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M E M O IRS
OF
SIR ELIJAH IMPEY, KNT.,
( ) /3) - 5 tº º
FIRST CHIEF JUSTICE OF THE SUPREME COURT OF JUDICATURE,
AT FORT WILLIAM, BENGAL;
WITH
ANECDOTES OF WARREN HASTINGS, SIR PHILIP FRANCIS,
NATHANIEL BRASSEY HALHED, ESQ.,
AND OTHER CONTEMPORARIES;
C O M P I L E D F R O M A U T H E N T I C D O C U M E N T S,
IN
REFUTATION OF THE CALUMNIES
OF THE
RIGHT HON. THOMAS BABINGTON MACAULAY:
BY HIS SON,
ELIJAH BARWELL IMPEY, ESQ., M.A.,
FACULTY STUDENT OF CHRIST CHURCH, OXFORD.
L O N D O N :
SIMPKIN, MARSHALL, AND CO., STATIONERS’ COURT,
D. BATT EN, C L A P H A M :
*===s*
1846.
© <!-- LO
VÝ №， Nº, Nº8
{\ ST H+ + +
IN T R () D U CTION.
THE fortune and after-fame of public men, often depend rather
upon the spirit of the times in which they live, and the state
of political parties, to whose influence they are exposed,
than upon their own intrinsic merits or defects. This is an
axiom, approaching indeed to a truism, applicable to all times
and countries, but more especially to our own; where, for so
many generations, government has avowedly been carried on
upon the principle of balancing party against party; and where,
until quite recently, no public man seems to have thought
that we could be governed in any other manner.
It was the lot of my father to enter the service of his
country, at a period when party heat and violence had at-
tained to their greatest height; and it was his misfortune
to excite the personal enmity of a man, who became, in a
manner, the oracle and prompter of a faction, the most in-
temperate, and, at the same time, the most able, persevering,
and influential, that ever sate upon the Opposition benches:
I allude to Sir Philip Francis. This is not the place to descant
upon the character of that gentlemen; it will be fully de-
veloped hereafter. But I think it highly important, thus early
in this work, to premise, in a summary way, what manner
of man he was, who originated these proceedings. I shall as-
sume, then, without stopping to prove, the following facts:—
Sir Philip Francis was the author of many anonymous libels;
a 2
iy I NTRO DUCTION.
y
principally, the “Letters of Junius; ” a pamphlet entitled
“Extract of an Original Letter relative to the Administration
of Justice by Sir Elijah Impey, dated 1780; ” a book, in two
octavo volumes, called “Macintosh’s Travels in Europe,
Asia, &c.,” published two years after; and a pamphlet
entitled “The Answer of Philip Francis, Esq., to the Charges
exhibited against him, General Clavering, and Colonel Monson,
by Sir Elijah Impey, Knight, when at the Bar of the House
of Commons, &c.”
His identity with Junius, I maintain to be established on the
united testimony of many able writers.” I will even venture,
in addition, to submit my own, valeat quantum valere potest.
I know, and can swear to Sir Philip's handwriting, as compared
with the fac-similes preserved in Woodfall's last edition. The
three other publications above-mamed, have been brought home
to him by Sir Elijah. I cannot affirm that my father ever
declared any positive opinion on the authorship of Junius's
Letters; but his exposure of the other three above-named is
upon record. Now Sir Philip was in the habit of denying that
he was the author of any one of these libels; but if he was
convicted of the last three, it approaches to something like
presumptive evidence of his being equally guilty of the first.
However, I will not argue hypothetically on facts assumed to
be already proved; I would rather hazard the chance of con-
tradiction, when I assert, that in habitually disclaiming the
authorship of all or any one of these publications, Sir Philip
Francis stands convicted, at the very least, of having been an
habitual — dissembler.
Lord Brougham, in his “Historical Sketches,” grants that
* Mere trifles sometimes tend to corroborate more weighty proofs.
There was an old monkish writer, mentioned in the Biographical Dic-
tionary, Franciscus Junius by name. It appears to me not altogether
unlikely that this circumstance may have suggested to Francis, who was
a great reader, the name of Junius, in conjunction with his own : but the
question, in my mind, has been completely set at rest, a good many years
ago, by Mr. Taylor, in his “Junius Identified.”
i NTROT) UC'I' [ON, v
“Francis's nature was exceedingly penurious;” but, drawing
a mice distinction between penuriousness and avarice, he has
nevertheless asserted, that he “never stooped one hair's
breadth to undue gains;” that he “had been an Indian
Satrap in the most corrupt of times, and retired from the
barbaric land washed by Ormus and Ind, the land of pearls
and gold, with hands so clean, and a fortune so moderate,
that, in the fiercest storms of faction, no man ever for an
instant dreamt of questioning the absolute purity of his ad-
ministration.” To these remarks I oppose the testimony
of men, who, at an early period of his career, knew Francis
better than his Lordship, happily for himself, can ever have
done. It was notorious among many of his trustworthy con-
temporaries, that he returned from India enormously rich,
having gone out positively poor. This I have heard accounted
for, by an illicit participation with his brother-in-law, Macrabie,
in salt and opium contracts. It was in allusion to this, that
Major Scott, in 1787, said openly in the House of Com-
mons—“Before I join in applauding the honourable gen-
tleman's integrity, I require it to be proved by this test:
let him state, that he left England in debt, that he was six
years in India, that his expenses at home and abroad were
so much, and his fortune barely the difference between the
amount of his expenses and the amount of his salary. Until
he shall submit to this test, as Lord Macartnay did, I shall
pay no attention to the animated panegyrics of his friends.”
To this Francis made no reply, nor did he ever show the
least disposition to acquiesce in such a criterion. If this
proves no more, it must be admitted, at least, to disprove the
assertion, that “no man ever dreamt of questioning,” &c. Nor
was Major Scott the only member of the House who publicly
questioned the purity of Francis's administration. That the
noble writer never dreamed of the absolute falsehood, sor-
* See Lord Brougham's Historical Sketches, Vol. II, pp. 96-7.
vi INTRODUCTION.
didness, and vindictive spirit, of Sir Philip Francis, may be
accounted for, by the well-known elevation and generosity of
his Lordship’s own character.
I will not now pursue this topic; enough is here stated, by
way of preface, to point out how little Sir Philip Francis was
to be relied on for the groundwork he supplied, and to what
extent the leven of his evil passions may be presumed to have
worked upon the enthusiasm of better men.
It was that truly formidable party, which, headed by Burke,
and followed by Fox, Windham, Sheridan, and others of like
ability, laboured for well migh fifteen years to ruin the
illustrious Hastings; and which, with Sir Gilbert Elliot for
their mouthpiece, determined, from the beginning, to couple
the judicial conduct of the Chief Justice with the political
administration of the Governor General,—a combination which
never existed in the sense alleged, and which it is my object,
unequivocally to disprove.
It was this party, which, under the dictation of such a
prompter as Sir Philip Francis, and such a leader as Mr.
Burke, claimed an exclusive knowledge of Indian affairs.
Having succeeded in establishing this preposterous claim,
they proceeded to electrify, dazzle, and mislead the nation,
by a series of such brilliant harangues, as were never before or
after surpassed in Parliament, and by a controul or monopoly
of the press, such as is now difficult to be conceived.
In our great popular representative assembly, the efforts
of declamatory genius have never failed to produce deep and
lasting impressions; and so much collective genius, and so
much genuine elocution, have never, perhaps, been brought
to bear upon one unassisted man, as were levelled at my
father, in the House of Commons. In society, few or none
took the trouble of investigating facts, or of comparing
Parliamentary reports and debates, with examinations
before select or general Committees. Few pretended to
understand, and fewer still to unravel, the intricacies of the
INTRODUCTION. vii
Regulating Act, to reconcile the discrepancies of the Charter,
or to define, precisely, how both were meant to carry into
effect the law of England, statute and common, over the
provinces of Bengal, Bahar, and Orissa; but all admired the
orators who declaimed on these intricate questions,—all
were prepared to take upon trust the infallibility of their
leaders. Such a statement was to be implicitly believed, be-
cause it was suggested by Francis, and confirmed on the
authority of Burke; such a denunciation fixed itself upon the
memory, because it had been uttered by the glowing elo-
quence of Fox; and such a charge, however outrageous
or absurd, could not be forgotten, because it had been pointed
by the epigrammatic wit of Sheridan. Against such fearful
odds,-so brilliant an association,--what success could have
been expected from a sober, dry, and somewhat tedious
defence 7 The assailants, moreover, were always on the alert,
in motion and in speech; they perpetually filled the public
ear and eye ; while the accused stood upon the defensive,
but once for all: and that, before an assembly shamefully
prejudiced against him.
Sir Elijah Impey, standing at the bar of the House, alone
with his innocence, and unsupported by any party, did, indeed,
refute, and triumphantly crush, the only charge which the
House ever entered into; and, this being done, he printed
and published his “Speech,” verified by an appendix of
documents and vouchers, so full, so thoroughly authenticated,
and so convincing, that one would imagine no rational man
could read them, without concurring in the vote of acquittal
which the Commons had pronounced; or without feeling that
my father's impeachment and ruin had been attempted upon
no higher or purer motives, than those of personal malignity,
and party rancour.
