwani Adalat
at,
223
Calcutta Reviciu (vol. Ixvi. ), reference to three articles on Hastings
which appeared
in the, by Mr. H. Beveridge, i. 7, 23 and n., 79 n., 94 u., 108 n., 185 n., 203,
to,
ii.
36 Francis's opinion of him, 35, 36 he is nicknamed Sir Viner Pliant by a Calcutta newspaper, 36 n. references to, 105, 172, Fox's and Sir Gilbert 175, 176 Elliot's opinion of his conduct on the trial of Nuncomar, 177 n. the author's opinion, 178 became afterwards Chief Justice, 178 n. died at Paris (1803), 178 n. his opinion regarding the case of Roy 196 reference to, l-vadachurn, 218 his doubts as to the indict; ; ;
; ;
ment
in
Nuncomar's case being

;
216
Calvin's case, references
28, 31, 33 Campbell, Lord, his opinion as to a valid marriage, ii. 34 Campbell, T. D., judge of the Diwani Adalat at Calcutta, ii. 223 Campbell v. Hall, references to the case of, ii. 25 n., 26 n., 87 n.
Canadian
Freeholder, by Mascres, reference to,
Baron
ii.
26
and n. Canto Baboo, a servant of Hastings's, Nuncomar's assertion re58 refuses to appear garding, before the Council when summoned, 59 appears and is examined, 62 Clavering's resolution regarding, 62, 63 references to, 76,' 79 n., 84, 101, 102, 103, 187, 208, 229
i.
;
; ;
properly laid, 221, 222 proposes to seize Nuncomar's property as a forfeiture, 265 n. ; holds that the statute 2 Geo. II. c. 25, s. 2, does not extend to reference to his Calcutta, ii. 33 timidity or change of opinion, 33 his doubt as to the suitability of the English law of referforgery for Calcutta, 37 ence to, 54 and n., 65, 73, 74; his letter to Impey advising the seizure of Nuncomar's property, 77 n. references to, 78, 120 his opinion as to the jurisdiction of the Court in the Patna Cause, reference to his ap169, 170 pointment to the chief-justice; ;
;
Carnac,
Captain,
reference
i.
to,
i.
ship of Chinsurah, 234 Chandernagore, reference to, i. 122 Charles I. reference to, ii. 90 Charles II., reference to letters and to his patent of, ii. 29
, ;
134
n.
favouring
Count
Coningsmark,
Cartier, Mr., reference to,
110
61 n.
Cazi and
Muftis, account of the part they took in the Patna ii. 164 ct seq. reference Cause, to the character and salary of the further references Cazi, 176 n.
;
;
Charter, the, supplies some defects in the constitution of the Supreme
Court,
i.
16, 17
Impey is accused
;
of having tampered with it, 17 and is thought to have been the

original
to,
186
ct seq.
draftsman
of
it,
18
INDEX.
defines the civil jurisdiction of the Court, 18 and the criminal, 19 its extreme powers in the
;
303
reason for to, 71, 77
;
it,
;
62, 63 ; references his reasons for visit-
and
latter, 19, 20; references to, in
the
impeachment against reference to, 17 ; Impey, 9-13 terms of the, constituting the Supreme Court, 18, 19; reference and to the powers granted to, 29 by the, to the Supreme Court, for reprieving criminals, 66 ; powers given by the, to the judges, 124 n. et scq. Impey the draftsman
;
article
of
but finally settled by Bathuvst, Thurlow, and Wedderreference to the, 169 burn, 146 Charter Act of 1813 fixes the penof
the,
;
ing and countenancing Nuncomar, 69 afl[i davit of, in reference to Nuncomar, 100 minute recorded by, 101 addi'esses, with Monson and Francis, a letter to the Sujireme Court, 193, 194 extract from the examination of, in the first trial, 214 inference from his evidence in favour of 215 references to, Hastings, 225, 229 Farrer's account of an interview with, and of his rejec;
; ;
tion
232,
of
Nuncomar's
;
233
Nuncomar sends
to,
;
petition, his
alty for forging or uttering a deed, ii. 33 Chesterfield, Lord, reference to the execution of Dr. Dodd for forging
a bond on, ii. 74 Cheyte Sing, account of the imprisonment and rescue of, ii. 257 Chiswick, Mr., i. 23
on the eve of his execution, 239, 241, 243 presents a jjotition to the Council after Nuncomar's execution, 250 which is ordered to be burned by the common hangman, 250 references to, 251 n., 253, 259,
compliments
262,
et
seq.
reference to
Mac-
Choiton N"aut, Nuncomar's agent, i. examiIll, 129, 132, 133, n.

;
nation
of,
as to the
amount
of the
aulay's statement that Clavering swore to rescue Nuncomar at the foot of the gallows, 266, 267 ; and to his death being occasioned
bond, 154, 155, ns. Choit Sing, the case of, ii. 142 Cholera morbus, early mention
ii.
by Hastings
of,
insisting on his pre-
sence at his (Hastings's) wedding

party,
n. ; reference to, ii. to his attempt to dispossess Hastings of the Governor-
267
239
?i.
44
and
sort of plaster, i. 229 n. Chunar, reference to Hastings's sojourn at, and to the treaty of, ii. 257, 261, 262 Chyton Durr, reference to, i. 66 Chytun Nath, reference to, i. 59 Civil Court of Calcutta, account of a suit in the, i. 90 c^ seq.
Chunam, a
Generalship,
52,
82
his
45 references to, account of how he

;
came by the
;
petition of
Nunco-
mar which he presented
Clavering,
i.
;
General, appointed of the Supreme Council, 16 his character and conduct, 30, 31 fights his colleague, Bar30 account of another well, sketch of quarrel of his, 30 n. his character, 30, 31 hostility to Hastings, 43-45 is put of, into the chair at the Council after the departure of Hastings, during the examination of Nnnhis motion recomar, 56 ct scq.
member
;
to the Council, 92 objects to give a copy of it to the judges, 94 Francis's defence of, 104-107 references to, 108 ctscq., 118-121, Barwell's account of 133, 234
; ;
;
the
peculiar dealings
of,
with
i.
him, 289-291 Clive, Lord, references 15, 32 n., 64, 149,

seq.
to,
ii.
11,
et
279
to,
Cochrane,
Lord,
reference
ii.
266
n.
Ccckburn, Sir Alexander, reference to, i. 29 n. Codes of Civil and Criminal Procedure for
India,
garding Cantoo Baboo, and his
reference
to
304
their preparation
INDEX.
and subsequent
for the Administration of Justice in India, appointment ii. 5 of, they report against Impey's acceptance of the ofhce of the judgeship given by Hastings, 6 Concealment of birth, reference to a
;
Committee
re-enactment, 192, 193, ns. provisions in the, for taking evidence by the judge
;
arrangement and
reference to Imhimself, 194 pey's share in the preparation of

;
a civil code, 224
n.
Coja Petruse, i. 190, 209, 224

ii.
116,
22, 23 165 ct
117,
150,
trial for,
ii.
36
ti.
Coja Solomon, seq. Coja Zekereah, ii. Coke, Lord, reference to his abuse and to his of Raleigh, i. 28 statement as to the legislative power of the king, ii. 28 Colebrooke, Sir J., i. 14 Coramaul Deen, his accoimt of his interview with Nuncomar and Fowke, i. 79 Hastings's version Mr. of the interview of, 79-81 Beveridge's account of the position of, 79 n. ; is summoned before the judges regarding his main facts alleged statement, 81 a great part by, 82-84 and ns. of the story of, admitted to be
;
Coning.smark, Count, references to, ii. 61 the conduct of Hastings likened to that of, 61 Conquered countries, Lord Mansfield declares that the sovereign has
;
legislate for, without the concui'rence of Parliament, ii. 25 the act 6 and 7 Vic. c. 94 the expressly affirms this, 26 n. author's opinion as to the principles of law that apply to this, 27-30 Consolidation Acts, one of the ob
power to
;
true
by Nuncomar and Fowke,
their version 86-88 references to, denies he ever signed 101, 102 the deed, 113 his reasons why his name should be forged, 113, 114 his account of how Nuncomar obtained his (Commaul's) and of his conseal, 114, 115 116 nection with him, 115,
84
comments on
of,
;
and that
jects of the, i. 224 n. Coote, Sir Eyre, ii. 228, 230 Cordan Nowas, i. 114, 150 Cornewall, Sir G., ii. 89 Cossijurah Cause, the, one of the causes of contention between the Council and the Court, ii. 5 ; forms one of the charges against Impey, 7, 124 history of^ 209;
references to, 127, 128, 145, 147, 149, 150, 152, 157, 183, 190, 193, 202 account of the examination of, as to the truth of the statement in his arzecs, 204, 205 testimony of Moonsliy Sudder Deen as to the credit of, 206, letter of Hastings regarding, 207 various proceedings against, 207 Mr. Beveridge's assertions regarding his connection with Cantoo reference to his 208 l^)aboo, signing the deed, and to his seal, 208 examination of Hastings as
; ;
; ; ;
212 ; to his connection with, references to, 216, ii. 46, 59, 73,
134, 135, 142, 294, 295
220 brings the quarrel betwixt the Court and the Council to a Cossinaut Balioo sues crisis, 209 the Zemindar of Cossijurah in tlie Supreme Court for money lent, 209 and affirms that he is employed in collecting the revenue, and therefore within the jurisdiction of the Court, 209 the Governor-General is informed that the Zemindar is concealing himself to avoid service of the writ, to the damage of the revenue, 209 he consults the Advocatewho advises that General, 209 the Zemindar (not being subject to the jurisdiction of the Court) should not ajipear or plead, 21 he takes no further notice of tlie his process of the Court, 210 people beat off the sherifl' when he attempts to take him, 21 the Court issues a writ to seques; ;
INDEX,
trate
305
his
property,
210
the
;
sheriff collects a force
and pro-
the so, 210, 211 Governor- General orders a force of Sepoys to arrest the sheriffs attempts are made party, 211 to attach the officer in command actions are of the Sepoys, 211 brought against Hastings and the other members of the Council, 211 they refuse to plead, 211 the attorney of the Zemindar is committed for contempt, 211 the Council intimate to all in Bengal out of Calcutta to take no notice of the processes of the Court, 211 ; and that military force will be employed to prevent enforcement of them, 211 ; explanation of the action of the Council, 212 Bogle's account of the Court's claim as to jurisdiction over Zemindars, 212, 213; Impey's statement on the subject, 21 4 the real ground of the quarrel between the Court and the Counthe Council's view of the cil, 214 matter, 215, 216 their reference to the case of, Mahomed Rhejza Khan, 216 inconsistency of the Council, 216 result of their contention, 217 Impey's vindication of the proceedings of the Court, 217-219 insinuations of his enemies as to his being actuated by corrupt motives, 219 theauthor''s estimate of the whole, 220 Cossim Ali, i. 157
ceeds to do
;
;
members of, 29of Francis, 29, 30 of Clav-erof Monson, 31 ; of ing, 30, 31 32 Barwell, 31, Macaulay's account of the doings of the new members of, and of their hoseffect tility to Hastings, 43-45 of this ujjon the native mind, 44
ters of the four
32
Francis lays Nuncomar's letter containing charges against Hastings before, 47 Nuncomar sends another letter to the, 51 and requests to be allowed to apbefore the Council to pear prove his written statements, 51 writes a Hastings protesting minute regarding the charges and the manner of making them known to the Council, 51-54 Elliot's and Burke's opinion of this minute, 52 Hastings refuses to allow Nuncomar to appear as his accuser, 52 charges Francis,
; ;
Clavering, and Monson as being the real accusers, 52 declares the and quits Council dissolved, the Chamber, 55 Barwell also leaves, declaring the Council 53 tiie dissolved, majority put Clavering in the chair, and call in Nuncomar, 53 who makes a statement and produces documents in supjjort of it, 56, 57 Mr. Auriol and Sir John D'Oyley are consulted the touching genuineness of the seal of one of these, 57, 58 Nuncomar is is still further examined, 58 the
;
Cossinaut,
i.
128,
138,
151, 224,
229
Cossinaut Baboo, ii. 209, 253 Cottenham, Lord, his opinion as to a valid marriage, ii. 34 ii. Cottrell, Mr., collector, i. 207 207 Council, the Supreme, of India, constitution of, before the Regu14 Hastings's lating Act, i. account of, and of the position of the Governor in, 14, 15 constitution and powers of the new doubtful nature of Council, 16 these, 16 ; sketches of the charac; ;
;
majority then pass a resolution and order against Hastings, 59 legal steps to be taken in the comments on the matter, 60 illegal doings of the, 60 et seq. opinion of the most eminent lawyers as to Hastings's power to dissolve the, 70 and n. Hastings's account of the system of persecution pursued against him by the majority of the, 77 the
;
;
prosecution of Nuncomar is regarded by the majority of the, as a counter-stroke of Hastings's for the attack on him, 89 ; it so
VOL.
II.
305
excites
tlieir
INDEX,
indignation
that
give
which has been given

it is
;
they
;
visit
Nuncomar and
;
him what countenance they can, 89 comments on this, 90 Nuncomar petitions the, regarding tlie effect of tlie restrictions put upon
him in prison, 97 Impey to attend to of Impey to the,

;
tliey
it,
97
;
request reply
;
to him, 92 ; ordered to be produced and abstract of it, translated, 92 it is entered on the books 92, 93 of the, 93 Hastings moves that a copy of it should be sent to the Francis, Monson, judges, 93
;
; ;
and Clavering opposed

93 94
; ;
98
and
to
;
another communication of the, 99 answer of the, to this, 100, 101 miniite recorded by tlie majority of the, giving an account, from
;
to this, abstract of their reasons, 93, Francis moves that it be expunged from the proceedings of it is accordingly exthe, 94
;
their point of view, of tlie case of
Nuncomar, 101-103
the
letter
from
majority of the, to the Supreme Court regarding Roy another Radachurn, 193, 194 letter from the majority to the 198 remarks of the Court, majority of the, on the addresses presented to the judges of the Court, 228, 229 a petition presented to the GovernorGeneral and the, on behalf of Nuncomar, 231 suggestion of Farrer to the, regarding this 231 the petition, majority of 233 the the, reject it,
;
punged, 94 the Supreme Court has no jurisdiction over the Governor-General or members of the, 106, 107, ns. powers and exemptions granted to the, by the Regulating Act, 129 statement by the Governor- General in,
;
as
to
the
jurisdiction
;
of
the
Supreme Court, 132
minute by
the majority of the, censuring the conduct of the Court and of this the beginthe judges, 133 ning of the quarrel between the Court and the, 133 the case' of
;
;
author's reflections on this, with reference to their action afterwards, 233-237 they refuse to comply with a re(|uest of the judges asking for a copy of a
;
Deen still further Commaul embitters the, against the Court, the contention of the, 134, 135 that they were the proper int'erpreters of the provisions of the
;
Regulating Act,
;
an
outrageous
assertion of military power against law, 135 Impey's letter to Lord
paper presented the judges, 251
to,
;
reflecting
on
Rochford
violence
light,
and ask them (the judges) to say where they

obtained information regarding it, 251 the majority of the, record
;
of
sets the ignorance and the, in a striking

;
minutes containing offensive insinuations against the judges
and the Governor-General, 251, 252 opinion held by the majority of the, as to the supremacy of the king in India, ii. 2-4 and as to the position and functions
;
136, 137 they refuse to produce certain documents required by the Court in an acsend a minute to the tion, 138 Company on the subject, and
;
complain of their inability to govern the country caused by the

of the Court, 138the desire of the, to be 141 a uncontrolled by the Court, direct claim of arbitrary power, 143 no distinction drawn by the, as to judgments given by the Court and applications made to, 143 three distinct matters in dispute betwixt the Court and the, 144 ; the first, whether the Su-
interference
;
of the,
2,
the,
two
parties,
divided into the author's
opinion of Francis and his colleacauses of the gues in the, 4 quarrels between the Court and the, 4, 5 Clavering informs the,
;
;
of
petition
of
Nuncomar's
INDEX.
preme Court was entitled to interfere with the Company's servants
in their judicial capacity, 14G powers of the Governor-General in Council by the Regulating Act, 146 the Council contend that the Court have no power over the Company's servants, 147, 148 the Court assert that they have,
;
307
Court
of Exchequer Chamber, in a case of life decision of, assurance contract, ii. 35 Court of King's Bench, decision of, in favour of the King's power to legislate for conquered countries without the concurrence of Parand as to a life liament, ii. 25 assurance contract, 35 reference
; ;
and proceed to enforce it, 148, 149 in the cases of Mr. Higginson and the Ranee of Burdwan, and the Council of 149-152 Dacca, Seroop Chund, and Mr. Shakspeare, 153, 154 an advo;
;
to,
126 n.
Court of Quarter Sessions, Calcutta, ii. 22, 23

Court, the Supreme, of Calcutta, established (1773) by sections 1322 of the Regulating Act (13 Geo. III. c. 63), i. 16 constitution and powers of, 16 doubtful or defective nature of these sujjplied to some extent by the Charter, 17 Impey's account of the original draft of the Charter, 17 he is appointed chief justice of sketches of the the (1774), 33 characters of the judges of, 32of Cham38 of Impey, 32-35
;
;
appointed to assist the Governor-General and, 157 the Council contest the case of Dutt V. Hosea, and win, 157-159 they decline to take cognisance of the from provincial appeals in 1781 the act courts, 180 11. 21 Geo. III. c. 70, confirms the powers claimed by, and confers additional ones, 189, 190 Impey's account of a proclamation issued
cate-general
;
; ; ;
which a disrespectful made to "the English King," 210; the Governor-General and the, order the Court's officers to be airested by the
by the, in allusion is
of Lemaistre, 36, 35, 36 the judges of Hyde, 37, 38 of the, act as justices of the peace in this capacity for Calcutta, 81
bers,
;
37
they
summon
;
Hastings,
explanation of the measures taken by the, in the Cossijurah Cause, 211, 212; the real ground of the quarrel between the Court and the, 21 4 statement of the, as to the jurisdiction of the Court, 215-217 nature of the quarrel between the Court aud the, 236 three heads of difference, 236 (1) claim of the Court to exercise jurisdiction 236 (2) over over the natives, the English and native officers of the Company, 236 and (3) the light to try actions against the judicial officers of the Company,
military, 211
;
; ;
them, 81
Nunconiar, Fowke, aud Baiweli before and examine witnesses

;
and defendants, 81 Hastings, Barwell, and Vansittart are bound over to prosecute Nuncomar and
Fowke for conspiracy, 88, 89 ; the suit of Bollakey Doss's executor is transferred to, 94 motions of Mr. Farrer to the, to
;
compel delivery of original bond in the case, 95 delivery ordered

within a month by the, 95 Nuncomar brought before the, and committed for trial on a charge of forgery, 95 application made to the, for a habeas corpus to
;
;
237 examination of Macaulay's account of the quarrel between the Court and the, 247-255 Barwell's charges against the, 291-296 Court of Cassation, diverse decisions
;
;
of,
as to duelling,
ii.
35
bring up Nuncomar before the, it is refused by the, 97 ; re97 fuse also to admit him to bail or to change his prison, 97 Impey's vindication of the rights of the, time occupied by the, 98-100 and state of the judges, during
; ;
;
308
INDEX.
;
the trial of Nunoomar, 104 account of the trial before the, 114139 summing-up of the chief justice of the, 139-170 examination of certain charges made against the summing-up, 158161 ns., 170-172 Mr. Farrer's account of his intervievsr with the
;
;
as to the the trial of Nuncomar, 176 n., 177 and n., at scq. dealing of the, with Mr. Farrer's plan of defence, 180 Mr. Farrer's evidence as to the verdict, 187, 188 letter from the majority of the Council to the, re;
judges of the, and 172-176 discussion

fairness
its
result,
of the,
in
the establishment of, in the of impeachment against terms of certain Impey, 9-13 charters, of the Regulating Act, and of the Charter of 1773, as applicable to the, 18, 19 instructions of the Court of Dii-ectors as to the working of the, 20, 21 ; diverse decisions of, 35 cause of the complaints of Europeans against the, 59 absolutely no evidence that the chief justice of the, individually, or the judges
to
article
;
of
the,
collectively,
conspired
with Hastings against Nuncomar, 63 all the other judges of the, share with Impey the respon;
garding Roy Radachurn, 193, 194 reply of the, to the letter, 195 another letter and a 194, memorial from the majority of the Council to the, 198 reply of the, to these, 199-201 sittings of the, in connection with the different 202 Farrer's trials,
; ; ; ; ;
sibility
of
refusing
;
to
respite
Nuncomar, 65 powers granted by the Charter to the, for reprieving criminals, Q& position of the judges of, in reference to the punishment for forgery, 73 ;
;
motion to the, in arrest of judgFarrer's account ment, 216-218

;
of his plea as to the jurisdiction of the, 218-221 and as to the validity of the indictment as applicable to Nuncomar, 221-226
;
a petition pi-esented to the, for leave to appeal is rejected, 226 addresses presented to the judges of the, approving of their conthe judges of the, duct, 227 write to the Council regarda paper presented to it ing containing a false charge against them, 250 they ask for a copy of
;
no jurisdiction given to the, over the Governor-General or members of the Council, 106, 107, m^. ; Irnpey's defence of himself and his colleagues against the charges of 116-123 Francis, powers given to the judges of the, by the Charter, 124 w. description of the persons who were to be subject to the jurisdiction of the, 126 extract from a minute of Chief Justice Sir C. E. Grey as to the
;
;
it, any minutes relating to it, 250 the Council refuse to give them any information on the
or
;
subject, 251
East India
Company
the directors of the write a de-
jurisdiction of the, 127 and from a letter of tlie judges of the, to the Board of Control on the same subject, 128 conjectures as to the powers Parliament intended to confer on the, 130 it supersedes the powers of all the Company's courts in Calcutta, 130 reference to the relations between the
; ;
spatch (1777) to Lord Weymouth stating their grievances against, 253 view of the, as to the supremacy of the King in India, ii. 24 causes of the quarrels between the Council and the, 4, 5 the Europeans in Calcutta complain
;
of the doings of the, 5
references
Council and the, 131 minute by the majority of the Council censuring the conduct of the, 132, 133 this the beginning of the quarrel between the Council and the, 133 the case of Conimaul Deen causes an open rujiture between the, and the Council, 134, 135 Impey's letter to Lord Roch; ;
muEx.
ford sets the ignorance and vioIpnce of the Council against the, no in a striking light, 136, 137 distinction drawn by the Council
;
; ;
309
as to Zemindars, 213 Impey's statement as to this, 214 the real ground of the quarrel bethe, 214 Impey's vindication of the proceedings of the, 217-219
et
tween the Council and

seq.
;
between judgments given by the, and applications to the, 143
three distinct matters in dispute betwixt the Council and the, 144 the first, whether the, was entitled to interfere with the Company's servants in their judicial extent of the capacity, 146 jurisdiction of the, defined by section 14 of tlie R(!gulating Act, the Court, relying on this, 147 contend that they have jiower over the Company's servants, 147, 148 and proceed to enforce it in the cases of Mr. Higginson and the Ranee of Burdwan, 149-152 and the Council of Dacca, Seroop Cliund, and Mr. Shakspeare, 153, 154 decision of the, in the case of Dutt V. Hosea, 158, 159 effect of the decisions given by the judges of the, up to 1779, the act Geo. III. c. 70 161
his reference to the business of the, and the use his enemies make of it, 219 nature of the
;
quarrel between the Council and three heads of differthe, 236 ence, 236 (1) claim of the, to jurisdiction over the whole native (2) over the population, 236 English and native officers of the Company, 236 (3) and the right to try actions against the judicial officers of the Company, 237 examination of Macaulay's account of the quarrel between the Council and the, 247-255 Cowe, Captain, his account of the execution of Nuncomar, i. 246
;
; ;
(1781) restrains the, from interfering in any matter concerning the revenue, 189-192 unpopularity of the, with the Euro;
in 199-208 Calcutta, peans one of the causes of this, 201, 202 Impey's account of the the case of 202-205 cause, Creassy in the, 205 petition for in the, 205 Mr. Eous's changes opinion of how the proposed changes would affect the, 206
;
; ;
;
Creassy, James, case of, ii. 205 Crimes and punishments, extract from Paley's chapter on, ii. 54 Criminal law of England, question as to when it was introduced into Calcutta, and as to whether Nuncomar was or was not amenable to it, i. 221 - 226 the directors of the East India Com;
pany protest against its being in force or binding upon the natives
within
Supreme Court, 253
the jurisdiction of the the whole

;
question as to when it was introduced, and the extent of its

jurisdiction,
;
fully
discussed,
ii.
military
movement
its issue, 206, of the, in the Cossijurah Cause, officers of the, arrested 209, 210 acby a military force, 211 tions brought against Hastings and the other members oi' the
; ; ;
and
against the, action 207
Council, but they refuse to plead, 211 the attorney of the Zemin;
dar committed for contempt by the, 211 explanation of the measures taken by the Council Bogle's against the, 211, 212 view of the- jurisdiction of the,
;
18-37 power of the King to introduce the, into all conquered extract from 6 countries, 25 and 7 Vic. c. 94 affirming this reference to the power, 26 n. author's History of Criminal Law author's as to this power, 26 n. conjecture as to the time when it was first introduced into CalIndian opinion as to cutta, 29 30 - 34 this the, the point,
; ; ; ;
;
complacency in 1777, 75 reference to, the Council of Dacca, 75 ^. by

subject
;
of
irrational
310
t'roion Circuit
INDEX.
Companion, reference
n.
Desham Kawasty, 80 and
n.
to the,
i.
108
Crown, the law as to the legislative powers of the, without the conof Parliament, ii. 25of Commons address the, for the recall of Impey, 223 Crown Office, indictments by private
ci\rrence
Devil, etymology of, ii. 112 n. Digest of the Law of Criminal Procedure, reference to, i. 217 n.
30
House
Dinagepoor, ii. 223 Diwani Adalat (or
Civil Court of Calcutta), institution of, i. 90 ; account of a suit in, 90 et seq.

;
prosecutors formerly drawn by one of the masters of the, ii. 37
Curra-nama,
i.
190, 191
CiLrrumcherries, ii. 160 n. " Cutcherry of barramuts,"
Nunco-
suspension by the Supreme account of tlie Court, ii. 133 creation and constitution of the new courts of, ii. 222-224 Hastings's minute on, 225-228
its
; ;
mar holds
a,
i.
209 and
n.
Dodd, Dr., his execution,

159
Doorgotty, reference
to,
i.
ii.
74,
133 and
D.
n., 157'
Dacca, references
to,
i.
126, 130
reference to a letter from the Council of, complaining of the extension of English criminal law to India, ii. 75 n. case of Seroop Cliund, Mr. Shakspeare, and the Council of, 153, 154 the case of John Doe and the Coimcil of, 159-161 A. Duncanson, judge of the Diwani Adalat at, 223 Macaulay misled by Mill in reference to the case of, 250, 251 and n. Dalby v. the London and India Life Assurance Society, the case of, ii. 35 w.
;
;
D'Oyley, Sir John, i. Driver, Mr., references to, i. i:93, 94 and n., 183 Droz, Mr., ii. 165 n., 167 Duncanson, A., ii. 223 Dunning, John (Lord Ashburton), reference to his leadership in the case of the negro Somersett, i. 36 n. letter from Impey to, regarding the conduct of his colleagues Hyde and Lemaistre, 37 is one of tlie counsel for the Company
;
;
57, 58
in the
impeachment
is
65
n.
ings had Council, 70 n.
of Hastings, of opinion that Hastpower to dissolve the

;
letters
from Imii.
pey
44
;
to,
regarding Hastings,
Dargar-durgah, ii. 166 n. Davey, Serjeant, notice of, i. 36 . Davy, Captain, ii. 264 Day, Sir John, appointed advocatehis opinion in general, ii. 157 the case of Dutt v. Hosea, 157 advice to the Governor-General in the Cossijurah Cause, 209, 210 Delegatus non potest delegare, remarks on the legal maxim, ii. 172, 173 and n. Delhi, Emperor of, i. 13, 16, ii. 26
;
and his appointment to the judgeship of the Sudder Diwani

his (Dunning's) Adalat, 231 opinion as to the legality of the
;
letter from appointment, 232 Impey to, regarding his grievances, 245 Durnford, i. 108 n. "Durbar expenses," i. 110 Durham, Mr., 179, 188 Dutt V. Hosea, the case of, ii. 157
;
;
Sir
John Day's opinion
of,
157-
his opinion as to a valid marriage, ii. 34 Depositary, English and Moliammed-
Denman, Lord,
an law as to
Depositions,
ii.
159
E.
a,
i.
125
n.
old
mode
to,
of taking,
ii.
East India Company,