But the printed defence found but a very limited number of
readers, compared with those who had read the spirit-stirring
speeches of Burke, Fox, Elliot, and Sheridan; my father's
viii INTRODUCTION.
numerous documents were, of necessity, almost as dry and un-
attractive, as other mere legal papers are to all but lawyers;
his modest octavo volume was soon withdrawn from circula-
tion, and lost sight of ; not, as I believe, without some active
underhand agency on the part of Sir Philip Francis, whose
web of artifice, as it gradually expands, will prove him
by no means incapable of every secret and surreptitious
practice.
How otherwise can it be accounted for, that almost every
trace of Sir Elijah Impey's justification should have disappeared
where so much defamatory matter affecting his character has
been carefully accumulated and preserved 7 I will not affirm
what I cannot prove ; but what is not improbable I have a
right to conjecture; namely, that Francis bought up the copies
of my father’s defence. Another work equally scarce, I believe
him to have suppressed. It is entitled, “A Refutation of
a Pamphlet entitled the answer of Philip Francis, Esq., &c.
London : Stockdale, 1788.” Of both these books the reader
will find an epitome in its proper place in this volume.
Sir Elijah's enemies, in the course of the proceedings against
Mr. Hastings, audaciously, though not without correction,
revived and repeated the charge which he had triumphantly
refuted, and of which he had been declared innocent. I
refer to the vote of censure of the House of Commons
upon Mr. Burke on the 27th of April, 1788, on the peti-
tion of Sir Elijah Impey. The vote of censure was moved
by the Marquess of Graham, and carried by a majority of
more than two to one, the numbers being 135 to 66. Never-
theless the revived calumny came recommended with the same
passion, wit, and rhetoric, which had originally given it so much
poignancy. Thus, it fixed itself still more firmly upon the
popular mind; and, while impartial lawyers who had examined
the matter, laughed scornfully at the monstrous fiction, and
while easy people of no party slighted it as some gross, ridicu-
lous exaggeration, it became an indestructible article of belief
1NTRO DiJCTION. ix
among the whole body of the blind followers of the oppo-
sitionists. } :
Dr. Samuel Johnson, who was at this time but recently
dead, had said, thirty years before:–
“Of all kinds of credulity, the most obstinate and wonderful is that of
political zealots; of men, who, being numbered, they know not how, or
why, in any of the parties that divide a state, resign the use of their own
eyes and ears, and resolve to believe nothing that does not favour those
whom they profess to follow.”
By this “most obstinate and wonderful” credulity, by the
untiring malice of faction, and, by the carelessness, indolence,
presumption, and averseness to research of public writers—
journalists, annalists, reviewers and essayists—the exploded
calumny of sixty years ago has been kept alive, and outrages
and indignities have, at intervals of time, continued to be
heaped upon my father's memory.
It is as the reviver, and re-propagator, of slander and
falsehood, that I address myself to the Right Honourable
Thomas Babington Macaulay. This popular writer has
originated no charge, has made no new construction, has in-
vented nothing beyond a few rhetorical embellishments; he
found the structure built, roofed in, and finished, but some-
thing the worse for time and wear. All that he has done, or
attempted to do, has been to prop the dilapitated edifice,
re-chisel some of its broken scrolls and cornices, re-paint, re-
plaster, and make it more conspicuous to the public eye.
As far back as the year 1818, the late Mr. James Mill
published a history of British India, which contains every
charge that was brought, or attempted to be brought, against
Sir Elijah Impey, and every evil and malignant construction,
that was ever put upon his conduct as Chief Justice in India.
Although rather more research might have been expected from
a writer holding a foremost situation in the East India House
and having access to all its stores of documents, Mr. Mill
* Idler. No. 10.
X i NTRODUCTION.
collected nearly all the materials for his history of the ad-
ministration of Warren Hastings, out of inflamed parliamentary
reports, drawn up by Committees most hostile to the Governor
General, and out of the pages of the Annual Register, which
was the organ of a party, and which, for many years
had been entirely under the controul of Mr. Burke, -the
accuser, and irreconcilable foe of Mr. Hastings. Like him,
this soi-disant historian of British India confounds two cases
which have nothing necessarily in common with each other;
like him, he never discriminates between the motives of the
Chief Justice and the acts of the Governor General, takes
no pains to ascertain what might have been said on the other
side of the question, and seems never so much as to have
known of my father's printed defence: and yet it had been as
openly made as the accusation itself; it had quashed the pro-
ceedings in Parliament, and had thus become an historical fact.
In the face of all this, Mr. Mill puts the accused out of court,
and out of all consideration; takes charges for proofs, and
speculative opinions for the decisions of law; and, finally,
imposes his own unauthenticated conclusions upon the public,
as indisputable history.
I am told that Mr. Mill disclaimed any adherence to party;
that he affected independence; or that, if he consented to wear
the Whig favours, it was only with the admixture of some
Radical ribbons of his own: that he aspired to be chief and
sole ruler of a distinct party, who were variously called, “Phi-
losophical Radicals,” “Utilitarians,” “Millites,” &c.; and,
that he had, at one time, a little knot of young disciples, who
fancied that the whole world, would, inevitably, be altered,
and reformed, and turned into a sort of Utopia, by his political
philosophy. But with Mr. Mill's theory I have little to do. I
only affirm that he selected his materials essentially from a
party, however he may have pretended to repudiate it; that he
was negligent of documentary evidence, though it lay at his
hand in Leadenhall Street; that he had neither the research mor
-. º introduction. xi
the impartiality which becomes an historian; and, that it was
his humour to fly out against all constituted authorities, and,
more especially, against all Governors General and Chief
Justices of India. I have been assured, however, by a gen-
tleman, likely to know the fact, and incapable of propagating
a falsehood, that Mr. Mill, some years before his death, con-
fessed, in private society, that he had committed many errors
in his book; and that, although he had done nothing in malice,
he had given not a few persons just reason to complain of him.
Yet—whether from want of candour, or from want of what he
might consider a proper opportunity, I will not decide—Mr.
Mill never put forth any public retractation, but left his history
behind him with all its misrepresentation and imperfections
unrevised. That such is the fact, there is far better authority
than I pretend to, or than can be safely assumed from what
the author is reported to have said of himself.
In the preface to the fourth edition of Mill's history, pub-
lished by Mr. Wilson, in 1840, the learned member of the
Asiatic Society, and Boden Professor of Sanscrit in the
University of Oxford, with his usual moderation and good-
nature, thus qualifies his opinion of Mr. Mill's claim to the
“merits of patient and laborious investigation.”
“Besides the defects occasioned by incompetent materials, the “His-
tory of British India' presents inaccuracies, both of faci and opinion,
which have arisen from the author's imperfect knowledge of the country,
and unacquaintance with any of the languages spoken in it. He has taken
great pains to prove that these deficiencies are of no consideration, and
that his never having been in India, and his possessing but a slight and
elementary acquaintance with any of the languages of the East, are to be
regarded rather as qualifications than disqualifications, for the task which
he had undertaken. His arguments are ingenious: they will carry con-
viction but to a few.”
But, besides this, Mr. Mill had none of the graces and
vivacities which constitute what is called a popular writer.
His book, therefore, though often named, was seldom
read; and all the slanders therein contained, lay, for a
xii INTRODUCTION.
great length of time, sealed up and forgotten: the rather,
perhaps, as nobody, except Mr. Macaulay, thought it worth
while to notice so dull a writer; and when, upon another
occasion, he was noticed by Mr. Macaulay, it was, at first, in
such abusive terms, as to induce a quarrel between the reviewer
and the reviewed. Afterwards, it seems, they were reconciled;
for what reason does not appear; but, in the preface to his
“Critical and Historical Essays contributed to the Edinburgh
Review,” the right honourable re-publisher has these words:–
“Serious as are the faults of the ‘Essay on Government,’ a critic, while
noticing those faults, should have abstained from using contemptuous
language respecting the historian of British India. It ought to be known,
that Mr. Mill had the generosity, not only to forgive, but to forget the
unbecoming acrimony with which he had been assailed, and was, when
his valuable life closed, on terms of cordial friendship with his assailant.”
This quarrel, reminds me of what I have read or heard
quoted somewhere:--‘‘Ctesias mendaeissimus Herodotum
mendaciorem arguit; ” while the reconciliation brings to my
mind the Rovers in the “Antijacobin: ”—“A sudden thought
strikes me; let us swear an eternal friendship!” How far this
friendship was cemented by their enmity to other characters,
may be gathered from the sequel; but when, from whatever
motive, Mr. Macaulay condescended to rouse the drowsy
calumnies of Mr. Mill; when one of the most popular writers
of the day—writing for that great party organ, the Edinburgh
Review—exerted all his ingenuity to revive them; it was then
that falsehood and defamation took a new and wider range;
and I began to feel that something must be done to rescue
from dishonour the good name I inherit.
But the production, on its first appearance, was, like all
review articles, anonymous. The well-known peculiarities,
indeed, the smartness and antithesis, of Mr. Macaulay’s
style—which, by the way, has in no degree improved since
the writer was a student at Trinity College, Cambridge—left
little doubt as to the authorship; and, in every society I
INTRODUCTION. xiii
frequented, the article was unhesitatingly attributed to that
Right Honourable gentleman. But still it was “a deed with-
out a name; ” and there are mocking birds in the field of
literature, as well as in the forests of America. Both before
and since, I have seen the right honourable reviewer's
5
mannerism so closely imitated, that it has been difficult to
tell which was the copy and which the original—which the
voice and which the echo. I could not commit myself upon
an uncertainty, or combat with a phantom. From that moment,
however, I began to collect and arrange materials, for a vindi-
cation of Sir Elijah Impey, who had thus been evoked from the
sanctuary of the tomb, to be re-produced to the world, as a
monster of meanness and iniquity.
At that time, besides myself, there were four children of
Sir Elijah yet surviving. We were all most tenderly attached
to his memory, and deeply wounded by its desecration.
Though not altogether unknown in the world, it is just
possible that the reviewer knew nothing of our existence; but
it is highly probable, that he would not have deranged the
symmetry of a single sentence, once constructed, to save
five affectionate hearts from anguish. I abstain, as much as
possible, from mixing up the sanctity of domestic sorrow with
resentment of a public wrong; but, if there be a slanderer
base enough to find pleasure and triumph in having tortured
the feelings of delicate and sensitive women, aged and honour-
able men, he may take my assurance for the fact, that these
calumnies have not only embittered the remnants of life, but
mingled with the sharpness of death. But I scorn to rest
my claim to popular sympathy upon any but popular grounds.
It is only upon those grounds that I pause to exemplify, in
one instance, the baneful effects—the wide-spreading pesti-
lence, of a libellous pen. Other examples are not wanting,
where provocations of this nature have resulted, both to
individuals, and to communities, in the most disastrous
consequences—in brutal assaults, and sanguinary challenges;
xiv 1NTRoDUCTION,
in frenzy, and assassination! And therefore it is, that
defamatory libels, in which I include libels on the dead,
have been always considered, by the soundest lawyers, and
still stand upon our statute-books, as directly tending to an
overt act of the breach of the peace.* However, Time has a
lenient wing, and mitigates the resentments as it blanches
the hairs of old age. If I have thus slightly glanced at
worldly consequences and responsibilities, let it not be
thought that I am unaware how much more consistent it is,
with my time of life, and present disposition, to admonish
and remind the slanderer and false witness, of higher and
holier obligations, than were ever suggested by human
vengeance, or sanctified by merely human law.t
About the time when the Edinburgh Review article was
first making a moise in the world, there were two other writers
who were treating largely of Indian affairs; who were publish-
ing their works periodically, or in parts; and who were both
approaching the difficult subject of Mr. Hastings's administra-
tion. One of these gentlemen was Mr. Charles Mac Farlane,
who was then writing the civil and military narrative in the
“Pictorial History of England,” published by Messrs. Charles
Knight & Co.; the other was Mr. Edward Thornton, who was
producing his “History of the British Empire in India,” pub-
lished by Messrs. Allen & Co., booksellers to the Honourable
East India Company.
Fully aware of the strenuous efforts which had been made to
falsify that portion of our history, knowing that I was the sole
possessor of many papers which could alone restore it to the
* See “Blackstone's Commentaries,” vols. 3 & 4; and 32 George III.
cap. 60. For a remarkable conversation between Dr. Johnson and
Solicitor General Murray—afterwards Lord Henderland,-concerning
libels on the dead, see “Boswell's Life of Johnson,” and the note
on the passage where he quotes the case of “Rex versus Topham,”
tried in the King's Bench, Trinity Term, 1790; when defendant was found
guilty of a libel, published in The World newspaper, against Lord Cowper,
deceased.
+ Deut. xix. 18–21.
INTRODUCTION. XV
light of truth, and feeling that I should render an acceptable
service to those two authors, if they aimed at impartiality, by
affording them the means of attaining to it, I determined to
put myself in communication with them, and to offer them
both the free use of my materials. In so doing, I resolved to
ask from them no other return or condition, than that they
would carefully peruse my books and papers, and then judge
for themselves.
In the first instance, because, of the two, he was more nearly
approaching to the critical point in his marrative, and for no
other reason, I addressed myself to Mr. Mac Farlane. Per-
sonally, I knew nothing of this gentleman, nor he of me; but
I had read parts of his history, and from them I judged that
he had no party bias, and was sincere in his pursuit of truth.
I was not disappointed. Mr. Mac Farlane gladly accepted my
offer, acknowledging that he found himself involved in doubts
and difficulties; that he had sought in vain for a copy of Sir
Elijah Impey’s defence; and that he was wholly unacquainted
with the contents of that volume. I placed it in his hands,
together with ten folio volumes of manuscript letters, and all
such other documents and vouchers as I had, at that time,
procured from public offices. The result was, that he not
only lost no time in correcting many old errors, and inserting
many facts new to him into the history upon which he was
then employed, but that he afterwards made free use of my
materials in the compilation of another work, entitled, “Our
Indian Empire,” in two volumes, bearing his name, and pub-
lished likewise by Messrs. Charles Knight & Co., in 1844.
It is due from me to Mr. Mac Farlane, most unequivocally
to state, that he performed this task under no compact or
agreement whatever; but at a very considerable expense,
and inconvenience to himself; that he scrupulously examined
the whole mass of evidence which I put into his hands; and
that, through his generous medium, I have thus been enabled
to influence the cause of historical truth in two well-written, and
xvi INTRODUCTION.
widely-circulated publications. It is equally due to myself to
make it clearly understood, that I left the historian entirely
to the guidance of his own judgment and good feeling in this
matter; I could never, for a moment, have thought of insulting
him, or debasing myself, by an attempt at any unworthy com-
promise of his opinion. I would as soon have crouched to
Mr. Macaulay himself for a favourable article on this present
volume, as have attempted to tamper with the author of
the “Pictorial History,” and of “Our Indian Empire.”
His own unbiassed conclusion was, that my father had
been an honourable and cruelly misused man. This opinion
he expressed with honest warmth and earnestness; and
there are various points in both his narratives, which he
has cleared up, and substantiated, by reference to unquestion-
able documents; to the advantage of Sir Elijah's fame, and to
the conviction of Mr. Mill and his followers, either of wilful
misrepresentation, gross ignorance, or want of common re-
search. In a general history of the eventful reign of George
III., and in a general account of “Our Indian Empire,” it is
obvious that to have inserted more details must have been
considered disproportionate and out of place; but, for what the
author of these volumes has dome, towards the elucidation of
truth, it behoves not only me and my relatives, but every
honest reader of his country’s annals, to be grateful.
Mr. Mac Farlane and I are no longer strangers to each
other; and I trust that an acquaintance which began under
circumstances painful to me, but assuredly not dishonourable
to either of us, will terminate in a lasting friendship.
My intercourse with Mr. Edward Thornton was not quite
so satisfactory. I waited, in person, upon that gentleman, at
his office in the East India House, and offered him the use of
the same documents which I had submitted to Mr. MacFarlane.
Politely, but coldly enough, he declined accepting my offer.
I spoke of the difficulty of finding any copy of Sir Elijah
Impey's defence, and of the importance and conclusive nature
INTRODUCTION. . xvii
of the arguments and vouchers contained in that volume.
But he wanted not the loan of my book; and I left him upon
receiving his assurance that “full justice would be done, by
him, to Sir Elijah.” Within a short space of time his part
also came out. The justice which Mr. Thornton had done
my father, had been to take upon trust the charges of his
persecutors, to repeat the slanders of Mr. Mill, and to modulate
his abuse in the manner of Mr. Macaulay. With documents
at his elbow, or to be seen by merely moving a few steps, from
his own to the adjoining offices, where I myself found them,-
with proofs, the most clear and accessible, of my father's most
honourable and disinterested conduct, Mr. Thornton, without
bestowing a thought upon such evidence, repeated the dis-
honouring construction which Mr. Mill had put upon that
conduct, and even exceeded Mr. Macaulay in his invectives
against it. I allude here principally to the charge of the Chief
Justice having accepted the presidency of the Sudder Dewannee
Adaulut; but, in other very serious matters, Mr. Thornton had
been equally indolent, careless, ignorant, and intemperate. His
great rhetorical Paragon had infected him,-had transported
him out of the mediocrity of his own style, and it is quite
clear, that, for information on a most important part of our
Indian history, involving the character of the dead and the
feelings of the living, he had never looked beyond that
chronicle and repertory of party, the old Annual Register, the
ponderous tomes of Mr. Mill, and the frivolous article in
the Edinburgh Review. In the heat of the moment that
was done which I now regret. My eldest brother, Admiral
John Impey, and myself, presented an ineffectual memorial *
to the Honourable East India Company. We ought rather
to have despised so impotent an attack. The dullness of
Mr. Thornton’s book was quite sufficient to limit its circu-
lation. It is already consigned to merited oblivion. I have
not met the person that has read it.
* This memorial will be found in the Appendix to this volume.
Ö
xviii INTRODUCTION.
The Edinburgh Review article first appeared in 1841. In
1843, Mr. Macaulay published, with his name on the title-
pages, three volumes, entitled, “Critical and Historical Essays
contributed to the Edinburgh Review.” They were nothing
but reprints of the several original publications in that
periodical work; and, as a matter of course, the libel in
question was among them.