(1757),
i.
position of
194
the, before the battle of Plassey,
De
Quincey, reference
272
10
quarrels between
INDEXthe,
311
censuring
the
and Mir
Jafir,
10
the battle
conduct of the
;
of Buxar confers supreme power with the in Bengal on the, io " diwani," or grant to the, of the right to collect the revenue of
;
Bengal, Behar, and Orissa, 10, 11; nature of the government introduced into these provinces by the, whence it derived its legal 11, 12 how the power of powers, 12 in India originated, 12 the, analogy between the position of the, in India, in 1773, and the position of the English in Egypt discusat the present day, 12 sions in Parliament as to the right of Parliament to interfere with the Charter and territorial possessions of the, 13, 14 ; Hastings writes to the, regarding Nuncohe is ordered by the, mar, 38 to make use of him in prosecuting Mahomed Eheza Khan, 39 terms of the order of the, 39 ?i. list of counsel of the, at the impeachment of Hastings, 65 n. ; letter regarding Nuncomar from Lemaistre and Hyde to the Court of Directors of the, 95, 96 opinion of Chambers that ambassadors could be received by the, 196 the directors of the, write a despatch to the Secretary of State
;
; ;
another Court, 133 regarding a dispute about certain documents required by the conduct of the Court, 138-141 attorney of the, in the case of
Supreme
Scroop Chund, 153, 154 result to the, of the judgment in the Patna Cause, 190, 191 letter from
;
;
Impe}', Lemaistre, and Hyde to the Court of Directors of the, regarding the conduct of Mr. Mills, 200-202 ; reference to the
of government of extract from the case by tlie, before their counsel as to the appointment of Impey to the judgeship of the Sudder
arbitrary
mode
the, laid
203
Diwani Adalat, 225-228 ; they consult their counsel as to the legality of the appointment, 232 the Court of Directors of the, vote the removal of Impej^, 233 East, Sir E. H. , extract from a paper by, on the introduction of the criminal law into India, ii. 30-32 Echoes of Old Calcutta, references to,
;
i.
24, 32, 36,

ii.
104, 178, 237 ns.,
246,
Ill n.
Egypt, analogy between the position of the English in, at the present
day, and their position in India in 1773, i. 12 treatment of prisoners at Herrinbarah, similar to that of prisoners in Egypt last
;
(Lord Weymouth), stating their

grievances against the Supreme Court, 253 dispute as to whether the King of England or the, was
;
year (1884),
5
Eliz.
c.
ii.
200
sovereign of India, ii. 2-4 ; instructions sent out by the Court of Directors of the, with the Charreference to ter of 1753, 20, 21 firman granted to, regarding Calcutta, 26 ; and to the exercise of exchisive powers of government
;
reference to the statute, as applicable to Nuncomar's case, i. 222, 223. and n.. 224 repealed by the 11 Geo. IV. and 1 Will. lY. c. 66, s. 31, 223 n. reference to, ii. 33, 74
14,
;
;
letter from the judthe, 29 ges of the Supreme Court to the of the, I'egarding the Directors unanimity of their judgments, 65; the Company regard the sovereignty of India as their private and resent all inproperty, 125 terference by Parliament, 124 ; minute from the Council to the.
by
Ellerington, E., i. 230 and Letters of Sir Elliot, Life Gilbert, reference to, i. 105 n.,
ii.
86, 89 n.
Elliot,
is
Mr. Alexander, Nuncomar introduced to the new Council affidavit of, in through, i. 49 reference to reports as to the
;
release
100
trial
of Nuncomar by force, acts as interpreter on the
of
Nuncomar,
105
and
312
assists in
INDEX.
57
;
preparing the report 105 ; references to, 122, his explanation 134, 155 ns. " of the word barramuts," 209 re. Elliot, Sir Gilbert, report of the Committee appointed on the motion of, to receive evidence
of
it,
;
states the established
doc-
trine of the 18th century Whigs as to motive, 57 n. ; remarks on this doctrine, 57 n. ; and on Elliot's arguments regarding, 58 ; his controversy with Impey on the subject of respiting Nuncomar, 76-80 ; Wraxall's account of
against
of
Impey,
i.
articles
impeachment
;
against Impey, 5 for the impeachment, 5 his admission of Chambers's weakhis statement as to the ness, 36 physical condition of Nuncomar, 41 n. his opinion of Hastings's and estimate of the minute, 52 value of Nuncomar's charges, 67, 68, ct seq. regards the prosecution of Nuncomar as a counterstroke of Hastings's for the attack on him, 89 his comments on Mr. Farrer's account of the circumstances which led to the indictment of Nuncomar for forgery, reference to, 105 93, 94, ns.
preferred by, speech by, in
the speech of, in the debate on the motion to impeach Impey,
86
Elliot's
own account
of his
moving
speech, and the effect it had on the House, 88-90 Elliot, the Hon. A., ii. 8 Emotion, a public display of, more
common
90
formerly than now,
ii.
his opinion as to
who drew Nun;
comar's indictment, 108 n. his charge against Impey, and mode of dealing with it, his 170 opinion of Sir Robert Chambers, reads by v/ay of perora177 n. tion Macrabie's (the sheriif's) account of the execution of Nuncomar, 237-245 extract from the .speech of, as to the effect on the spectators of Nuncomar's execureferoniie to, 246 his tion, 245
; ; ;
; ;
Essays by a Barrister, ii. 271 n. Europeans in Calcutta and the 199-208 Supreme Court, ii. populaiity of the Court with the, 199 becomes unpopular, 199, 200 asserted cause of this, 200 the judges' account of the doings of Mr. Mills, 200-202 Impey's account of the cause of the Court's with the, 202-205 unpopularity notice of Creassy's case, 205
;
;
;
agitation for
juries,
;
trial
by European
205 proposal to invest the (iovernor-Gimeral with power over the Siipieme Court, 205 ; objectious to this, 206 the movement for these changes chiefly a
;
206 one, military Impey's account of the movement and its 207 muting' has originators, alwavs been a danger to India,
;
;
complaint against Impey laid on table of the House, ii. 6 reference to his .speech against his legal arguImpey, 7 n. ment, and the articles of charge, 8 n. references to, 11 ?i., 14, 20 n. he that no asserts power of criminal jurisdiction was given to the Supreme Court, 24, 25, and na. and that Calcutta
the
; ;
Evidence,
'
was not a conquered country, 26 and n. references to, 28, 37, 40,
;
207, '208 hearsay, extract from Gilbert's Lauj of Evidence on, i. 116 71. origin of the present law of evidence, 121 n. leniency of Impey in the trial of Nuncomar in dealing with certain parts of old mode of taking, the, 158 71. new by native clerks, ii. 193 mode, by the judge himself, 194 complaint of the judges regarding the labour involved in the
;
his description of the crime imputed to Irnpey, 56 ; and of the corrupt motive to be proved,
;
51
new S3'stem, 124 Executive authority, the holders of, liable to actions at law, if they
INDEX.
exceed their powers, a cardinal doctrine of English law, ii. 143
trial,
313
and of the share each judge took in cross-examining the witnesses for the defence, 172-176 reference to the evidence of,
;
FAEMF.r.s of the revenue, decision of the Supreme Court in reference to, ii. 168-170 effects of the judgment on, 183-185
;
Farrer, F. W., i. 31 w. Farrer, Mr., goes to India as secretary to CoJonel Monson, i. 31 ;
defends Nuncomar, 31 returns to England, and gives evidence before the Impeachment Committee, 31 ; Impey's account of his family connechim, 31 n. reference to, 64 ; tions, 31 n. his account of the origin of the
; ;
;
criminal charge brouglit against Nuncomar, 92-94 his motion in the Supreme Court for the delivery to Gungabissen of the original instrument charged to be forged by Nuncomar, 95 reference to his evidence before the Impeachment Committee, 96 ; is retained by Nuncomar's attorney for the defence, 97 directs Jarret to apply for a habeas
;
the House of Commons, discussion as to 177 and n. whether he thought' Nuncomar had a f tir trial, 177 n. et scq. his plan of defence, 180, 181 his evidence as to the verdict, 187 he supports the claim of before the Radachurn Roy Supreme Court, 195 references his motion in arrest of to, 197 judgment, 216 statement of the tliree points he made in moving, extract from the evi217, 218 dence of, as to proof that the statute 25 Geo. II. was not suitable to the circumstances of his exertions Calcutta, 224, 225 ou the trial inflicts permanent injury on his health, 226 and n. his reason for omitting reasons from the petition for leave to his attempts to get appeal, 226
before
;
up
a petition signed by the jury for a respite, 230 ; is blamed by Impey for doing so, 230 ; prepares
corpus to bring up Nuncomar, in order that he might move 97 for his being admitted to bail, or that his place of confinement should be changed, 97 his account of the time the trial reference to, lasted, 104 and ;;. 105 accepts Mr. Tolfrey's account of the trial of Nuiicomar
;
; ;
and presents a petition to the Governor-General and Council on his behalf of Nuncomar, 231 letter to Monson on the subject, 232 and account of an interview with Clavering, Monson, and
; ;
Francis on the matter, 232, 233 ii, 11 n., 36, 42, 52, 54, 82 Farrer, Sir Thomas, i. 31 n. Farrer, W. J., i. 31 .
references to, Fau,j
and correct, 105 his observations on the evidence in the trial of Kuncomar, 141 et scq. his examination befoi-e the Impeachment Committee on a question of Nuncomar's, 160 n. produces a letter from Mr. Brix on the same subject, 160 n. his reasons for not producing the proceedings in the Diwiini Adalat Court at the trial of Nuncomar, 168 n. his account of an incident whicli took place during the
as fair
; ; ;
; ;
and faujdar, ii. 276 n. Felony, restriction on counsel for prisoners charged with, i. 141 Ferrers, Lord, ii. 90 Forgery not a capital crime by the laws of India, ii. 11 unjust to hang a Hindoo for, 63 remarks on the English law as to, being applied to the natives of India, 70-75 Forsyth's Constitutiona,lLaiv,\i. 28 n. Foujdar, reference to the native officer so called, i. 78
; ;
314
INDEX.
old,
is
i.
Fowke,
,
77
his attempt
knowledge of the contents of the

letter,
to
corrupt
;
79
Commaul Deen, summoned before the

; ;
judges of the Supreme Court, 81 reference to, 82 account of his treatment of Commaul Deen
admits a great Deen's story part of Commaul to be true, 84 comments on Commaul Deen's version of Fowke's conduct and his own, 86-89 his letter to the GovernorGeneral and Council complaining of Commaul Deen's attack on him, 86 references to, 101, 102, 193 is tried and punished for
71.-86
; ;
;
83 and
51 his conduct at the Council during the examination of Nuncomar, 55-60 references affidavit of, in reference to, 71, 77 to ISTuncomar, 100 minute recorded by, 101 addresses, with
;
; ;
Clavering
letter to the
;
and Monson, Supreme Court,

;
conspiring against Barwell, 202204 reference to, 206 Hastings's account of his connection with, and of his belief in the 213
;
194 reference to, 229 account of his conversation with, regarding N"uncomar's petition, reflections on the con232, 233 duct of, in relation to last days of Nuncomar, 234-237 ; letter from Nuncomar to, 234 Nuncomar sends his compliments to, on the
;
;
193, Farrer's
of his execution, 239, 241, 243 moves that a petition of
eve
guilt
ii.
of,
215,
i.
216
reference to,
Nuncomar's be burned by the common hangman, 250 refer;
47
84, 101,
102 Fox, Charles James, i. 14, 36, 64 ?i. his observations on one point in Impey's address to the jury, 159 n. his opinion of the conduct of Sir Robert Chambers, 177 n. examination of his estimate of Impey's guilt, ii. 87, 88 cause
Fowke, young,
ences to, 251 n., 253, 259, 266 the head of one of the two his parties in the Council, ii. 2 theory regarding the supremacy of the King in India, 2-4 his letter to Lord North on the subject, 3 n. occupation of, during the early years of his return to
;
of his enmity against Impey, 111,
references to, 43, England, 6 n. his reasons for objecting to 82

; ;
114
Foxcraft, Mr., i. 105, 188 Francis, Sir Philip, appointed a member of the Supreme Council, i. 16 his story of the origin of Hastings, 22 n. ; the difference
;
give a copy of Nuncomar's petition to the judges, 93, 94 describes it as a libel only fit to be
;
burnt by the hangman. 94

n\oves that
it
and
by
between Hastings and, 28 n. is far the most remarkable mem;
unof the Council, 29 certainty as to his appointment, 29 conjectures as to whether he was or was not Junius, 29 and n. Macaulay's arguments on the and sketch of the subject, 29 n. character of, 29, 30 ; his opinion his of Judge Chambers, 35, 36 hostility to Hastings and to his effect of this on the policy, 43 45 native 44, mind, lays Nuncomar's accusing letter before his reply to the Council, 47 Hastings regarding his previous
ber
;
;
be expunged from the proceedings of the Council, 94 his speech on the Impeachment Committee in reply to Impey, 96 it is published as a 96 to reference pamphlet, another speech of, and to Elliot's reference to, 96 n. his connection with Travels in Europe,
; ; ; ;
Asia, &c., and payments made by, for the writing of it, 97 n. his statement of the charge Impey made against him, 97 his "habitual disregard of truth," 97 n. the author's remai-ks on his mode of meeting the charge, 98-101 and critical examination of his "miserable defence," 101 ct seq.; his
;
; ; ;
INDEX.
defence of the charge as it related to Clavering, 104-107 is disappointed at not being put on the Committee of Management of the Impeachment of Hastings, 111 he is cast in an action brought against him by Grand for seducthis the cause of his tion, 112
;
3:5
II. c. 2,
25 Geo.
applicability
references as to the of the statute, to Calcutta and to the case of Nun-
enmity against Impey, 111, 112 makes two reflections against Hastings and Impey, 114 ^^ seq. minute by Clavering, Monson,
; ;
comar, i. 218, 221, 223 and n., 224 reference to, 237 asserted not to apply to India, ii. 11 various references to, 19, 24 30 Geo. II. c. 24, did not extend to Calcutta, ii. 31 53 Geo. III. c. 155, s. 114-122, called the Charter Act, ii. 34 n. Gherub Doss Puttick, i. 122 and n.
;
;
objections to appointment to the Impey's judgeship of the Sudder Diwani Adalat, 229 dates of his departure from India and arrival in England, 231, 232 n. ; reference
;
;
and, censuring his Court, 133
the
Supreme
Gilbert's
to,
243
v.
Freeman
28 n.
Fairlie, the case of,

to,
ii.
French Penal Code, reference

35
Fullerton,
ii.
Colonel, reference to a in the impeachment of Impey, i. 172 his assertion as to how Calcutta was held, ii. 26 his remarks on the injustice of making forgery a capital crime in
Law of Evidence, on hearsay evidence, i. 116 71. Gleig's Life of Hastings, references exto, i. 11 n., 21, 22 n., 23 tract from, on the character of Hastings's second wife, 24 n. references to, 27, 38, 39 and n.. 79 63, 75, 78, ns., 206; Macaulay's reference to a letter reference to, 68 n. in, ii. 43, 44 Goddard, Colonel, ii. 134 Goodall V. Boldero, case of, ii. 35 n. Goring, Mr., i. 64
; ;
;
speech
of,
Graham and McLeane,