In that interval of time, Mr. Mac Farlame, with the aid
of my papers, had published in the History of England his ac-
count of my father's administration of justice in India. That
account had been very generally read, and had made many
converts to the truth. That the right honourable gentleman
had read it, appeared from his own acknowledgment in a
foot-note appended to his essay. He had therefore learned,
if he knew it not before, that numerous documents on the
subject were extant ; that my father had triumphantly
defended himself against the only charge that was ever
pressed against him; that there existed, in print, the copy of
that defence, of which he might possibly have had no previous
knowledge, but of which well nigh one-third had now been
re-published; and that there were still living, children of
Sir Elijah Impey, whose hearts had been harrowed by the
original article. Finally, I will add, that, by this time, and
through this means (if not long before, through Mr. Gleig's
book), Mr. Macaulay must have learned, that of those de-
scendants of Sir Elijah Impey, there was one, at least, not
likely to let an avowed libel against his father, under the
author's own name, pass unnoticed. Therefore it became
the Right Honourable gentleman, before he determined to
convert his anonymous review into an essay acknowledged
by himself, carefully and soberly to have re-considered the
whole matter; it became him, for the sake of his reputation
as a writer, and from dread of further exposure of his inac-
curacies, thenceforward to have commenced that historical
research which he had hitherto neglected; it became him, as
INTRODUCTION. xix
a gentleman, and from a regard to filial feeling, to have ex-
punged that which had been proved to be false, and to have
apologised for that which had justly given offence. With
these considerations, it may surely then be asked, did not
Mr. Macaulay's re-publication appear in a form and temper
widely differing from those of the original review article? If
not retracted, surely it must have been softened, moderated,
or explained 7 No such thing. The review article of 1841,
and the essay of 1843, were substantially the same ! No
research had been instituted, no documents consulted, no
violent denunciation altered or qualified, no error acknow-
ledged or amended, eacept one, and that bearing on the most
trifling part of the whole subject. This sole confession, that
he had in one instance been caught tripping, was thrust into
a foot-note, in small type, and was accompanied by an arrogant
sneer. The injustice and impertinence of that insult, I have
taken good care to expose, in its proper place. Meantime, in
justice to Mr. MacFarlane, I may here remark, that it is matter
of common courtesy among literary men, that, when a work is
referred to, the title of the book, or the name of the author,
or both, should be given; but the critical and historical es-
sayist, named neither the author nor his work; still less did
he deign to treat with any deference the source from which
the information had been derived: though he seems to refer
it to one of Sir Elijah Impey’s family. But this omission,
I take it, did not proceed so much from discourtesy as from
calculation. Mr. Macaulay was not willing that his foot-note
should serve as an advertisement, either to my papers, or to
Mr. Mac Farlane’s book; because, in the former, the reader
was sure to find an index to those documents, which he had
either ignorantly or dishonestly suppressed; and, in the latter,
a mortifying detection, of not simply one trifling error, but of
many gross, infamous, and abominable mis-statements. It
was for that reason, that, ea abundanti cautelá, Mr. Macaulay
smuggled through a foot-note his nameless allusion to Mr.
Ö 2
XX INTRODUCTION.
Mac Farlane, and took care not to betray even so much as a
knowledge of my existence.
The Right Honourable Thomas Babington Macaulay,
having thus re-published his original libel, without any quali-
fication or apology, though ample time and opportunity had
been allowed for both, I was no longer in any doubt as to the
course I ought to pursue. I resolved to refute him publicly,
and upon public grounds. He had committed two great
national outrages: the falsification of history for party pur-
poses; and the invasion, beyond all allowable liberty of
language, of a character belonging to the State. I felt, there-
fore, that he had given me a twofold advantage over him ; I
felt myself justified in pursuing these advantages; and, with
the aid of incontrovertible facts, and authenticated documents,
opposed to mere assertion, with the utter absence of all proof,
I did not despair of bringing the truth to light; neither
would I shrink from competition with my brilliant adversary,
so long as I was conscious of a better cause, and of a
mind superior, at least, to his habitual prejudice, and in-
finitely better informed, by means of patient investiga-
tion, on a subject, which, it is plain, he had undertaken
without the remotest pretension to research. Feeling, more-
over, that, sooner or later, I might be called upon to repel this
unwarrantable, unprovoked, and worse than personal attack,
I girded myself for the task.
Nor had I been altogether idle in the interval: I had
arranged some of my materials, cautiously examining papers
already in my possession, and searching for more; I had
solicited information in many quarters, especially from gen-
tlemen whose lives had been spent in India, or in the service
of the Company; and, to the best of my ability, I had
studied the whole subject anew; so as to make myself, more
than ever, thoroughly master of it. At first, I had thought
of confining myself to a pamphlet; but I soon found that
nothing like justice to my father's memory, could be dome
INTRODUCTION, xxi
within such marrow limits. My materials accumulated,—
and the final result has been the present volume.
In this pursuit I have been aided by many of my friends,
both private and official, in a manner too kind and effectual
not to call forth my most grateful acknowledgments. There
is a reverence due to exalted names, which should protect
them from being unnecessarily cited upon occasions of inade-
quate importance; yet I persuade myself that, in a case involving
the character of a dignified servant of the Crown, though long
deceased, there will be no impropriety in availing myself of
the sanction of such mames, alike connected with the public
service, and therefore alike liable to fall upon “evil days and
evil tongues.” Having first sought, in vain, among the more
intimate of my private acquaintance, or those upon whom I
thought myself best entitled to call for documents indispen-
sible to my work, I was induced to apply for them in higher
quarters. On application to Sir Robert Peel, I was instantly
supplied with a circular letter of introduction to the Govern-
ment offices, dated May 8, 1842, and addressed to the Keeper
of the State Papers, the Clerk of the Privy Council, and the
President of the Board of Controul. The terms in which this
circular is expressed, conveyed a recommendation so personally
flattering to myself, that though I have not the vanity to print
it, yet have I pride and gratitude sufficient to preserve it.
among my most precious testimonials. The exact success
with which I presented myself at all these offices, it is not
necessary to state. Enough that I left none of them un-
searched, and that my reception at each deserves my warmest
thanks.
At first, and of my own accord, I had solicited the inspection
of papers at the India House; and, with the accustomed liber-
ality of the Honourable the East India Company, I was
favoured with immediate permission to consult them. I have
already signified my regret at having, on a later occasion, pre-
sented an ineffectual memorial to the Court of Directors. But
xxii INTRODUCTION.
I would have it clearly understood, that I do not by any
means consider their unfavourable answer to that memorial as
detracting from the previous obligation which I owe them.
With much thankfulness I acknowledge their ready assent to
my former petition; and that I am more particularly obliged
to their respectable officials, Mr. Peacock, Mr. Lawford, and
Mr. Cottle, for all the accommodation and facility of reference
obtained at their several departments, in Leadenhall Street and
Drapers' Hall. To their learned librarian, Professor Wilson, I
am equally thankful for the favour of having been admitted to
the advantage of his conversation, during my attendance at
the India House in July, 1842. It may be asked, then, why
the memorial alluded to should be published in my Appendix 7
Simply, and for no other reason, than because it is my purpose
to give publicity to every proof of the general merits of
this case; and at all times, and in all places, to cause a
register to be made of my protest against these execrable
calumnies. I was besides warranted, by no light authority,
in pursuing this course.
Before I presumed to memorialise the Court of Directors, I
submitted to my friend, the late Lord Fitzgerald, then Pre-
sident of the India Board, the propriety of addressing the
Chair. His lordship, with an affability and good nature which
ever marked his conduct towards me, attentively read my me-
morial; and though he professed not to give an opinion, either
on its merits, or upon its probable result, he did, nevertheless,
most expressly approve the motive, and encourage the design,
with which I presented it; adding, with some compliments on
the “piety of my task,” a strong recommendation that I
should put it upon every possible public record ; and that, as
both the memorial and the answer to it, must, in the course
of business, come before him, he should have been sorry if I
had petitioned the Court of Directors, without having first
communicated with him. In the end, his lordship desired
me to leave a written minute of my application at his office;
INTRODUCTION. xxiii
and directed, in my hearing, that it should be placed among
the documents at the India Board. Before I quit this portion
of my subject, let me take this opportunity of offering my
tribute of gratitude to the memory of that accomplished noble-
man, not without an expression of sorrow that I should have
obtruded upon his attention a matter which may have caused
some pain and trouble, at a moment not long preceding his
lamented death.
Let me, likewise, not omit to express my sense of obligation
for the civilities bestowed upon me by the under-secretary,
and junior officers of the Board; particularly to my young
friend Charles Phillimore, to whom I am indebted for having
called my attention to a very valuable document at the India
House. -
By the authority of the present eminently learned Master
of Trinity College, Cambridge, I am enabled to authenticate
my father's academical career in that University: and I feel
obliged to Dr. Whewell for his kind alacrity in replying to
my inquiries.
And, finally, I must not forget the obligations I am under
to my hereditary friends of the Sutton family, and to their
venerable medium of communication with me—the Rev. I. T.
Becher, Prebendary of York—for the very acceptable anec-
dotes imparted to me, at the eve of this publication.
That the book should not have appeared until three years
after the publication of Mr. Macaulay’s Essay, has been owing
to various circumstances and considerations, in few of which the
general reader will take much interest. I may say, however,
that I was far more anxious for correctness than for speed;
that some of my researches in public offices consumed much
time; that I was frequently delayed by waiting for informa-
tion from distant friends and correspondents; and not seldom
retarded by an indifferent state of health. No time, at least,
has been wasted in elaborating fine sentences, or seeking after
far-fetched illustrations and fanciful effects. Nevertheless
xxiv. INTRODUCTION.
I never contemplated, nor do I contemplate now, that the
interest of my book should be merely of a momentary and
personal nature. My intention, on the contrary, was, and
is, that it should have an interest for all times, and for
all men capable of feeling the value of historical truth ;
that it should prove that repetition of falsehood, however
long and obstimately continued, can never accumulate into
fact; that, in history and biography, research—industrious,
scrupulous research—is of far more account than exqui-
site writing ; that the characters of public men are not to
be everlastingly sacrificed to the purposes of faction ; and
that, eventually, detection, exposure, shame, will await those
who deliberately print and publish, in a daring contempt of
facts long since passed into legitimate history, and established
upon parliamentary proof. And is not this a lesson needed,
from time to time, in this writing and reviewing age 7 And
is not the memory of many a just man, as dear to his des-
cendants as my father's is to me, equally exposed to the risk
of atrocious defamation ? Is not every man who makes
himself at all known in the world, who excites the enmity
of a party, or the jealousy of a powerful, fashionable writer,
liable alike to be assailed in his life-time, and, when he
can mo longer defend himself, to be calumniated in his
grave 7
If I have adequately performed my task, then have I done
a public as well as a private duty ; I have not only vindi-
cated Sir Elijah Impey individually, but I have thrown a
shield between a host of other innocent men, and the attacks
of future slanderers. At the very least, I have raised a beacon
for the warning of future historians; and it would be no less
than to meditate a libel upon this high-minded nation if I
could bring myself to believe that Englishmen are indifferent
to the sacred principle of historic truth ; or that they
will long mistake a tinsel embroidery of rhetoric on a coarse
ground-work of faction and falsehood for the annals of this
INTRODUCTION. XXV
glorious land. Mr. Macaulay, I am told, is now writing a full
history, wherein is to be included the substance of nearly all
the articles he has contributed to the Edinburgh Review, from
the commencement of the Revolution, to the end of the reign
of George III. What sacrifices of public reputation, what
immolation of private character may not be expected in such
a work from such a pen But is there a reader in his senses,
who—after being made acquainted with his mode of writing,
and the specimens hereinafter to be exhibited and exposed—
will attach any value to Mr. Macaulay as an historian ' Is
there one of our truth-seeking, candid, and ingenuous country-
men that will ever think of looking for impartiality in his
book? or that will attach the slightest importance either to
his condemnation or applause 7
But if anonymous reviews, avowedly written for party pur-
poses, and republished verbatim with their authors’ names, are
not to be regarded as impartial history; so neither are pas-
sionate invectives, coarse epithets, and cruel personalities to
be substituted for sober reasoning on the conduct of public
men ; and were it not that our evil passions are often, but
too succesfully stimulated by these means, it would be almost
incredible that so many experienced writers, and declaimers,
should trust to such precarious and unworthy methods of per-
suasion. Too much intemperance, whether real or simulated
for the sake of effect, has already been lavished on this
subject. It has been my endeavour to divest myself of
every similar passion; but if, in the course of this inves-
tigation, I may have been betrayed into any unbecoming heat,
some deduction will surely be made, on account of the more
than individual provocation I have received. Tametsi causa
postulat, si non planè cogit, in iram non soleo descendere.
E. B. I.
Clapham Common,
September, 1846.
*...* In the course of my work, I have repeatedly an-
nounced my intention of depositing the Family MSS. and
other papers (upon which this volume is mainly founded),
in the Library of the British Museum.
I have now only to announce that those books and papers
have been so deposited, and that they are now accessible to
every man of letters, that may wish to study an important
chapter in Indian history, or to test the correctness of my
numerous quotations and references.
C 0 NTE N T S.
CHAPTER I.
PAGE
Early Life of Sir Elijah Impey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
CHAPTER II.
Spirit of the time—State of Parties—Regulating Act, &c... . . . . . . . . 20
CHAPTER III.
Arrival in India—The Chief Justice; his Arrangements, Studies, Cor-
respondence—Dissensions in Council—Conduct of the Governor
General, of the Majority, of the Judges, &c. . . . . . . . . . . . . . . . . . . 56
CHAPTER IV.
Arrest and Trial of Nuncomar, and interference of the Majority—
Nuncomar's Petition; Consultations in Council upon it—Evidence
of Matthew Yeandle, Mr. Tolfrey, and Dr. Murchison . . . . . . . . . . 86
CHAPTER V.
Secret Proceedings of the Majority in Council—The Judges send a
Copy of Nuncomar's Trial to England by Alexander Elliot—
Hastings's Scheme of Administration—Sir Elijah Impey's Letters
on the corruption and violence of the Provincial Courts, &c. . . . . 113
CHAPTER WI.
Continued Opposition of the Majority in Council—Death of Monson
—Mr. Wheler appointed Governor General—Dispute between
Hastings and Clavering—Death of Clavering—Proceedings of the
Court opposed by the Council—Trial of Francis . . . . . . . . . . . . . . 152
XXX CONTENTS.
CHAPTER VII.
P
Opposition of the Council to the Supreme Court—Committal of Mr.
Naylor for Contempt of Court—Projects of the Council for
Administering Justice, &c. . . . . . . . . . . . . . . . . . . . . . . . . . .
CHAPTER VIII.
Coalition of Francis and Hastings—The Quarrel and Duel—Exten-
sion of Powers of the Sudder Dewannee Adaulut—Sir Elijah
Impey accepts the Presidency—Francis returns to England, &c,..
CHAPTER IX.
Sir William Jones succeeds Justice Lemaistre—Insurrection at
Benares—Defeat of Cheyte Sing—Hastings's Treaty with Asoff-ul-
Dowla—Sir Elijah Impey's Journey to Benares and Lucknow—
He receives the Affidavits relating to the Insurrection, &c. . . . . . .
CHAPTER X.
Francis arrives in England—Obtains a Seat in Parliament—Proceeds
to misrepresent Sir Elijah Impey—Legal Opinion on Sir Elijah's
Acceptance of the Sudder Dewannee Adaulut—Address to procure
his Recall, &c.. . . . . . . . . . . . . . . . . .
CHAPTER XI.
Sir Elijah resigns the Presidency of the Sudder Dewannee Adaulut—
Receives the Letter of Recall—Prepares with his Family to return
to England—Testimonials of Regard for his Public and Private
Character at Calcutta . . . . . . . . . . . . . . . . . . . . . .
CHAPTER XII.
Sir Elijah's Homeward Voyage—His arrival in England—Resignation
of Mr. Hastings—Preparations for their Impeachment—Sir Gilbert
Elliot's Articles of Charge . . . . . . . . . . . . . . . . . . . . . . . . . . .
CHAPTER XIII.
A GE
, 177
209
230
. 249
. . . 264
Sir Elijah Impey's Triumphant Defence on the Nuncomar Charge .. 290
CONTENTS. xxxi
CHAPTER XIV.
PAGE
Reply of Sir Elijah Impey to a Pamphlet by Mr. Francis. . . . . . . . . . 323
CHAPTER XV.
The Patna Cause—Appeal thereon, and Dismissal of the Appeal by
His Majesty in Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
CHAPTER XVI.
Sir Elijah Impey's Life after the Persecution—Private Anecdotes
and Correspondence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
CHAPTER XVII.
Sir Elijah at Paris—Is detained a Prisoner of War—Death of Sir
Robert Chambers—Anecdotes and Correspondence . . . . . . . . . . . . .385
CHAPTER XVIII.
The English sent to Verdun, &c.—Sir Elijah allowed to remain at
Paris–Correspondence continued—He returns home—Anecdotes
—Death • * * * * * * * * * * * * * * * * * * * * * * s e o 'º e º e º 'º e º 'º e º 'º e º 'º e º 'º º º 399
CONTENTS OF APPENDIX.
1. Extracts from a Copy of the proceedings of a general quarter
sessions for the town of Calcutta, Feb. 27, 1765 . . . . . . . . . . . . 415
2. Fac-simile Copy of the Translation of the Petition of Nuncomar 417
3. Extracts from Copies of the Addresses presented to Sir Elijah
Impey, and to the Supreme Court of Judicature . . . . . . . . . . . . 419
4. Answers to the Addresses of the Grand Jury, Free Merchants and
Mariners of the town of Calcutta, and Armenians, delivered by
Sir Elijah Impey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
5. The Memorial of Rear Admiral John Impey, and of Elijah Barwell
Impey, Esquire, to the Court of Directors of the East India
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
ERRATA.
Page 4, line 3, in note, for “twelve" read nine; line 4, for “ 1804."
read Feb. 4, 1805.
13, line 15, in note, for “Colyten "read Colyton.
24, line 16, for “ 1824' read 1818.
50, line 8, for “Syrian " read Persian ; line 3, in note, for “as
well by” read as well of
69, line 34, for “the were " read they were.