Hastings, letters
79, 236, 207,
to,
i.
agents for
75, 76, ns.
215
J.,
Graham, Mr.
letter to,
from
India, 72 and n. Furd, i. 79, 80 n.,
86, 88, 202,
204
G.
Ganges, swearing on the water of

the,
i.
Barwell, ii. 288 Grand, Mr., his action against Francis for seduction, ii. Ill and his wife becomes the n., 112 mistress of Francis, ii. 112 Grant, Mr., i. 63 Grenada, decision of the Court of King's Bench as to the King's
;
155
71.
Geo. III. and the Americans, ii. 188 2 Geo. II. c. 25, s. 2, references
to,
ii.
24, 33, 65,
70, 71, 73, 84.
right to legislate for, ii. 25 Grey, Sir C. E. (Chief Justice), extract from a minute of, on the jurisdiction of the Supreme Court
of Calcutta, ii. 127 Grindal, B., ii. 223
4 Geo. II. c. 26, requires all indictments to be in English, ii. 32 9 Geo. IV. c. 74, references to its
Gunga Govind
Gungabissen,
Sing,
i.
82 and n.,
his
suit
powers, ii. 29, 32 and n. 9 Geo. IV. c. 74, s. 64, ii. 31 n. 12 Geo. III. c. 20, ii. 31 13 Geo. II. c. 2, ii. 24 c. 63, 31, 107 n., 124 71., 126 n., 127, 129 ' c. 63, sees. 7 and 14, 146 n. 21 Geo. III. c. 70, amends and explains the Regulating Act, ii. 189, 191
; ;
84, 85, 205, 207
account of
against Nuncomar, i. 90 Ut seq. See under BoUakey Doss for the References to, 95, leading facts.
109,
110,
112,
n.
i.
126,
140,
142
and
to his inability to give evi-
dence, 165
Gurries, two,
84
n.
316
INDEX.
H.
his forei.gn policy, difficulties under
25,
26
the
his
which
Hannay, Colonel,
ii.
references
to,
262-269
n.
TJar-Kara, ii. 281 n. Hastings, History of the Trial 1796, references to, i. 6, 64 n.
Hastings, 22
of,
Pynaston,
notice
of,
i.
Hastings, "Warren, the author decides to give an account of the
achievements were performed, 26, 27 his character in private life, 27 the love and devotion of his the faults attributed friends, 27 to him by his enemies, 27, 28 the charge of lacking principle, 28 his policy contrasted with that of Francis, 28 n. he writes
;
;
impeachment
of,
i.
Mill's re-
mark on the effect the tragedy of Nuncomar had on the reputation of, 2 is appointed Governor of Bengal, 11 is ordered hy the Company to depose the deputy and does this Nabobs, 11 chiefly through the agency of who hoped to Nuncomar, 11 obtain the place of the deposed deputy in Bengal, 11 the offices and European are abolished, officers appointed, 11 Hastings's account of the now system of and of the con11 government, stitution of the Sui)reme Council before the Regulating Act, 14, 15 ; is created Governor-Gene16 his ral, ancestors, birth 21and (1732), parentage, 23 his schooldays 1742-1749)
;
; ;
to the Directors regarding Nuncois ordered to make use mar, 38 of him in prosecuting Mahomed
;
Eheza Khan, 39 he does so, and the result, 40, 41 the members of the new Council wrest the government from him, and thwart him on every hand, 43 effect of this on him, and on the native mind, 44, 45
;
his
Mahomed Eheza Khan,

abstract of
letter
;
letter to Sullivan regarding
46
n.
Nuncomar's accusing sums of against, 47-50 said to have been received money 49 Nuncomar's reasons for by, remarks of, to attacking, 49
; ;
and
acquaintance with Impey, 23 appointed (1750) to a his writership in Bengal, 23

first
;
;
Francis, after the reading of the enters a minute on letter, 50 the records as to the charges, and the mode of making them known, 51 accuses Monson of receiving charges against hira from Nundeclares the Council comar, 53
;
;
dissolved,
and quits the Chamber,
in (1750 1764) has relations of an unfriendly kind with Nuncomar, returns (1764) to England, 23 23 is sent out four years afterwards (1769) as second in Council his acquaintat Madras, 23, 24 ance with Mrs. Imhoff, 24 and his letters to her, marriage, 24 is appointed (1771) Pre24 n. sident of the Council in Calcutta, 24 abolishes the double govern-
early India,
;
career
55
terms of a resolution passed
23
by the Council regarding him,

59
;
exchanges
;
insults
with
ment
Orissa,
in
(1773,
; ;
Bengal, Behar, and and conducts 25 1774) the Kohilla war,

24,
;
25 reflections on his character, his own account of his 25-28 and of civil administration, 25
;
Clavering, 63 subsequent history of the charges brought 63 ct srq. Lord Thuragainst, low's account of the result of the author's exthese, 64, 65 amination of Nuncomar's charges against, and of his behaviour in respect of them, 67 ct srq. Burke's and Sir Gilbert Elliot's opinions on this point, 68 et seq. opinion of the most eminent lawyers as to the power of Hastings to dissolve the Council, 70 and n. comments on the assertion that the charges of Nuncomar
;
; ;
INDEX.
were never denied hy, 72-74 proof adduced that he did deny them, 73, 74 defence of, against the charge of wishing to have Nuncomar hanged, 74 letter to
; ;
;
317
216
;
his
agents
(1775)
authorising
them
tain
to resign his oflice on cercontingencies, 75 ; letter
withdrawing the authority, 75 and n.<; he declares the letter produced by Nuncomar as Munny Begum's a gross forgery, 76 his account of his contest with his colleagues, and of his resolve to
;
the facts charged crimes all done in open day, 248 references to, in the minutes of the majority of the Council containing insinuations reagainst the judges, 251, 252 ference to, in the Siyyar-iolMutaqhcriii, 262 ;4;he head of one of the two parties in the Council, ii. 2 the author's opinion of the integrity and good faith of, 3, 4 he is charged with having bribed Impey, 5 remarks on the articles
215,
against,
as
of
impeachment
8,
dissolve the meetings when they propose to put indignities on him, 75, 76 ; his account of Nun-
by Burke,
against, drawn references to, in
comar's temporary triumph, 77 and of the system of persecution pursued by his colleagues, 77 ; other accusations against, 78 accusations against Nuncomar made by, 79 his account of Commaul Deen's interview with Nuncomar and Fowke, 79-81 appears before the judges of the Supreme Court, 81 various references to, in the statement of
; ; ; ; ;
the article of impeachment charging Impey with the judicial murder of Nuncomar, 9-13 ex;
amination of the charge of conspiracy with Impey to get rid of Nuncomar, 38 ctsnq. extractfrom a letter of, regarding Impey, 44 arguments to prove the improbability of Hastings conspiring with
; ;
Commaul Deen, 82, 83, 85, 88 binds himself along with Barwell and Vansittart to prosecute Nuncomar and Fowke, 88, 89 reference to his having re;
leased
to
Nuncomar from
;
confine-
ment, 96
and to the rumour as Nuncomar's having been mali;

;
Graham and McLane, on Com;
ciously prosecuted by, 182-185 Impey's reference to this, 183 the majority of the Council request the Court to punish him as the prosecutor of Roy Radachurn, 194, 197 reply of Impey to this, 198 trial for conspiracy against, 202 letter from, to his agents,
; ;
;
against Nuncomar, 44-54 absence of all motive on his conduct of, throughpart, 55, 56 out, opposed to such a charge, 59 notice of an incident favourable to, 60 reference to the evidence of, denying that he ever countenanced the prosecution of Nuncomar, and remarks on the use made of this by his accusers, 61 Impey's defence of, against the accusations of Nuncomar, 8083 author's estimate of the
Impey
charges
made
;
by
Nuncomar
he requests the 84 against, petition of Nuncomar presented to the Council to be produced and
maul Deen, 206, 207 account of the examination of, in tlie first
his feelings towards and in the Nuncomar, 210 second as to his connection with Fowke, 212-214 his letter to his
trial,
; ;
moves that a cojiy be sent to the judges, 93 gives a corrected copy of it to Impey, 95 for so doing is charged by Francis with violating his oath of office, 114 et scq. and with
translated, 92
;
of
it
as to
having undue intimacy with Impey, 114 c< seq. peculiarities in the conduct of, to his colleagues,
;
agents expressing his belief in the guilt of Nuncomar and Fowke,
116 his letter censuring the Patna Council, 178 his minute regarding the constitution and
; ;
318
INDEX.
courts,
working of the new
and
mark, 61
173
?i.
;
his j^roposalto make Impey judge of the Sudder Divvani Adalat, or reCourt of Appeal, 225-228 cords a further minute fixing the salary to be attached to the office, 230 his reply to Impey's letter as to his refusing to accept the salary till sanctioned, and his personal tribute to him, 234 reference of, to the Diwani courts, his appointment of Impey 237 the beginning of a better system
; ;
delegatus
lay's
on the legal maxim non potest delegare, on the merits of Macaun.

;
Penal Code, 271 n. History, the most important part of our, connected with the administration of criminal justice, i. 1 importance of a technical knowledge of the law in writing, 1 Hobhouse, Sir Arthur, ii. -193 n. Home Secretary, duties of, in con;
oflegislation, 241-243 Macaulay's account of Impey's having been bribed by, 253, 254 account of his visit to Benares, 256 et seq.
;
his
dealing with
et seq.
;
Cheyte
Sing
and the Nabob Vizier of Oudh,

257
his
nection with judges, i. 236 Hosea, Mr. and Gora Chund Dutt, account of the case of, ii. 157 Sir John Day's opinion of, 157159 House of Commons, the, address the Crown to recall Impey, ii. 233
,
;
meeting
Impey's account of with, and taking

at
House
of Lords,
i.
reference
n.
to,
ii.
31, 32
the affidavits 260-264
Lucknow
for,
Hurst, Mr.,
134
Hussein
Ali,
i.
114, 150
Hearsay
116
n.
Gilbert's
extract from evidence, Lmo of Evidence on, i.

to,
i.
Huzrey Mull, Hyde, Mr.

;
i.l28,
Justice,
130 w., 151, 224 one of the
Ilcdaya, reference
125
n.
ii.
Henry
46
II.
and Thomas a Becket,

of,
ii.
judges of the Supreme Court, i. 36 his judicial character and conduct, 36, 37 Impey's letters
;
to
Thurlow and Dunning regard;
Herrinbarah, the prison 202
200n.
ing, 36, 37
letter
from Lemaistre
Hiba, and Hibdnama,

,
ii.
180
Hickey, Mr. evidence of, ii. 200 n. Hickey's Gazette, notice of, and of the originator, i. 36 n. reference
;
to,
246
;
Higginson, Mr., ii. 149 letter from Lemaistre, 150-152 Hingoo Lall, i. 109, 140
to,
History of Europe, i. 1 3 n. History of the Criminal Law, references to the author's on the examination of witnesses and on the defendants, i. 81 n.
and, to the Court of Directors regarding the charge against Nuncomar, 95 references to, 105, lOG to his conduct on the n., 172 trial of Nuncomar, 178 and to his death in 1796, 178 his opinion regarding the case of Roy Eadachum, 195 reference to a MS. note of, 202 and to a memorandum in the notebook of, 203
;
references to, 218, 220, 222 holds that the statute 2 Geo. II. c. 25, s. 2, extends to Calcutta, ii. 33 references to, 41, 54, 65, 120, 170
; ;
legal
consequence of standing on the power of mute, 181 11. the sovereign to legislate for a conquered country without the concun-ence of Parliament, ii. 26 n. on an ignorant confusion between motives and intentions in law, 57 n. on the murder of Mr. Thynne by Count Conings;
;
Hyder
Ali,
i.
42
I.
Ihtimam,Ihtimamdar,
ii.
110
n.
Ijara, Ijaradar, ii. 168 n., 212 Ikrar, and Ikrar-i-ddm, ii. 180 ii. Imhoff, Mrs. (afterwards wife of
INDEX.
Hastings),
references
to,
i.
319
of
24
appeal
and n., 267 n. Impeachment, articles of, preferred against Impey by Sir G. Elliot, i. 5 list of the, ii. 7 remarks on the, both of Hastings and Impey, 8 and n., 9 abstract of the article of, charging Impey with the judicial murder of Nuncomar,
; ;
;
respite,
to to, and declined examiNuncomar, 15

; ;
9-12 notice of the article of, against Impey in the Patna Cause, and extract from, 195, 196 Impeachment Committee, Report of references to, 92, 96 the, i. 5
ii.
;
;
nation of the charge of illegality, \Q ct seq. the statement of Impey as to when the criminal law of England was introduced into Caland the whole question cutta, 18 fully discussed, 18-37 the charge that his conduct at the trial was exunjust examined, 37, 38 amination of the charge of his
; ; ;
160, 168
m.
of
Sir
;
Impeachment, the, Impey, ii. 1-90
Elijah the House of a resolution (1782) it is for the recall of Impey, 6 transmitted to him by Lord Shel-
complicity with Hastings in desiring to get rid of Nuncojnar, 38 et seq. this assertion disproved by the evidence of Rouse and Farrer, 42 and by letters
; ;
Commons pass
he arrives in London burne, 6 in 1784, 6 and continues to hold his office till Nov. 1787, when he resigns, 6 Sir Gilbert Elliot immediately lays his complaint against him on the table of the six articles of charge House, 6 titles of are then prepared, 7 the charge relating to these, 7 Nuncomar being the lirst and
; ; ; ; ; ;
from both Hastings and Impey, 43-45 arguments to prove the improbability of such a conImpey took a spiracy, 44-54 more prominent part in the matter than either Lemaistre or Hyde,
; ;
54
fact that the jury
his accusers all overlook the was selected by

his,
an enemy of
them, 55
;
55
Nuncomar challenged
and that eighteen of
absence of all motive
for conspiring against Nuncomar on the part of either judges or
most important, he is heard at the bar of the House on it, 7 after evidence taken, and a full
;
debate, the charge is rejected Ijy the other charges 73 to 55, 7 never proceeded with, 7 order in which the matter was brought before the House, 7, 8 remarks on the articles of impeachment abstract of the generally, 8, 9 article charging Impey with the
;
Sir Gilbert Elliot's dejury, 56 scription of the nature of the and crime charged against, 56 of the corrupt motive to be proved, remarks on the established 57 doctrine of the 18th century
; ;
;
Whigs about motive,

on Sir Gilbert
;
57 n.
and
Elliot's
judicial
;
murder of Nuncomar^
9-
12 general remarks on the mode of making the charge, 12-15 the substantial charges four in number, 15 namely that he acted illegally in trying Nuncomar, 15 that he misconducted himself at tlie trial, 15 that he
;
;
regarding, 58 and Impey througliout ings opposed to such a charge as conthe conduct of Im59 spiracy, pey proves his innocence more strongly than even that of Hast;
arguments conduct of Hast-
ings, 62 to prove
conspired with Hastings to have Nuncomar prosecuted on a capital that from a wish to charge, 15 screen Hastings he refused leave
;
absolutely no evidence but a conspiracy, 63 strong evidence to prove that no such conspiracy ever existed, 63 the charge of wickedly refusing to respite Nuncomar, 63 Macauand lay's view of this, 63, 64 his final judgment of Impey in
; ;
the matter,
64
all
the other
judges
alike
responsible
with
320 Impey, 65
as to
;
INDEX.
of the counsel for the East India
powers of the Court reprieving criminals, 66 Impey's reasons for refusing to and respite Nuncomar, 67-69 his controversy with Elliot reauthor's garding this, 76-83 estimate of the fairness and legality of the trial of Nuncomar, 84, 85 and of the conduct of the
; ;
Company against a bill to restrain them from sending out supervisors to India, 33 is appointed (1773) chief justice of the Supreme Court of Calcutta, 33 arrives in Calcutta (1774), 33 what he
; ;
;
judges in refusing to respite him, 85 deems Impey entirely innocent of the charges brought against him, 85, 86 history of the Patna Cause (which formed
; ;
been, if Macaulay is to be believed, 33, 34 ; the author's estimate of his character, his son's account of his 34, 35
;
must have
2nd
208 209
;
article of
impeachment), 162-
of the Cossijurah Cause, account of Impey's ; appointment to the judgeship of