87, line 32, for “berefaced” read barefaced.
91, line 20, for “admissable ’ read admissible; line 34, for “and
Hyde, Lemaistre” read Hyde, and Lemaistre.
92, line 3, for “is his ’’ read in his.
139, line 20, at commencement, omit “some.”
233, line 18, for “country’’ read Company.
251, line 32, for “Barber’ read Baber.
257, lines 1 & 10, for “cap. 64 ° read cap. 63.
O HAPTE R. I.
EARLY LIFE OF SIR ELIJAH IMPEY.
Of the immediate parentage and early history of Sir
Elijah Impey, there is little of any public interest to be
recorded, beyond the fact that he was born and bred a
gentleman and a scholar. Yet some short biographical
notice may be expected to precede a work like the
present. Moreover, as Sir Elijah's reputation has been
assailed from its very earliest years, it is fit that, from
its very earliest years it should likewise be vindicated;
in order that the general reader of this day, who is not
likely to devote time, and still less the labour of research,
to such a subject, may be as carefully disabused, as he
has been ignorantly and uncharitably, if not maliciously
misinformed; and that it may plainly appear from begin-
ning to end, whether Mr. Macaulay is justified in repre-
senting the character of an able, honourable, and amiable
man, as he has presumed to do. So unambitious was
my father of any posthumous fame to be achieved by
memoirs or biographical sketches, and so averse to the
publication of correspondence unconnected with public
affairs, that the materials which have come down to me,
whether of his early private life, or professional efforts, are
very scanty; but such as they are, I possess them, while
Mr. Macaulay, his pretended critic and historian, has
not the slightest authority or shadow of proof for his
B
2 T.A.R.LY LIFE OF
daring, off-hand, unwarrantable assertions. Some most
important materials, indeed, there were, accessible to this
ingenious writer, in printed books; but neither he nor
the author” whom he has followed for his facts, have ever
looked at these memorials. If it can be proved to demon-
stration, that Mr. Macaulay, in his very first mention of
Sir Elijah Impey, couples his name with what is slander-
ous, and has assumed a character for him in his boy-
hood which is utterly false, there will be little credit left
to cement the structure which he raises on such a
foundation.
“Let him in nought be trusted,
For speaking false in that.”
Assuming my own name and person, in the execution
of a filial duty, I therefore commence with the com-
mencement of my father's career, and shall attempt to
bring it to a close with brevity and truth.
In the male line, Sir Elijah sprang from that middle
class of society, which, in this commercial land, has sup-
plied so many able lawyers and enlightened statesmen.
He was the third and youngest son of Elijah Impey, Esq.,
of Butterwick House, Hammersmith, by his second wife,
Martha Fraser. He was born at Hammersmith, on the
13th of June, 1732, and was baptised in St.Paul's Chapel,
in the parish of Fulham, on the 24th of June, as appears
by the parish register. His father, like many of his pre-
decessors, was a merchant, engaged in various traffic, but
chiefly connected with the East India and South Seatrade.
He died in 1750, and was buried in the family vault at
Hammersmith, as recorded on a monumenterected against
the inner wall, on the north-west side of the church. From
this commercial connection, my father's mind was, at an
early period, familiarised with Eastern affairs. His mother
was nearly related to the noble Scottish family of Lovat,
being the daughter of James Fraser, LL.D. Dr. Fraser
was author of a Life of Nadir Shah, held an official
situation in Chelsea Hospital, and was uncle to
Amelia, Baroness in her own right, and married,
in the strange manner recorded in history, to Simon,
the twelfth Lord Lovat, beheaded for the part he had
* Mr. Mill.
† See Lyson's Environs of London.
SIR ELIJA H IMPEY. 3
taken in the Rebellion of 1745. My paternal grand-
father left behind him both a good name, and a con-
siderable estate, in and about Fulham, Uxbridge, and
the parish of St. Mary-le-bone in London. Of Sir Elijah's
two brothers, Michael the eldest, succeeded to his father's
business, and the greater part of his estate at Hammer-
Smith, where he resided till his death in 1794. The
second, James, was educated at Westminster, and
Christ Church, Oxford; being at the former a King's
Scholar, and at the latter a Faculty Student. At both
places he was highly distinguished, as well by his ami-
able disposition, as by his scholastic acquirements.
Among his intimate friends at Oxford, who afterwards
obtained eminence in the world, were Dr. William
Markham, afterwards Archbishop of York, and that
distinguished lawyer, who eventually became Chief
Baron Skinner. Having taken the degree of M.D.,
James Impey began to practise as a physician, residing
chiefly at Richmond. Possessing an independence, and
with it the desire of travelling so common to scholars,
he indulged it in the capacity above-mentioned; visiting
many foreign climes in pursuit of science. He died at
Naples, in 1756. Having no issue, he left a considerable
property to his youngest and favourite brother, the
subject of this Memoir. It is to be regretted, that the
reputation he acquired for learning, is but scantily at-
tested by some elegant Latin verses printed in an early
edition of the “CARMINA QUADRAGESIMALIA,” by a
published treatise on Comparative Anatomy, and by a
few other manuscripts which do not appear to have
been printed. His common-place books, however, which
are in my possession, denote an inquisitive, industrious,
and highly cultivated mind, combined with a turn for
the humorous, which was an equally remarkable feature
in the character of my father at every period of his life.
To this brother, who was about eleven years his senior,
Sir Elijah was chiefly indebted for the superintendence
of that education, which, aided by his own industry and
abilities, procured for him, without either high connection
or patronage, the distinguished post he held in his pro-
fession. From this brother he likewise imbibed that
love of classical literature, which, like his wit and
pleasantry, never forsook him either in prosperity or
B 2
4 EARLY LIFE OF
tribulation; in the bustle and incessant toil of middle
life, or in the retirement of old age. Of his brother
James he always spoke with tenderness and gratitude;
but, like most other eminent men, he always declared
that he owed most of all to the early tuition of his
mother, and to the tender care she took to instil into his
bosom early principles of religion and morality. He
never wrote or spoke of her but as his “pious mother.”
In his seventh year, he was placed at the lowest form
of Westminster School, then under the able direction of
T}r. Nicoll. He proceeded to the end of his academical
course, the favourite of his master, and the friend of
many of his school-mates, who were afterwards men of
note, and of honour in the world. I have sufficient
evidence before me to show that, though quick and
industrious at his studies, the future Chief Justice of
India, was a joyous, light-hearted, and spirited
“Westminster boy,” much addicted to sportive exercise,
and not less to sportive verse. From this last practice
he scarcely weaned himself until his last hour; although
he never took up poetry otherwise than as an exercise,
or pastime, nor ever attached the slightest value to the
things he struck off (at times in no unhappy vein of
poetry) for the amusement of his children, or of some
old and familiar friend. Some droll doggrel which
left an echo behind it in Westminster School, and which
will still be familiar to many an old King's Scholar, I
believe to have been his. The joke is nothing without
the story. The celebrated Dr. Arne, at that time residing
near Westminster Abbey, where he had probably some
professional engagement, requested some of the boys to
write him a copy of verses, that he might set them to
* I cannot better exemplify the force and duration of this sentiment,
than by extracting a paragraph from a letter addressed to me by my father,
dated Ryde, in the Isle of Wight, June 18, 1800, about twelve years be-
fore his decease. It relates to his parting with my lamented brother
Hastings Impey, who died in India, 1804. “At present,” he writes, “the
wind is in the west, and will not permit him to sail. . . .I may confess my
weakness to you; I am fond enough to wish it may remain in that quarter:
for every day and hour that my dear boy remains with me, seem to be
added to my life. My mother, when approaching the age of ‘threescore
years and ten,' used to tell me that every morning when she saw daylight,
she piously returned thanks to God for having permitted her to see it.
I feel sentiments of a similar kind for every day I behold my Hastings.”
SIR ELIJAH IMPEY. 5
music. The Doctor, if we may trust to his portraits,
was a grave and solemn person, as professors are apt
to be; but there ran a story, that his wife was accus-
tomed to bathe in the river Thames, with her servant-
maid; be that as it may, the verses which they pre-
sented to the composer, began,
“Dr. Arme, Dr. Arne, it gives us consarm,”
and ended in cautioning Mrs. Arne against the great
risk she ran of catching cold.*
Some of my father's exercises in Latin verse, are
exceedingly creditable to a boy of his age; having more
meaning and point than are usually found in such
juvenilia. The following epigram was written when he
was about sixteen or seventeen years old, under the
following thesis—given, as is usual, a little before Easter,
preparatory to the recitation of similar compositions,
which form part of the examination of candidates by
the electors deputed from either University:-
“DECUs ET TUTAMEN.”
“Haec coma quam spectas duplicem mihi servit in usum,
Tutamen capiti nocte, dieque decus.”f
The double office of the wig, will remind the reader
of the idea of Goldsmith in his description of the dis-
tressed poet:
“A night-cap crowned his head instead of bay,+
A cap by might, a stocking all the day.”
Yet I hardly think it possible that my father could
have taken the thought from Goldsmith. The first
allusion to the “Distressed Poet,” occurs in a letter to
* I have been reminded by a contemporary, that the song ended thus :
“Dr. Arne, Dr. Arne, it becomes your consarn,
These matters may chance to make you sick ;
You ask for a song, and we mean nothing wrong,
But beg you'll set this to your music.”