-
and
220
his death (1809), 35 35 his account of the conduct of his colleagues Lemaistre and Hyde, the most important 37 36, question relevant to the career oi', statement by, before the 74
life,
;
the Sudder Diwani Adalat, 220255 and of the Lucknow Affidavits, 257-272 Impey, Sir Elijah, plays the most
;
House of Commons regarding the confinement of Nuncomar by the judge of the Adalat, 96 refuses
;
to
admit Nuncomar
;
to bail, or to
prominent part in
story, i. 2 interest in
;
Nuncomar's
is
reason for the author's
allow his place of imprisonment to be changed, 97 the Council request him to attend to a petition
him, 2
known
at
of
Nuncomar's
97
;
for
moie
injury
the present day chiefly by Macaulay's attack on him, in his essay on "Warren Hastings, 2 this attack the author believes to be
;
freedom, Pundits
consults
various
caste
regarding
;
the
done
to
Nuncomar's
by
reference to wholly unjust, 8 his published Defence at the Bar of the House of Commons," 5 and to a collection of his letters and papers imthe British Museum, 6 references to his impeachment, and to the dates when it took his defence to the place, 8, 9 charge of having procured the introduction of illegal provisions into the Charter constituting the
;
' '
98 informs imprisonment, the Council that the judges are the proiier persons to apply to for relief, 99 the Council reply
to
Impey's response, 99, answer of the Council to, 101 summing up of, on the 100,
100
;
;
this
Nuncomar, 139-170 contrary to custom, allows the prisoner the benefit of his counsel's
;
trial of
observations on the evidence, 141 his remarks on Mr. Farrer's

;
Supreme Court, 17
is
supposed
;
observations,
Brix's, 146
;
141-146
on Mr.
to have been the original draftsman of the Charter, 18 makes the acquaintance of Hastings at Westminster School, 23 his his letter to Lord Liftbrd, 31 7i. account of Mr. Farrer, 31 n. his birth (1732), parentage, and edua student (1751) and cation, 32 fellow (1757) of Trinity College, is called to Cambridge, 32, 33
; ;
;
ing with
his leniency in dealcertain parts of the

;
evidence, 158 n.
Mr. Fox's
re-
point in his (Impey's) address to the jury, 159 n. importance attached by, to the last examination of Kissen
;
marks
on
one
Juan
Doss,
159-164
of
and
7is.
the bar (1736) and practises on the Western Circuit, 33 is one

;
charges made against his summing up, 158-161 lis. view taken of the conduct of, at the trial, by the promoters
examination
;
INDEX.
of the impeacliment (1778), 170 Sir Gilbert Elliot's mode of dealing with the charge against, 170 reference of, to the charge against Hastings, 183 his defence of his own personal conduct on the trial, 186; the aiithor's ojiinion of the summing up of, 186 opinion of, regarding Mobarick ul Dowla
; ; ; ;
S21
the table of the House, 6 and six articles of charge are prepared,
;
of these, 7 he is heard at the bar of the House on the

6, 7
;
list
first
charge,
after
Nuncomar's
evidence
case, 7
and,
taken,
the
is
motions
for his
;
impeachment
rejected, 7
the other articles of

;
reply of, to the request of the majority the Council to have Hastings of punished, 198 his reply to another letter and memorial from the Council, 199-201 references to letters of, 208 n. his reasons for thinking the indictment in Nuncomar's case well laid, 223 has no recollection of a petition for leave to appeal, 227 bad taste of the reply of, to an adhis dress presented to him, 227 reply to the remarks of the miijority of the Council on the Hindoo address presented to him, 229 his description of some offensive minutes recorded by the majority of the Council against himself and his colleagues, 251
; ;
;
and Roy Radachurn, 195
charge never proceeded with, 7 remarks on the articles of im-
against, 8, 9 abstract the article charging Impey the judicial murder of critical exNuncomar, 9-12 amination of the article in detail, 12-90 statement of, as to the introduction of criminal law into extract from Calcutta, 18 et scq. a letter of, to Dunning regarding Hastings, 44 accused of conspir-
peachment
of
with
ing with
Hastings
;
to
destroy
arguments proving the improbability of such a

his accusers overthe fact that other three judges sat along with him, 53 and that not one of them was and that Impey accused, 53, 54 took a less prominent part in the matter than Lemaistre and Hyde,
;
Nuncomar, 38
thing, 39-53
look
n. 252 his letter to Governor Johnstone on the trial and execution of Nuncomar, and defending himself from the charges brought against him on that account, 255261 refuses to allow Nuncomar's
;
54
reference to his having been

;
property to be seized as a forfeiture, the author's opinion of 265 n. the integrity and good faith of, ii.
;
charged w ith having received a bribe from Hastings, in the form of the judgeship of the Sudder Diwani Adalat, or a Court of Appeal, 5 Civil parliamentary committee report
3, 4
;
is
bribed with the place of judge to the Sudder Diwani Adalat, 56 nature of the crime imputed to, 56 corrupt motive to be proved, 57 remarks on Elliot's argument as to motive, 58, 59 the conduct of, tends to prove his innocence more strongly than even that of Hastings, 62 he is charged with
;
;
against his acceptance of
it,
wickedly refusing to respite Nuncomar, 63 the author's defence of, on this charge, 65 dseq. reference to the letter of, to Governor Johnstone as explaining his motives
;
;
and the House of Commons pass

a resolution (1782) recalling him, 6 he leaves India in December
;
1783,
and
June 1784,
office till
arrives in London 6 ; and retains his
November
;
1787,
when
he resigns, 6 Sir Gilbert Elliot's complaint against him is laid on
for refusing to respite Nuncomar, 67 his controversy with Elliot, on the subject of respiting Nuncomar, 76-80 he reads a letter to the House from Chambers to him regarding the seizure of Nuncomar's his defence property, 77 and n.
;
;
of Hastings against the accusation
VOL.
II.
322
;
INDEX.
the
of Nuncomar, 80-83 his account of how Hastings gave him a copy of Nuncomar's petition, 95; reference to a letter of, quoted by incident which Francis, 106 n. inflamed the animosity of Francis against, 112, 113; Francis's charge of undue intimacy with Hastings, 114 c< scq. ; extracts (iUustrative of his style and his manner of making his points) from the pamphlet of, in reply to Francis, list of five charges 116-123
;
;
appointment,
230
and
to
:
231, 232 declines to accept the salary til!
Dunning and Thurlow,
sanctioned by the Lord Chancellor, 232 ; the Court of Directors vote his removal, 233 the House of Commons address the Crown for his recall, 233 Lord Shelburne transmits the resolution of
;
;
brought against, 124 letter from, to Lord Rochford giving his first
:
impressions as to the administrait also sets tion of justice, 131 the ignorance and violence of his opponents in a striking light, an incident which 137 136, shows that he was not subservient to Hastings, 138 his criticisms on a minute of the Council complaining of the Supreme Court
; ;
;
him, 233 his letter to the Council defending his acceptance of the appointment, 233. 234 Hastings's tribute to, 234 remarks on what he had laid himself open to, in accepting the amount of the salaries office, 238 of the two offices, and account of his pecuniary condition, 240 his appointment the beginning of a
recall to
;
: ;
better system of legislation, 241243 objections urged against it, his defence of tlie 243, 244
; :
demanding
139-141
ns.
;
certain
;
documents, the Charter drawn
his decision as to the by, 146 jurisdiction of the Court over farmers of the revenue (in the Patna Cause), 169 his remarks on native judges, 176 n. salary his observations on of, 176 ?i. the doings of the Patna Council, notice of the article of 180, 181
; ; ; ;
in the against, Patna Cause, 195 ; extract from, 194, 195 ; his account of the unpopularity of the Court with
impeachment
the Europeans in Calcutta, 202205 his statement as to the jurisdiction of the Court over Zemindars, 214 his vindication of the proceedings of the Court in the Cossijurah Cause, 217-219 his reference to the business of the Court, and the use his enemies make of it, 219, 220 his appointment to the judgeship of the Sudder Diwani Adalat, 226 amount of the salary to be athis tached to the oflice, 230 letter to his brother announcing
; ; ;
;
motives which prompted him to accept the oflice, 244, 245 nature of the legislative work done by. while he held the oflice, 246 Macaulay's references to, in the quarrel between the Court and the Council, 247-253 and to his appointment to the judgeship of the Sudder Diwani Adalat as a direct bribe, 253, 254 his own account of his connection with the Lucknow afiidavits, 259-263 his appeal to the House at the end of his examination, 263; the number of aflidavits sworn by, 264 testimony as to his knowledge of Hindustani and Persian, 265 Macaulay's account of the Lucknow the author's affidavits, 267, 268 examination of its misrepresentations, 268-270: Macaulay's literary murder of, the moral ruin of, 272 Impey, Mr. Elijah B., reference to, and to his copy of his father's
; ; ;
and to his Life defence, i. 6 n. of his father, 7 estimate of, 7 his view of Macrabie's account of
;
;
reference to
Nuncomar's execution, 245, 246 an incident put forth
INDEX.
by, in defence of his father, 249 his reply to two statements of Macaulay's as to the feeling
; ;
323
drawn it, 108 n. Sir Gilbert Elliot's opinion, 108 n. ; Pitt's, 108 n. ; Tolfrey's evidence on
this point, 108, re109, ns. ference to Farrer's objection to a general verdict in Nuncomar's case without the specifying counts of the, 217 and n. reference to the, in O'Connell's case,
;
against Hastings and Impey, and as to a threat of Clavering's, reference to his Life 266, 267 of his father, ii. 6 n.
;
India, analogy between the position of the English in India in 1773, and their position in Egypt at
217
as to
n.
Chambers's
in
opinion
;
the present day,
i.
12
Plassey
; ;
the,
Nuncomar's case
;
and Tel-el-Kebir contrasted, 12
their effects much the same, 12 the result of Plassey, Buxar, &c.,
the part which Hastings played in the referforeign policy of, 25, 26 ence to the justice of trials in reference to the British, 185 n.
fate of, 12, 13
; ; ;
on the
being properly drawn, 221, 222 Impey deems the, well laid, 223 reference to all indictments being in Latin, ii. 32 Ireland, references to, ii. 29
Ives, T., ii. 223, 224, and n. Izara, Izardar, ii. 168 n.
government of, between 1776 and 1788, 254 different theories as to the government of, ii. 2-4
; ;
J.
forgery not a cajjital crime by the laws of, 11 remarks on the applicability of the English law of forgery to, 70-75 no one in,
; ;
Jackson, Mr., i. 123 Jarrett, Mr., Nuncomar's attorney, retains Mr. Farrer for the defence,
97 applies for a habeas corpus to bring up Nuncomar, 97 references to, 187, 197
i.
; ;
except the Governor-General and Council and the Supreme Court, had any defined legal rights, 155 the administration of justice in, by the English can never be wholly satisfactory, 187 - 189 Codes of Civil and Criminal Procedure for, reference to their
; ;
preparation and subsequent rearrangement and re-enactment, 192, 193 ns. reference to eighteen courts established in different towns in, 246 and n. the beginning of a better state of legislative things in, 241-243 India Office, references to, i. 2 ii. 9 n.
; ; ;
Johnson, Dr., Johnstone, Governor, notice of, and of letters to, from Impey, 255 and n., ii. 67, 202, 205 Johnstone, Sir J., notice of, i. 255 n. references to, ii. 89, 90 Jones, Sir William, doubts whether
i.
;
35
the statute 2 Geo. II. c. 25, s. 2, extends to Calcutta, ii. 33 reference to a charge of, to the Grand Jury of Calcutta regarding indictments in cases of forgery, 36
;
Joydeb, Chowbee, i. 129, 130-132, ns., 133 n., 152, 156 w.

Judges, objections to, acting as justices of the peace, i. 81 reference to their connection with Impey in the so-called judicial murder of Nuncomar, ii. 103 ; 102, powers given by the Charter to the, 114 n. complaint of the, as to the labour involved by the new mode of taking evidence, 194, 195 ; amount of work done
;
;
Indictment
number
n.
;
Nuncomar, against of counts in the, i. 107 difference as to the number

;
;
counts necessary formerly, and now, 108 n. (by 107 n. whom they are drawn on circuit, in England, and at the Old Bailey, 108 n. ;) question as to who drew the, 108 n. Judge Lemaistre have supposed to
of
;
by
the,
examined
now, and a
Y 2
324
INDEX.
L.
judicious system of control observed, 243, 244 Judicial murder, a, after a fair trial, examination of the absurdity
Lahoke, prison
ii.
at, ii.'202
Lansdowne, Lord, "his squadron,"

89
i. 22 n. Patna Council),
involved
in,
i. i.
189
Juggut Chund, "
49, 56 Junius," conjectures as to Francis
Law, Mr., his defence of Hastings

in reply to Burke,
evidence being, i. 29 n., 30 as to character and handwriting,

;
Law, Mr.
ii.
(of the
177
(of the
n.
ii.
112 and n.
;
Law, Mr.
ii.
French factory),
Jury, condition of the, on the trial observation of Nuncomar, i. 140 of, on a document presented to, 143 n. inquiry of the, as to the character of Commaul Deen, 150 ?i. ; references to the, in the
;
284
Siyyar-ul-Mutaghsrin, 263 and reference to a charge to n., 264 the Grand, by Sir William Jones, ii. 36 no charge ever made
;
;
against the, in
;
Nuncomar's
case,
;
55 eighteen challenged, 55 the Europeans in Calcutta desire civil cases to be tried by a, 59,
205
Justices of the peace, objections to judges acting as, i. 81 judges of the Court of Queen's Bench justices of the peace for every county in England, 81
;
K.
Lecky's Eighteenth Century, reference to, i. 13 n. and to his History of England, ii. 76 and n. one of the judges of the Lemaistre, Supreme Court, i. 36 his judicial character and conduct, 36, 37 Impey 's account of, and complaint letter of Jusregarding, 36, 37 tice Hyde and, to the Court of Directors regarding the charge is against Nuncomar, 95, 96 supposed to have drawn the indictment against Nuncomar, 108, 109 ns. Dr. Williams's suggestion to, on the subject of Gungareference to, 172 bissen, 165 n. to his conduct on the trial of Nuncomar, 178 and to his death in 1777, 178 his opinion regarding the case of Roy Radachurn, 195 references to, 220, 222, ii. 41, 54, and n., 65 ; and to his his intimacy with Francis, 118 contention regarding the powers of the Court, 148 information
;
;
KdnHngo, ii. 282 "Karar-nama,"

191,
ii.
n.
i.
sworn against Higgi"nson

135,
before,
156,
158,
50
Kasim Bey, i. 56 Khalsa, the, or native exchequer,

references to, 224, 242
i.
addresses a letter to Highis judgment ginson, 150-152 in the case of Scroop Chund,
;
;
149
154
Life assurance, different decisions of the courts in reference to a contract of, ii. 35
Lifford, Lord,
i.
100,
ii.
160, 161,
Kissen Juan Doss, i. 105, 109 n., llOn., Ill, 120 71., 122 examination of, 123-125 various re;
;
31 n.
ferences
to,
;
134-138,
154,
156,
Lollau 133
Doman
Singh,
i.
1.
129, 132,
158-160
importance attached by
ns.,
Loughborough, Lord,
17
Impey
191,
ii.
to the last examination of,
Lucknow
ii.
affidavits, history of the,
159-161
161-164, 187, 188,

i.
256-272
visit to,
ii.
ii.
50
or Kiursinama,
Lucknow, Impey's
191
et seq.
261
Khursinama, and n.
Lush, Lord Justice,
265
n.
INDEX.
i. 247 Lyndhurst, Lord, ii. 28
325
Lyall, Sir A.,
n.
M.
Macaulay,
Impey,
i.
Lord
2
;
liis
attack
on
;
based on insufficient
grounds, and wholly unjust, 3 the author's admiration for him, 3 splendour of the services he rendered to India, 3 Impey's son's reply to the attack of, 7
;
; ;
reference to his essay on Hastings, 21 his sketch of the character of

;
Francis,
29,
30
;
and
his argu-
ments
prove that he was Junius, 29 n. examination of the he brings against Impey, charges 33-35 his account of the moral
to
;
;
character and physical organisation of Nuncomar, 41 n. his description of the doings of the new Council, and of their hostility to Hastings, 43-45 inaccuracy of, in a statement regarding Nunreference to the comar, 54 n. conduct of Impey as described in the State Trials, and as described his account of the exeby, 186 cution of Nuncomar contrasted with the original, 237-245 references to his literary skill and
; ;
;
Impey innocent of the charge made against him by, 85 ; his reference to the violation of the zenana of the Ranee of reference to Burdwan, 150 n. his being misled by Mill, 194 w. and to his functions and work as legal member of the Council, 242 references to his Penal Code, his account of the 246, 271 quarrel between the Court and the Council critically examined, 247255 his account of the Lucknow the author's affidavits, 267, 268 examination of this account, 268270 and his tribute to the genius and works of, 270-272 Macdonald, Major, 269 n. Mackintosh, Mr., his connection with Francis in the production of Travels in Europe, Asia, &c., ii. 96, 97 and n. Macrabie, Mr., returns the grand his account of the jury, i. 229 execution of Nuncomar, 237245 Impey's reference to the account of, 245 references to, 246, ii. 55 Madras, Hastings appointed (1764) second in Council at, i. 23, 24
; ; ; ;
;
declares
his
24
from, in 1771, his eiibrts on behalf of, 26
departure
Mahab Roy, account

127 and
n.
;
of,
f.113,
general references discussion as to, 246, 249, 260 to his use of a passage in the
taste,
ns.
;
;
245
references to, 130 n., 132, 151, 157, 164
266, 267 his reference to Mrs. and n. his indebtedness 267 n. Imhoff, " to the "Mohammedan Chronicler, 267 n. ; his opinion as to the legality of the execution of Nuncomar, 24 readiness with which
Siyyar-ul-Mutaqh::rin,
; ;
Maha Rajah Rajah Bullub, 84 Mahomed Commaul, 128, 129,

i. i.
130
M., 131,
132
ns.
Mahomed Rheza Khan, deputy Nais under i. 11, 38 be prosecuted for misconduct, 39 is tried and acquitted, and his office abolished, 40, 41, 46 is accused by Nuncomar of com-
bob of Bengal,
arrest, to
;
he accepts charges against Imexamination of his pey, 41 charge of conspiracy against Impey, 43-45 makes no reference to
; ;
mitting every sort of oppression and corruption, 47, 48, 54 ; reference to, 261
of their invasions Mahrattas, Bengal, ii. 249 incident in these, 249 decides Mansfield, Lord, i. 185 ,. that the King has power to legislate for conquered countries with;
the jury, or to the number of them that Nuncomar challenged, 55 his view of the charge against
;
Impey of wickedly refusing to reand final Nuncomar, 63 judgment on him, 64 the author
spite
;
526
INDEX.
149
;
out the concurrence of Parliahis opinion as to ment, ii. 25

;
his reference to the case of

;
legality of Impey's appointment to the judgeship of the Sudder
Diwani Adalat, 232, 233 Marriage, opinions of Lords Brougham, Denman, Lyndhurst, Cottenham, and Abinger as to what constitutes a valid, ii. 34 Martin, Colonel, ii. 262 Martirus Shabiu, trial of, ii. 33
Baron, reference to his Canadian Freeholder, ii. 26 Mayer, Mr., i. 138 Mayo, Lord, reference to, as ViceMaseres,
roy, i. 248 ILayor of Lyons v. the East India Company, the case of, ii. 28
Scroop Chund, 154 his misrepresentations regarding the Patna two extracts Cause, 196, 197 from, illustrative of this, 197, 198 his imputations upon lawyers require examination, 198 n.
;
;
his misrepresentation of Impey's letters to Lord Weymouth, 217 n. ; his reference to Impey's salaiy, 240 n. misleads Macaulay
.
as to the facts in the

;
Dacca
case,
;
to reference to, 259 ?4. 251 n. his treatment of the Lucknow

affidavits, 268, 269 Mills, Mr., his treatment of prisoners in the Herrinbarah, ii. 200, 201 interference of the Court in the matter, 202 Minto, Lord, his mention of punand of mutinies kahs, i. 104 n.
; ;
Mayor's Court, Calcutta, reference
and a petition to, i. 93, 94 and n., ]11, 118; and references to, 120, 142, 150 to a charter granted to, by Geo.
to
documents
in,
by the
Company's
troops,
ii.
I.
ii.
18
references to,
29, 30,
31, 52
Meer Mahomed Cossim Cown, or Khan, the Nabob, i. 112, 123 Meer Ussud Ali, i. 133-135, 157,
188, 190, 256
Merivale's Life of Francis, references to, i. 28 W.-30, 35, 43, 212, 234, 250, 267, ii. 3 n., 41-43, 55, 80, 96 and n., 216 Metcalfe, Sir C, reference to a minute by, ii. 127 n. Mesne process, the law of arrest on, ii. 145 and n. the authors of the Charter to blame for its introduction into India, 146 Macaulay's reference to the effects
; ;
*-
of, 247 Middleton, Mr., i. 229, ii. 262 on the effect the Mill, James, tragedy of Nuncomar had on the 2 i. reputation of Hastings, reference to bis meagre notice of the trial of Nuncomar, 6
;
208 71. Minutes of Evidence, reference to, ii. 30 71. Mir Cossim, is made Subadar of his quarrels with Bengal, i. 10 the Company, 10 is overthrown, 10 references to, 47, 133, 134, 263 Mir Jafir, becomes Subadar of is deposed iu Bengal, i. 10 favour of his son-in-law, Mir Cossim, 10; reference to, 41, 47, 48, 114 Nabob of Moliarick ul Dowla, Bengal, references to, i. 193, 194 letters from, 196 memorial from, to the Supreme Court, 198 reply of the Court to the terms of, 199, 201 reference to, ii. 2
; ;
Mofiissil litigation, reference to, ii. 229 ; and to Mofussil courts, 242
Mogul Emperor,
129
i.
10,
56 n.,
ii.
Mogul empire, account

history
42, 261
of,
of a curious
author,
i.
and of
its
general references to his ffistory, 38 and n., 63, 70 ns. and to himself, 249 his opinion as to the legality of the execution of Nuncomar, ii. 24 his accuracy not .so great as generally supposed.
;
; ;
Mohammedans,
suits between, iu the Provincial Councils, referred to the Cazi and Muftis, ii. 165171 Macaulay's reference to the violation of the harems of, 251, 252
;
INDEX.
Mohasala, or mohasali,
ii.
327
276 n.
Mohun
ney
Pevsaud, Nuncomar's accuis attorsation of, i. 49, 50, 56

;
to
Gungabissen
against Nuncomar, power of attorney from Bollakey Doss, 109, 111 ; his interview with Nuncomar regarding the bonds, 110 ; and account of the Comsettlement with him, 111 maul O Deen's account of a his eviconversation with, 115
; ; ;
in his suit 91 receives a
dence against Pudmoliun Doss, 139 Impey's observations on the evidence of, 165
;
of, 219 n. 236 and to the Diwani Adalat at, ii. 157-159, 223 Morley's Digest, ii. 146 n. Morse, ii. 223 Mort do cluen, name given in India to cholera morbus, ii. 257 n. Motive, the 18th century Whig doctrine as to, in relation to the and referlaw of libel, ii. 57 n. ence to the History of the Criminal Law on the subject, 57 w.
Nuncomar
reference
a native
;
to,
Sir Gilbert Elliot's
remarks as
to,
Monson, Colonel, appointed a member of the Supreme Council, i. 16 takes out Mr. Farrer as his sketch of the 31 secretary, character of, 31 hostility of, to
; ; ;
58 Muftis and the Cazi, account of their connection with the Patna Cause, ii. 164 et seq. Munny Begum, nature of the office accused held by, i. 41 and n.
;
Hastings,
43-45
accused
by
by Nuncomar of bribing Hastings,

48 statements of Nuncomar before the Council regarding, 56-58 comments on the discrepancies in these, 60-62 references
;
of receiving charges against him from Nuncomar, 53 ; his reply to this, 54 proposes a motion to call in Nuncomar, 51, 55 and assists at his examinareferences to, 71, tion, 56 et seq. 77 ; affidavit of, in reference to 100 minute recorded isuncomar, by, 101 addresses, with Francis and Clavering, a letter to the
Hastings
to, 63,
64, 66, 68, 76
Munshi Sudder
to,
i.
Deen, reference
examined as a witness in the trial of Nuncomar, 116-118 references to, 150, 190
82
;
is
his
refer193, 194 letter from ences to, 225, 229 and interview Farrer to, 232 with, 232, 233 Nuncomar sends his compliments to, on the eve of
Supreme Court,
testimony as to Deen's credit, 206
Commaul
affi-
Murchison, Mr., physician, his
davit as to Nuncomar's condition,

i. 97, 98, 103 w. Murchison, Sir Roderick, i. 97 Mussulman, a, on oath must be effects to, of believed, i. 206 swearing falsely, 206 Mute, the consequence of standing, in law, i. 180 n., ii. 31 Mutiny always been a standing danger to India, ii. 207, 208 Mutsaddi, ii. 276 n.
;
his execution, 239, 241, 243 references to, 251 n., 253, ii. 82 his reasons for objecting to give the judges a copy of Nuncomar's petition, 94 reference to
;
a conversation of, with Francis, 104, 105 reference to, 107 et seq., 119, 121, 133, 234
;
Monson, Lady Anne,
i.
232,
ii.
82 Moore's Indian Appeals, reference to, ii. 28 Moorshedabad, residence of the
N".
Nabob Vizier
treaty with, 257, 258
of
Deputy Nabob' of Bengal,
Nuncomar
ences
accuses
11 Hastings of
i.
;
Oudh, Hastings's and its result, ii.

ii.
having been bribed

to, 57, 61,
at,
48
refer-
Naderah Begum,
164
of,
et
seq.
112,
123,
128
reference to the ease
248
328
Nagree, accouuts ence to, 124
in,
i.
INDEX.
91
;
refer-
secuting
Mahomed Eheza Khan,
Nagree
the,
.
year,
difference
between
and the Bengal year, i. 122 n. Naib, Nabob, and Nawab, explanation of the terms, i. 40 n. Naib Subah of Bengal, i. 40 ?!..
Napier, Sir Charles, reference
to,
ii.
39, 40 ; but is disappointed in his hoped-for reward, 40 ; Macaulay's sketch of his moral character and ph3'sical organisation, 41 n. Sir Gilbert Elliot's and
;
194
?i.
,
Naylor, Mr. attorney of the Zemindar of Cossijurah, committed by the Court for contempt, ii. 211 I'eference to the case of, 253 Nichol, Mr., of the British Museum, i. 203 11. North, Lord, reference to the ministo himself, 65 try of, i. 13 letter from Francis to, on the of the King's sovereignty subject in India, ii. B n. ; he endeavours to procure the recall of Hastings, 68
; ;
Nujm
ul Dowla, titular
i.
Nabob
of
deputes his authoCompany, 40 n. Nuncomar, the author decides to give an account of the story of, i. 2 where the materials for a full account of it exists, 2 the most
Bengal,
;
38
rity to the
Barwell's account of his physical condition, 41 n. ; the author's estimate of his character, and of his moral and physical surroundhis letter to the ings, 41, 42 Supreme Council accusing Hastings of corruption and oppression, abstract of its contents, 4747 sends a second letter, and 50 requests to be allowed to appear before the Council in support of account of his statements, 51 his examination by the new memcomof the Council, 56-60 bers ments on the discrepancies in the statements of, 60-63 statement of the case of, as printed in the Parliamentary Reports, 66 the author's examination of the Burke's statements of, 67 ^t scq. and Elliot's view of the charges of, references to, 74, 75 68 ci seq.
;
two charges brought against, by Hastings conspiracy and forgery,

account of his attempt to corCommaul Deen, 79-81 is summoned before the judges oF this the Supreme Court on Deen's Commaul charge, 81 and of the account of the affair, part Nuncomar took in it, 82a great part of this story 88 admitted to be true by, 84 comments on the version of the affair by Nuncomar, 84 - 88 ;
78
;
prominent part in this story played by Sir Elijah Impey, 2