+ So general was the fashion of wearing wigs in those days, that even
Westminster schoolboys wore them; and it may well be supposed, that
in their rough dormitory of St. Peter's College, they converted them
occasionally into nightcaps.
6 EARLY LIFE OF
the Rev. Henry Goldsmith, dated in February, 1759;
and the verses were not published until some years
later.* My father quitted Westminster School in
1751. His epigram must have been produced in 1748
or 1749. In Latin verse he was the pupil of Vincent
Bourne, then an usher at Westminster.
There appears to have been no sport or frolic in which
the future Judge did not take his full share: the reputa-
tion he enjoyed among his contemporaries, and which
had a little traditionary existence in the school many
years after he had quitted it, was that of being a right
merry and hearty companion. The most remarkable of
his school-fellows, as well as one of the most remarkable
of men, whether of his own day or of any other, was
Warren Hastings, who was very nearly of his own age,
being his junior by about one year. This trifling differ-
ence is, however, something in the boyish age, and it is
fair to presume that, from my father's seniority, from
his more muscular frame, from his being first at the
school, and from his having enjoyed advantages, as well
in education as in other particulars, which Hastings,
through his father's misfortunes or imprudence, had
been denied, his lively friend and playfellow figured,
for a time, as the protector and champion of the
future Governor General of India. As much as this,
indeed, appears to be signified in fragments of letters
and memoranda, written many years after both had
quitted school. But what is quite positive, is, that
Elijah Impey and Warren Hastings were bosom friends
as schoolfellows, and that the friendship thus com-
menced, faustis sub penetralibus, continued till old age
and death, being never for a moment interrupted,
except for a short interval at Calcutta, by the political
and professional differences which will be hereafter dis-
cussed.
The illustrious Hastings, as I, who have enjoyed so
much of his society and confidence, can well witness,
was a man of the most engaging manners, one that
could not be known without being beloved. I can well
fancy that this power of captivation was strong in him,
even as a boy; and that a person of my father's dis-
* See Mr. Prior's minute and interesting Life of Goldsmith.
SIR ELIJ AH IMPEY. 7
position and tastes, must have been strongly at-
tracted towards him; I can also conceive that my
father's penetration, of which he gave many striking
proofs in his maturer age,” may have enabled him,
even as a youth, to read the future high fortunes
of Warren Hastings; or, at the least, to conjecture that
a comrade so richly endowed with ingenuity, wit, in-
dustry, and energy, would not long be depressed by the
heavy burdens of poverty and dependence, or remain
hid in obscurity among common men; but what I can-
not conjecture, or find any authority or ground for be-
lieving, is, that my more fortunately circumstanced father,
with the character, disposition, and habits he possessed,
should ever have made himself “a serviceable tool,” +
or how “we may safely venture to guess that, when-
ever Hastings wished to play any trick more than
usually naughty, he hired Impey with a ball or a tart
to act as a fag in the worst part of the prank.”
The confession previously made by the writer of this
flippant and illiberal passage, that he knew little about
their schoolboy days, might have taught Mr. Macaulay
more caution. Happily there are those still living, who,
if not of their own knowledge, yet from authoritative
record as well as tradition, can testify of the early
friendship of Warren Hastings and my father, that it
was founded upon honourable and noble principles; and
of my father's character, that it was always frank and
manly, incapable of being bribed by great things or by
small, and abhorrent of trickery and meanness. Both
he and Hastings were favourite scholars of Dr. Nicoll.
Stimulated by the same generous emulation, they were
friendly rivals in every boyish exercise, whether of play
* A good many years after his own return from India, and when he was
well advanced in the vale of years, my father chancing to be upon some
business at the East India House, in Leadenhall Street, saw and conversed
with an engaging and energetic youth, who had just entered the Company's
service, and was making the necessary arrangements for his passage to
India. He saw little of him then, and never before or after that morning.
“That active and intelligent boy,” said he, “is sure to become a great
man in India.” The boy is now Lord Metcalfe.
f Mr. Macaulay, who puts what immediately follows as a guess, gives
this as a direct assertion, saying, “The Chief Justice was Sir Elijah
Impey. He was an old acquaintance of Hastings; and it is probable that
the Governor General, if he had searched through all the Inns of Court,
could not have found an equally seviceable tool.”
8 BARLY LIFE OF
or study. They swam in the Thames, and rowed upon
it with each other; they played at cricket, and capped
verses together. There might, doubtless, in some few
things, besides scholarship or school exercises, have
been a disparity in favour of Hastings; but there was
no dependence or base submission on either side. Few
minds could, in any pursuit, have kept pace with
Warren Hastings. My father appears to have been
once, at least, distanced by his competitor; for in 1747,
when they stood out for College, and were admitted as
King's Scholars, the name of Impey stood fourth upon
the list of which Hastings was the head : but they
were both monitors in the same election. This, in the
palmy days of Westminster School, was considered
no trifling proof of scholarship in either. It was
otherwise with my father; but Hastings's classical
studies terminated at Westminster; for his uncle died,
and the distant relation who took charge of his mainte-
nance and education, having it in his power to obtain an
East India writership, instead of leaving him to proceed
to the University, removed him to a commercial school,
to acquire the necessary arts of arithmetic, and book-
keeping. Besides Churchill, Colman the elder, Lloyd,
Cumberland, Cowper, whom Mr. Macaulay mentions
as contemporaries of Hastings, and consequently of
Impey, they had for their schoolfellows, Lords Stormont
and Shelburne, R. Sutton, afterwards Sir Richard,
Samuel Smith, afterwards Head Master and Prebend-
ary of Westminster, and the two Bagots, Richard and
Walter (Richard changed his name to Howard, and
Walter became the Incumbent of Blithfield and Leigh,
in Staffordshire, and afterwards Precentor of St. Asaph).
Of the latter it is recorded, by his immediate de-
scendants, who are among my most honoured friends,
that, late in life, being casually absent in London from
his benefice, he affectionately abstained from present-
ing himself at Hastings's trial, lest he should witness
the humiliation of his early friend; nor have I ever
heard that he expressed greater delight at the persecu-
tion of Sir Elijah Impey. Next to Hastings, many of
these distinguished men were my father's most intimate
friends; and here again, and in every case, their friend-
ship for him lasted through all the storms and maligni-
SIR ELIJAH IMPEY. 9
ties of life, and ended only in death. Would this have
been the case if Sir Elijah Impey had been, as a school-
boy, that which Mr. Macaulay represents him to have
been 2 Has this brilliant and unhesitating writer, who
has so neglected obvious sources of information, any un-
known, and hitherto undiscoverable source from whence
to produce facts subversive of this more than circum-
stantial evidence? He has none, and he cares for none.
His object is not to investigate facts, but to write a
stirring article. His constructive ingenuity is even
more conspicuous than his rhetorical power. He knows
the truth contained in the line of the most meditative
and philosophic of our modern poets,
“The child is father to the man.”
He knows that the monster Zeluco begins his career
of cruelty as a child, by twisting off the neck of a bird;
and, as he starts with the pre-determination of making
a judicial monster, a suborner, an ermined murtherer,
of Sir Elijah Impey, he begins by describing him as a
base bad boy at Westminster School. Before I take
leave of Westminster, let me be allowed to make one
more remark. Mr. Macaulay, in his most graceful
manner, speaks of a friendship which Warren Hastings
contracted with the poet Cowper; “a friendship,” he
says, “which neither the lapse of time, nor a wide dis-
similarity of opinion and pursuits could wholly dissolve;”
but he abstains from mentioning that Elijah Impey
was equally, or perhaps more, the friend of the poet.
This omission may be considered as a trifle; it is, how-
ever, a thing of some significance; inasmuch as the
whole prelude to Mr. Macaulay's laboured defamation
is purposely made up of a few preliminary trifles, that
they may with the greater plausibility be magnified
into matter of very serious importance, by way of in-
ference hereafter. The lamented Southey, in his life of
Cowper, thought it no derogation to the subject of his
biography, to include the name of Impey among the
early associates of the amiable poet at Westminster
School.
In January, 1750, Warren Hastings sailed for Calcutta.
On the 28th December, 1751, Elijah Impey was admit-
ted pensioner of Trinity College, Cambridge; having on
10 EARLY LIFE OF
the preceding 8th December, entered as law student at
Lincoln's Inn. His career was distinguished at the
University, as it had been at Westminster; each year
bringing with it some new academical honour. In 1752,
he gained a scholarship; for he left school without being
elected to Cambridge; and he therefore earned both that
and the fellowship afterwards, by his own merit as an
independent member of the University. In 1754, he
gained the college prize for a Latin declamation, of
which I possess a copy. In 1756, in the Cambridge
Calendar, under the head of Tripos, the second name on
the column is “* Elijah Impey (B.), Col. Trinit.” The
marks designate that he was Fellow of a College, and
had obtained the junior Chancellor's medal, instituted
in 1752, and for which none were qualified to contend,
who had not previously won a mathematical prize.