;
rupt
this story the book, 3 ; he
of the aids Hastings in deposing the deputy Nabobs of Bengal and Behar, 11 hoping to obtain the place of the deposed in Bengal, 11 is deeply deputy mortified when he finds the offices abolished, 11 his first unfriendly relations with Hastings, 23 remarks on the orthography of the
; ;
main subject
Hastings,
sittart
Barwell,
and
Van-
name Nuncomar, 38
n.
he was
;
bind themselves to pro-
governor of Hoogly in 1756, 38 succeeds Hastings as collector of Burdwan, Nuddea, and Hoogly, 38 obtains the place of Deputy Nabob of Bengal (1765), 38 but his conduct is so bad that the Council displace him, 38 Hastings writes to the Directors rehe aids 39 garding him, 38, Hastings to the utmost in pro; ; ;
;
secute him for conspiracy, 88, in the meanwhile he is ad89 mitted to bail, 89 the majority of the Council visit him to give
; ;
him what countenance they

89
;
can,
account of the circumstances

;
which led
to his arrest for forwhich arose out gery, 90 et si'.q. of the suit brought against hinr by Gungabissen, as executor of
INDEX.
Bollakey Doss, 90 result of the the plaintiff ad91, 92
; ;
329
suit,
vised
to
proceed
criminally
against, 92-94 ; he is ordered to deliver the papers belonging to the estate of Bollakey Doss on their within a month, 95
;
delivery and examination he is committed for trial on a charge letter from Leof forgery, 95 maistre and Hyde to the Court Imof Directors regarding, 95
; ;
236 summary of the incidents connected with the trial of, up to his execution, 237 account of the execution of, by Macrabie, the sheriff, and by Macaulay, account of the effects 237-245 of, by a native gentleman, 247 state of public feeling as to the trial and execution of, 249 ; re;
; ;
;
pey refuses to admit him to
bail,
or to allow his place of imprisonment to be changed, 97 ; he

petitions the Council, stating that his caste would be injured by the restrictions put upon him, 97 Impey s?nds a physician to minute of examine him, 97
;
;
ference to a petition of, presented by Clavering to the Council, and which is ordered to be burned by the common hangman, 250, 251 references to, in the minutes of the majority of the Council containing insinuations against the references to judges, 251, 252 tlie case of, in the reports of
:
Francis, Clavering, and Monson facts on the case of, 101-103 connected with the trial of, and
;
the time it lasted, 104 number of counts in the indictment of,

;
and question
;
as to
who drew
it,
107-109 ns. recapitulation of the facts charged against, 109113 ; copy of the deed said to be account of the forged by, 112 trial of, and of the various witsumnesses examined, 114-139 ming up of Impey, 139-170 Mr. Farrer's account of an interview with, during the trial, and its result, 172-176 feeling of, as to the unfairness of his discussion as to trial, 172-176 whether he had a fair trial, Mr. Beveridge's 177 et seq. account of the defence of, 190192 Hastings's belief in the Farrer moves guilt of, 215, 216 in arrest of judgment on behalf
; ;
parliamentary committees, 254 Impey's account of the crimes and trial of, in a letter to Governor Johnstone, 255 et seq the story of, as related in the 261Siyyar - ul - Mutaqherin, 266 native impression at the time was that Hastings prosecuted him, and that he was
;
punished for accusing Hastings, 267 references to, in the article of impeachment charging Impey with the judicial murder of, ii. 9-13 reference 22 n. et to, amount he obtained by the seq.
; ; ;
forgery,
68 n.
Sir
tween
;
controversy Gilbert Elliot

;
be-
and
Impey regarding the respite of, 76-80 history of the petition of, presented to the Council by
Clavering,
91
account of the
Nurr
Sing,
i.
273-289 48, 59, 61, 68
et seq. life of,
Barwell's
0.
216-218 judgment is
of,
but
fails,
and
;
passed on, 218 discussion as to whether Nuncomar was liable to the criminal Farlaw of England, 221-226 rer's efforts to get up petitions on behalf of, 230-233 letter to other petiFrancis from, 234 tions presented in favour of,
; ; ;
Oath
115
of secrecy, remarks on an,
ii.
Occermanna, acts as interpreter to becomes Mr. Farrer, i. 172 Clavering's banyan, 173 CI. and O'Connell v. Regina (11
;
Fin.
of,
i.
155),
reference to the case

n.
217 and
330
INDEX.
69
Old Bailey, reference to sentences

uf death passed at the,
ii.
which the action arose, 164 husband of the plaintitf leaves

;
Orissa, the East India Company is granted the right to the revenue
of,
i. 10 reference to, 125, 126, 155, 247
;
ii.
107
n.,
Oudh, Hastings provides for the subsidy and defence of, i. 25 reference to the treaty with the Nabob of, ii.'257 and to the case
;
;
of the
Begums
of,
257-258
Pa LEV,
reference to his chapter on

ii.
Crimes and Punishments,
54
Palk, Mr., reference to, i. 96 Panjab, legislative powers of the Crown exercised in the, ii. 28 Parkes, Mr., extract from his essay on the History and Discovery of Junius, i. 28 n. his iliscovery in reference to Francis, ii. 97 n.
;
Parliamentary Committees, Reports of the, on Indian Aflairs, 17821786, i. 4, 66

I'arliamcntary History, references to Vol. XXV. 23 n. Vol. xxvi. i. 5, 17 n., 96, ii. 6,
7, 13, 18,
24, 26, 65, 72, 77,
95 ns. Vol. xxvii.

n., 108,
5, 6,
13 w., 68, 74, 93

ns.,
170-172 and ns., 183, 186, 237 n., 245 n., ii. 56, 77 ns., 88, 96 n. Patna Cause, the, one of the causes of contention between the Council and the Court, ii. 4, 5 forms one of the charges against Impey, detailed account of, 1637, 124 198 tried before Impey, Chambers, and Hyde, without a jury, and lasts ten days, 163 length of Impey's judgment, 163 Mr. Bogle's account of the case, 163, Naderah Begum brings an action against her deceased husband's nephew, Bohader Beg, and the Cazi and two Muftis (native law ollicers) of the Provincial Council of Patna, 164 nature of the 164 the facts out of plaint, 159
; ;
her in possession of great proBehader Beg, claimperty, 165 ing to be heir, presents a petition to the Patna Council, 165 prays that the property be protected, and that the Council order the Cazi to ascertain his rights, 165 the Council order the Cazi and Muftis to secure the property till a decision is given, 165 they take possession of it and of the and compel the house, 166 plaintiff' to take refuge with some fakeers, 166 ; with whom she remains for some months, 166 in the meantime, the Cazi and Muftis make a report to the Council, 167 ; they say Behader Beg claims the property as the adopted son of the deceased, 167 that the widow claimed under a will and deed of gift, 167 and that they were both forged, 167 they recommend the jiroperty, excluding the Altamgha, to be divided into four shares, 167 three to Behader Beg, and the fourth to the widow, 167 the Council order the Cazi and Muftis to divide the inheritance in accordance with the report, 168 Coja Zekereah is arrested for forgthe ing the documents, 168 widow is expelled irom the house, of the whole of the prodeprived perty, and declared to be entitled to one-fouvth only, 168 for these wrongs she brings her action, 168 the first point decided was as to the Court's jurisdiction over Behader Beg, 168, 169 the next point was the justification set up, 170 Behader Beg pleaded he was only a litigant, and took what the other defendants (who were officers of justice) gave him, 170 the Cazi and Aluftis pleaded that all acts done by them were done as acts of duty, 170, 171 ; eight objections macle to this, 171 the Court decides that the facts relied
; ; ; ; ; ;
; ;
INDEX.
on by the defendants cannot be
given
in
true,
331
evidence,
because,
though
;
they would be no
justihcation of their conduct, 171 importance of the eighth judgment of the objection, 172
;
;
Plasscy, the battle of (1757), i. 10 the result of, cor,trasted witli that of Tel-el-Kebir, 12 Play dell, Mr., his di-smissal for
;
Court on this non potest delegare, 112 and hnpey's judgment on the whole the Court affirm case, 173-176 that the deeds were genuine, and amount of not forged, 176 letter damages awarded, 177 to the Council from Hastings
;
;
point delegatus
signing an address to the judges, i. 229 reference to, ii. 202 n.

;
"Pleading evidence," reference to, ii. 14 and n. Price, Mr., ii. 199, 200 ns. Pritchard, J., clerk of the Crown,
reference to,
i.
108)i.
Privy Council, reference to the decisions of, as to sentences of death,

ii. 69 Prodi-omone Doss,
i.
censuring their irregularities, 178,
109
n.
Impey's observations on the doings of the Council, 180, 181 Mr. Bogle's account of the
179
;
Councils
and
of
;
the
native
reflections on judges, 181, 182 the importance of the case, 183 et seq. and result to all the
;
Provincial Councils, the Supreme that they are Court decides courts of justice, ii. 159, 161 reference to their mode of conducting business, 178, 179 the Patna Cause proves them to be worthless as courts of justice,
;
parties concerned, 189-193 Patna, residence of the Deputy Nabob of Behar, i. Hi, 223 ;fjeference to Impey's visit to, 259 PatparrahTalook, reference to, ii. 160 Pavasey, a European foreigner, reference to the case of, ii. 142 Peacock, Sir Barnes, prepares Codes of Civil and Criminal Procedure
for India, ii. 192 n. Pearce, Colonel, his e.^:ertions in getting up the petition against the Supreme Court, ii. 206 Peiarce, Mr., ii. 209 Pembeiton, Judge, reference to, ii. 61 n. Persian language, reference to the, in which the forged bond was
181, 182, 185

Ill,
et seq.
i.
Pudniohun Doss,
109 and
n..
120, 122, 135 et seq., 142 etscq., 158, 167, ii. 73 n. Pudmohun Roy, co-attorney in the
case of Bollakey Doss, i. 126 Punkahs, reference to, i. 104 and to

;
the invention of swinging, 104 n. Pundits, various, consulted by luipey regarding Nuncomar, i. 98 reference to this, 103
R.
Radachund Metre,
m the,
written,
i.
155
155 n.\ what is 40,000 ?i. Mr. Shakspeare's

;
reference to account of the case of, i. 220 the trial of, for forgery, 22, 23 reference to, 71 Radshaky men, reference to, i. 209
;
;
testimony as to Impey's knowledge of the, ii. 265

Petition of
Nuncomwr, presented by
Clavering to the Council, history of, ii. 91-123 Phousdarry cutcherry, ii. 133 Fiada, or ixada, ii. 276 n. Pitt's opinion as to the drawing of Nuncomar's indictment, i. 108 n. and as to the innocence of Impev, ii. 88
;
Rajah Goordass, appointed Dewan to the Subadar of Bengal, i. 40 and 41 n. bribes said to have his been given on behalf of, 48 statements regarding Nuncomar's
; ;
charges against Hastings, 66 reNuncomar's last ference to, 68 242 roferences to, 239, 241, amount of money and effects in; ;
herited by, 265
Rajah Nobkissen, 164,224, 229
i.
119, 120, 148,
332
INDEX.
Revenue Courts, decision of the Supreme Court in reference to
the powers of the, 161 Richmond, the Duke to, i. 30
Robertson, Henry, Roe, ii. 159 Robinson, Mr. i. 230
,
Raleigh, Sir Walter, reference to Lord Coke's abuse of, i. 28 Ranee of Burdwan, dispossessed of lier guardianship and confined by the Provincial Council of Burdwan, ii. 149 letter from Lemaistreto Mr. Higginson on the subject, 150-152 Regina v. Collipersaud Ghose, the case of, ii. 33 Regina v. Millis, the case of, ii. 34 n. Regina v. Thomas and others, the case of, ii. 50 n. Regulating Act of 1773 (13 Geo. III. c. 63), i. 13 difficulty of understanding the spirit in which it was framed, 13 three parties to be considered in the framing of it, 13 ; where a full account of the discussions which led to the act is to be found, 13 question
; ; ; ;
ii.
158, 159.
of,
reference
alias
Richard
Rochambeau,
to,
Washington's
letter
regarding the execution of Major Andr^, ii. 76 Rochford, Lord, letter from Impey to, ii. 131 Regonaut Roy Geoo, i. 112, 123 Romans dividing the as, reference to the custom of, i. 140 Roopnarian Chowdree, i. 128, 151 Rotas, i. 134 Rous, Mr., his opinion of the
on which they chiefly turned, 13; how the act was aft'ected by the view Parliament took of the Company's rights, 13, 14
to the, 33, 81,
;
reterences
;
ii terms 11, 17 of the provision of tlie, constituting the Supreme Court, 18 references to, 29, tl07, 125 ; difficulties in the interpretation of the, 126, 127 ; reason for the vagueness of the language of the, 129 references to the powers conferrred on the Coudcil and the Court by the, 146-148 references in 1781, the act to, 170, 171 21 Geo. III. c. 70 explains and amends the, 189 references to,
; ;
;
changes proposed to be made in the Supreme Court, ii. 206 and as to the appointment of Impey to the judgeship of the Sudder Diwani Adalat, 233 Rouse, Mr. Boughton, reference to the evidence of, i. 90 and n. his account of the proceedings in the suit of Gungabissen against Nuncomar, 90, 92 reference to his evidence before the Impeachment Committee, 96, 118 n., ii. 20, 21, ns., 42 Roy Radachurn, son-in-law of Nun; ;
;
212, 215, 217, 219, 243, 253 Reports of the Parliamentary Com-
mittees on Indian Affairs, 17821786, i. 4 Reports of the Select Committee, references to, i. 66, 70, ii. 127 n. Report of Touchet's Committee, i.
5
;
references
to,
95,
97,
98,
99,
208 m., 246, 100, 250, 251, 253, 254, ii. 5, 65 ri., 77 n._ 131 reference to two papers in
;
Appendix to, 155 and 7i., 163,248

Reprieving criminals, powers granted by the Charter to the Supreme Court of Calcutta for, ii. 66 old method, in England, of, 69
;
comar, references to, i. 83, 84, 89 ; a bill of indictment is fountl letter against him, 193, 194 from the majority of the Council to the Supreme Court regarding, it is claimed for him 193, 194 that he is beyond the jurisdiction of the Court as a minister of a Mr. sovereign prince, 194, 195 Farrer supports this claim before the Court, 195 it is rejected by the Court, 195 a list of "cre" dentials put in in support of the case of, 196 affidavits by, 196, 197 presents a petition to the judges on behalf of Nuncomar, 236 his parting with Nuncomar, 239
;
;
Roy Royan,
references to,
i.
101, 102,
IISTDEX. 103 and to the etymology of the word, ii. 275 n. Rupee, estate of Bollakey Doss divided according to the, i. 140 Russell, Francis, notice of the trial of, for forgery, ii. 22 Russel, references to, i. 110, 138 Russian ambassador, arrest of the, the cause of the passing of the statute, 7 Anne c. 12, i. 194 n. Ryan, Sir E., reference to a charge to the grand jury of Calcutta by, ii. 32 n.
;
333
Shah Alam, the Emperor, grants

the
Company the Diwani of reference to the Bengal, i. 40 n. fourth year of his reign, 114 w. and to himself, ii. 2, 285 n.
; ;
Shaik
Ear
Mahomed,
i.
129
similarity of his evidence in the trial of Nuncomar to that of
Joydeb Chowbee, 130-132, 133 n. his evidence, and mode of giving it, 155
;
S.
Saboot Pottack,
148
i.
118 and
n., 119,
Saheb Roy,
232
201
n.
128, 151 St. Helena, Francis's arrival at,

i.
Shakspeare, Mr., claim of Scroop Chund against, ii. 153 his rage his John Doe, 160 against testimony to Impey's knowledge of Persian and Hindustani, 265 transmits the Shelburne, Lord, r:;solution of recall to Impey, ii. 6, 233
;
;
ii.
Salkey, explanation of the term,

n.
ii.
Sheridan, his reception by his friends after his speech on the Begum reference to his charge, ii. 90
;
examination of Impsy regarding

the
Sandwich, Lord, reference to, as the patron of Lemaistre, i. 37

Saticrday
notice of
ii.
Lucknow
;
affidavits,
258,
263 267
and 'to his heavy wit about

in
Revieio,
reference
to
Impey
n.
the
Begum
charge,
Macaulay and his works by the author which appeared in,

271 n. Sauterim Sing,
i.
229
Sayer, his opinion as to the power to dissolve of Hastings the Council, i. 1Q n. Schitab Roy, Deputy Nabob of Behar, i. 11 references to, 47, 48 Scilaubut, the vakeel of Bollakey notice of, 118 Doss, i. 113 references to, 119, 120, 127, 129,
;
Shore, Mr., his minute explaining his reasons for refusing the charge ofthe Adalat, ii. 156 his description of the position of the judge of an adalat, 155, 157 Shore, the Hon. F., notice oP, and of his work entitled "Notes on Indian Affairs," ii. 1939z. extract from, on the old system of taking evidence by native clerks, 193,
; ;
131
n.,
132
71.,
148,
153,
164,
194 194
ns.
is
misled
by
Mill,
n.
165, 187 "Seat," explanation of the term,

i.
Siyyar-ul-Mutaqhcrin, (the
93 n.
to,
i.
Mohammedan history of the fall of the Mogul Empire), its character of

Nuncomar, i. 42 and?!. account and of the author, 261
;
Sedanund, reference
59
Seely, Mr., i. 138 Select Committee of the
of,
House of Commons, Fifth Appendix to the
Third Report of, reference to, ii. 127 ra. Scroop Chund, the case of his habeas corpus, ii. 153-155
Sezawal, or receiver, reference
ii.
extract from, regarding the character, crimes, trial, and execution of Nuncomar, 261-266 ; reference
to, 267 n., ii. 287 w. motion in Smith, General, his Parliament for the recall of Impey,
ii.
to,
160
ii.
Smoult and
164
Ryan's
Shabaz Bey Khan,
Orders, reference to,
ii.
Rules and 32 n.
334
INDEX.
this,
State Trials, reference to the trial of Nuncomar in, i. 5 ; of the
228
Wheler and Francis

;
object, 228
negro Somersett, 36 n. references to, 79 71., 81-83 Tis., 85, 86, 88, 94 m., 108, 109 m., 182, 89,
;
objections, 228, Francis's, 229,
ii.
186, 194, 196, 197, 199, 202-207, 61 ?i.
Master, reference to a report of, ii. 28 n. Stokes, Mr. Whitely, his opinion as to when the criminal law of England was first introduced into India, ii. 30 and n. ; the Code of
Stephen,
salarv to be attached to the office, 230 ; letter of Impey to his brother, announcing his appointment to
recommends the amount of
grounds of Wheler'.'^ 229 and of 230 Hastings

; ;
the
office,
230,
231
and
to
232
till
Dunning and Lord Thurlow, 231. Impey declines to accept

;
Criminal Procedure for India reenacted with additional provisions, by, 193 ?i. Subadar of Bengal, nature of the office of, i. 40 n.
the salary attached to the office the pleasure of the Lord Chancellor is known, 232 the East India Company consult their counsel as to the legality of the
;
S udder Diwani Adalat, or Civil Court of Appeal, Impey's appoint-
ment
to the judgeship of, assorted to have been intended as a bribe, ii. 5 a parliamentary committee
;
report against his acceptance of it forms one of the charges it, 6

;
232 appointment, Dunning, Wallace, and Mansfield do not deem it illegal, 232 Rous is of a contrary opinion, 233 Mansfield retracts his former opinion, and agrees with Rous, 233 the Court of Directors vote Impey's removal, 233 the House of Com; ; ; ; ;
mons address the Crown

removal,
for his
against him, 7, 124 history of the case, 221-255 the Patna Cause exposes the discreditable
; ;
233
Lord Shelbmrne
state of the Provincial Councils,
221
the
Supreme
Council
;
writes requesting him to return to England to answer the charge in the address, 233 Impey whites to the Council his
;
resolve to reform them, 222 they divide their business into two parts revenue business and judicial or civil business, 222 six courts are established for the disposal of civil business, 222 a superintendent appointed to each, under the title of Diwani Adalat, 222 appeals to lie to the Governor-General and Council in the Court of Sudder Diwani Adalat, 222 Impey's account of these Courts, and of the judges appointed to them, 222-224 remarks on this account, 224 minute of Hastings regarding the new courts and the difficulties connected with their working, 225-228 he proposes to make Impey judge of the Sudder Diwani Adalat, or Court of Appeal, 226 his reasons for this, 226-228 ; Sir Eyre Coote agrees to
acceptance Hastings's reply to Impey, and personal tribute to him," 234 summary of the facts of the case as against Impey, 235 the true view of this transaction, 236 how the quan-el between the Council and the Court was affected by the appointment of Impey, 236 three main heads of difference between the Council and the Court, 236 (1) the claim of the Court to exercise jurisdiction over the whole native population, 236 (2) and over the English and native officers of the "Company in the collection of the emploj'ed and their right revenue, 236 (3) to try actions against the judicial officers of the Company, 236 the first closed by armed force, 238 the second left untouched, 238 the third removed by the
; ; ; ; ; ;
;
of
defending the office, 234
INDEX.
appointment of Impe.y to the judgeship of the Sudder Diwani what Impey laid Adalat, 238 himself open to by accepting the remarks regardofBce, 238, 239
;
335
regarding his appointment to the judgeship of the Sudder

to,
ing the salary of the office, and Impey's general pecuniary con239-241 remarks on dition, Impey's appointment and the objection m-ged against it, 241-245
; ;
Diwani Adalat, 231 Tilghman, Mr., counsel for plaintiff in the Patna Cause, ii. 173 Tippoo Sahib, i. 42
Tolfrey, Mr., under-sheriff of Calcutta, reference to the evidence his account of his of, i. 94 n. his evireport of the trial, 105 dence as to the drawing of Nun; ;
legislative work done by Impey during his tenure of office, 245247 examination of Macaulay's ac;
count of the quarrels between the Court and the Council, 247-255 Sumbonat Roy, i. 236 Surajah Dowlah, references to, i. 23, 38, 134, 135, ii. 30
Suttee, first
made penal by Lord
ii. 71 Sutton, Sir Richard, his defence of Impey against the attack of Sir Gilbert Elliot, i. 171, 172 ; offers for inspection the original notes of the summing up, 172
William Bentinck,
comar's indictment, 108, 109 m. reference to, 161 n. Touchet, Mr., a member of the jury that tried Nuncomar, ii. 55 afterwards leader of the agitation against the Supreme Court, 55 Touchet's Petition, account of, ii. 199-208 cause of, 199 when sent to England, 199 Travels in Etirofc, Asia, &c., connection of Francis with the authorship of, ii. 96, 97 and n. Trinity College, Cambridge, references to, i. 32, 33
; ;
Syud Gholam Hussein Khan,
au-
thor of the Siyyar-iol-Mutaqheriii, account of, and of his work, i. 261
Trotter, Mr., Hastings's latest biographer, references to, i. 24 n.
V.
Tage Roy,
Tankwall,
of,
i.
i.
128, 151, 157
ii.
280
Vansittart, Mr., reference to, i. 76 and to his having received a

;
n.
bribe,
Tel-el-Kebir, reference to the battle
12
Mr.,
reference
of,
ii.
84 binds himself with Hastings and Barwell to prose;
cute
to
i.
Nuncomar and Fowke,

references
to,
ii.
88,
Thynne,
the
89
282,
283
assassination
61
to,
et seq.
Thurlow, Lord, reference
17
Vakeel to
i.
recommends Impey for the chiefjusticeship of the Supreme Court

of Calcutta, 33 Impey's regard for him, and his neglect of Imletter from Impey to, pey, 33 on the conduct of his colleagues,
;
references to
Mobarick ul Dowlah, Roy Radachurn as,

references
to,
s.
i.
195
et seq.
Verlst, 110,
Mr.,
ii.
64,
re-
287
53,
6,
Lemaistre and Hyde, 36, 37 his account of the result of the charges brought against Hastings, one of the counsel for 64, 65 the Company in the impeachment of Hastings, 65 n. is of opinion that Hastings had power to dissolve the Council, 70 n. has a share in settling the letter from Impey Cliarter, 146
; ; ; ;
c. 100, ference to, ii. 57 n. 32 and 33 Vic. c. 62,
24 and 25 Vic.
s.
refer-
ence
to,
ii.
145
ii.
n.
"Vultures of Bengal," reference to

the phrase,
188
W.
Wakley,
tion
of,
ii.
reference to the accusaby a member of Parlia-
ment,
ioS
336
INDEX.
Williams, Captain, ii. 269 n. Williams, Dr., i. 126, 165 ns. Wilson, Mr., reference to his notice on the trial of Nimcomar, i. 6 his explanations of various Indian
Wallace, his opinion as to tlie power of Hastings to dissolve the Council, i. 70 n.; and as to the
legality of Impey's appointment to the judgeship of the Sudder
Diwani Adalat, ii. 232 Walsingham, Lord (Sir
W.
de
Grey), reference to, i. 17 Washington, his letter to Rochambeau regarding the execution of
Major Andre, ii. 76 his animus Watson, Colonel, against the Court ii. 207
words, 113, 160, 161, 166-168, 275, 276, 280-282 ns. Wright, Mr., i. 64 Wraxall's account of one of Burke's speeches in the discussions on the and of Regulating Act, i. 14 n. the character of Hastings in his description private life, 27
;
Wat
Tyler,
Macaulay's
inapplicability of, rhetorical reference
to, ii. 248, 252 Wazi, and Waziat, ii. 180 n. Wedderburn, one of the counsel for
of Governor Johnstone, to whom Impey addressed an important his account of the letter, 255 n. debate upon the motion to impeach Impey, ii. 86, 87
;
in the impeachhas of Hastings, i. 65 ti. a share in settling the Charter,
the
Company
ment
146
Y.
i. 66 Yeandle, the gaoler of Nuncomar, his report regarding him, i. 98, 103 n. Yetmaundars, ii. 160 n. Young, Mr., ii. 180, 181
Wellesley collection at the India Office, reference to, ii. 9, 22 ns.
Yatibar Ali Khan,
Westminster
educated
at,
School,
and
i.
first
Hastings meets Im;
23 Impey a pey (1742-49), scholar at (1739-51), 32 Weymouth, Lord, receives a despatch from the Directors of the East India Company stating the their grievances against
Yule,
Colonel,
his explanation of
i.
an East Indian date,
56
n.
Supreme Court,
letters to,
ii.
i.
253
Impey's
Z.
205, 214, 217-220 Wheatley, Mr., his description of
Zemindars, the Supreme Court's

ii.
Governor Johnstone, i. 255 n. Wheler, his objections to Impey's appointment to the judgeship of the Sudder Diwani Adalat, ii. 228 Whig theory as to motive in relation to the law of libel, remarks on the, ii. 57 n. Wilberforce, William, his remark
regarding Hastings, i. 2 Willes, Mr. Justice, reference to the late, ii. 36 n. 5 and 6 Will. IV. c. 62, reference to, as to affidavits, ii. 266
claim to jurisdiction over them, 212-214, 216, 217 and n.
Mill's misrepresentations of Impey's letters regarding the, 217 n. Zenana, violation of the, of the Ranee of Burdwan, reference to, ii. 150 n. ; and of an act of dis-
respect to the Rajah of Oossiju211 reference to, 252 examination of Macaulay's charge against the Supreme Court of having ordered the violation of
rah's,
;
;
the, 251, 252
Zerd,
i.
80
n.
LONDON
RICHARD CLAY AND SONS, PRINTERS.
^
I
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CO
W CO
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SIE ELIJAH IMPEY

SIE ELIJAH IMPEY

JAMES FITZJAMES STEPHEN,

High Court of Justice

Queen's Bench JDivision

Right of Translation and Reproduction

The Suddek Diwani Adalat

SIE ELIJAH IMPEY

THE IMPEACHMENT OF IMPEY.

detail every incident

connected with Nuncomar's charges against Hastings, the

when they happened.

be necessary to describe the manner in which the charges came to be made.

Supreme Court on the

I have given a full account

THE IMPEACHMENT OF IMPEY.

how Impey came

In order, however, to be impeached, it is

its principal incidents. principal parties in Bengal between

1774 and 1784

and English courts

and Mobarruck ul Dowla

THE IMPEACHMENT OF IMPEY.

The view that the King

Bengal, and to subordinate the Supreme Court. In practice his

inference was different.

was that the Council

See, as a single strong illustration, Colonel Fullarton's speech of Impey.

"country Courts." At months in India.

this time Francis

THE IMPEACHMENT OF IMPEY.

have been rash and have been influenced

by that dangerous counterfeit of public

The quarrels between the Council and the Court began

Touchet, Gen. App. No.

THE IMPEACHMENT OF IMPEY.

even greater importance called the

same means within the town of Calcutta.

from the name of one of the agents for the

was one of the jury who

THE IMPEACHMENT OF IMPEY.

the leading member, Francis (who returned from India

continued to hold the

resignation was accepted.

Articles of charge were accordingly pre-

Pari. nist. xxii. 1411.

Life of Impey, p. 270. p^rl. Hist. xxvi. 1835.

THE IMPEACHMENT OF IMPEY.

extension of the jurisdiction of the

by Impey in connection with Hastings's proceedings at

the most important of to be heard upon that first.

Nuncomar was regarded as so them all that Impey begged

and he was heard upon

His petition was granted, Bar of the House on the

stantially, therefore, the

Pari. Hist, xxvii. 292, 416, and 427.

THE IMPEACHMENT OF IMPEY.

discussion will be,