In other words, Impey was a junior Wrangler, and
Chancellor's Medalist. The large gold medal is among
the relics I preserve of my father. The Chancellor at
the time was the Duke of Newcastle. I possess also
some college exercises in Latin, which, if not otherwise
very remarkable, are stamped through and through with
a generous, frank, and manly feeling. On the 3rd of
October, 1757, he became junior Fellow of Trinity
College; and, on the 4th of July, 1759, he was senior
Fellow. The friendships he made during his residence
at Cambridge, were as lasting as the rest; and there
was this in my father's nature, whether their fortunes
proved brilliant in the world, or otherwise, he always
clung tenderly to the associates of his early days.
Dishonour and vice might efface this kindly feeling,
but neither misfortune nor mere imprudence could
destroy it. In the meantime (on the 23rd of Novem-
ber, 1756) he had been called to the bar. There he
soon became associated with all the most eminent
or rising characters in the profession at that day:
with Thurlow, Kenyon, Heath, Mansfield, Wallace,
and Dunning. With the last-named of these dis-
tinguished men he contracted a close friendship, attested
by a long and intimate correspondence, which lasted
f Sir James, afterwards Solicitor and Attorney General, and lastly,
Chief Justice of the Common Pleas.
SIR ELIJAH IMPEY. 11
throughout the whole of his arduous career in India, and
terminated only in the decease of his friend, in August,
1783, just nine months before his return to England. If
the faithful and highly-gifted Dunning had but lived a
few years longer, until the furor of impeachment set in,
Sir Elijah Impey would not have been left, as he in a
manner, was, “naked to his enemies.” Few men had
ever a larger share of religious resignation; yet was he
often heard to lament that Dunning did not survive to
welcome him back to his country, and to stand by him
in the perilous hour of persecution.
In 1766-7, he made an extensive tour on the continent.
His travelling companions were Alexander Popham” and
John Dunning. At Naples he visited, with the deepest
feeling of fraternal love, the grave of his brother James,
who had been the instructor and guide of his boyhood.
My father was not a correct artist, but I have now hang-
ing before me a little drawing he made of his brother's
last resting-place, which I value more as a proof of his
affectionate nature, than I could do were it a master-
piece by the ablest hand.
When at Rome, my father, Dunning, and Popham, sat
for their busks to Nollekens, who was then beginning his
career as a sculptor. This bust of my father, in his
thirty-fifth year, bears the same expression of frankness,
gentleness, and kind-heartedness, not without a mix-
ture of pleasantry, which exists in a portrait painted
many years later, and which characterised his living
countenance to the last.f.
In such mixed society as he found time to frequent,
his amiable disposition, and conversational talent,
* Alexander Popham was elected Fellow of All Souls, Oxford, in 1750,
and was afterwards made Master in Chancery. He was a near relation of
Major Popham who distinguished himself in Sir Eyre Coote's campaign,
against Hyder Ali, in 1780.
+ Whilst on the subject of pictures, it may not be amiss to notice, that
the frontispiece to this volume is engraved from an original, painted by
Kettle, in 1776, being a duplicate of one which now hangs in the Court
House, at Calcutta. There is another, in the attitude of speaking, in some
other public building. The former was presented to Sir R. Sutton, in
return for Sir Richard's likeness by Sir Joshua Reynolds, which my father
took to India, with two others, one of Lord Shelburne, by Gainsborough,
still in our family; the other, of Dunning, by Sir Joshua, and now in
the possession of Mr. Baring. The portraits of Sir R. Sutton, and Sir
Elijah Impey, were afterwards interchanged by their widows.
12 TeARLY LITRE OF
made him a great favourite. Dunning, it is well
known, was a rich humourist; and Sutton and his
friends were either witty themselves, or content to be
“ the cause of wit in others.” Not long ago, a lady” who
lived to a very advanced age, and who had a memory
very retentive of the circumstances of her youth, used
to relate, how, in large London parties, she and some
young friends of congenial taste, would quit the ball-
room, to gather round the card-table where Dunning,
Impey, Sutton, and Popham, were playing at whist, and
making puns faster than points in the game. “The table
of those facetious lawyers,” she said, “was the centre
of attraction to all who relished an intellectual treat.”
On the 18th of January, 1768, in the thirty-sixth
year of his age, my father was married to Mary, a
daughter of Sir John Reade, Baronet, of Shipton Court,
Oxfordshire. For some time after his marriage, he
resided in a very quiet manner, at a house in Essex
Street, Strand; living sparingly, and working very
hard, as became a barrister who had to make his way
without patronage or extraneous support. I have often
heard my dear mother say that this was by far the
happiest period of their lives. An increasing family
was a stimulus to exertion ; and his warm affections
rendered toil easy. In all the cares, crosses, and vexa-
tions, attendant on an always harassing profession, he
was never known to lose his sweetness and cheerful-
ness of temper. At the bar, and on the Western
Circuit, though he had to contend with many a for-
midable rival, he was considered, as a pleader, second
to none but Dunning. In those days, which are
made to appear more remote than they really are, by
the rapid improvement of material objects (though it
may be doubted whether there has yet been an equal
improvement in things more intellectual), when there
were no railways, and the posting roads were worse
than the poorest cross-country lane now is, it was the
custom of most barristers who went the circuit, to
ride from one assize town to another on horseback.
My father was fond of horsemanship, and had a fa-
vourite nag, which would come at his call, and follow
* The late Dowager Lady Sutton; the second wife and widow of
Sir Richard.
SIR ELIJ AH IMPEY. 13
him about like a dog. By going year after year to
the same places, this horse was as well known on the
circuit as his rider. Only a short time ago, some old
people in the west of England, remembered how lawyer
Impey's horse would follow him into the town, and even
walk after him into the inn where some of the great
lawyers would be sitting, with a solemnity ludicrously
contrasted with the freedom of so extraordinary an
intruder. If I mention these trifles, it is simply be-
cause they help to throw light upon the genial cha-
racter of my beloved parent. And, surely, when the
assailant of my father's fame preludes his atttack with
the romance of a fictitious “ball or tart,” I may be al-
lowed to speak of a real, not an imaginary creature,
whose generous nature could have been so tamed only
by patience and gentleness. But, to be more serious,
let me remind the right honourable gentleman, that
it is the “merciful man’’ who is proverbially “merciful
to his beast.”
Having distinguished himself in a difficult cause,”
business began to flow in apace; and of that more
profitable kind which is reserved only for the for-
tunate few. My father was a barrister of seventeen
years standing, and in good practice, when, in the
year 1773, he was thought worthy of filling the
new and important post of Chief Justice of Fort
William, Calcutta. His recommendation to this office
* The circumstances of the trial alluded to are now but faintly remem-
bered; thus far, however, I have been fortunate enough to ascertain.
The cause of action was an assault of a very aggravated nature, “Head
versus Mullins and others,” tried before Chief Justice Willes, at the
Exeter Assizes in 1769. My father, as counsel for plaintiff, was opposed
by no less an adversary than the great John Dunning. The defendants,
therefore, made sure of their acquittal; for Dunning, as usual, had in-
volved the cause with subtleties so ingenious, as nearly to have secured a
verdict for his clients; when one of his witnesses broke down under the
cross-examination, or examination, in chief by his opponent. The exact
point at issue I have been unable to ascertain; but the fact, with these
few particulars, of Mullins's sentence to fine and imprisonment, I ga-
thered by personal inquiry in August, 1844, from the late plaintiff's
daughter, Mrs. Mary Ann Head; at that time a very old inhabitant of
Seaton, near Colyten, which last place had been the scene of the assault.
Mrs. Head died only the year after my interview with her; but there are
those still living in and about that neighbourhood, who can testify not
only this event, but also my father's general reputation on the western
circuit.
14 IEA RI, Y LIFE OF
proceeded from the Lord Chancellor, Henry Bathurst
Baron Apsley, who, in the course of the next year,
succeeded his father in the title of Earl of Bathurst.
But my father, who had previously argued before
committees of both Houses of Parliament, had also
attracted the notice and esteem of Lord North, the
premier, and of Lord Shelburne, afterwards first Mar-
quess of Lansdowne, one of the two Secretaries of
State. His appointment was made out by Lord Shel–
burne, who had the department of the colonies, &c.;
and to that nobleman Sir Elijah Impey was accustomed
to look up as to a friend.
Seeing the career that lay open to him in England,
and dreading for him the effects of the burning and
enervating climate of Bengal (at that time a much
greater object of dread than it now is), many of his
friends either advised him not to accept the offer, or
thought that he acted unwisely in accepting it; but, on
the other hand, it was difficult to refuse what was so
honourably offered. His family was already numerous;
his private patrimony not large; his friend and school-
fellow, Hastings, was at the very head of affairs in India;
and his own mind, as I have already hinted, had been
turned at an early period towards the glowing East. He
therefore accepted that appointment, which has made his
name and character a part of the history of our Indian
Empire. But in taking this hazardous step, it must
ever be regretted that Sir Elijah seems not sufficiently
to have reflected upon the danger which, especially at
that time, attended a man who took upon himself such
a novel, difficult, and responsible situation, without the
support of any political party at home; for, at that
period, when Cabinet Ministers were so miserably di-
vided among themselves, it was hardly to be expected
that any minister or premier would stand forward
in fair defence of any servant of Government, even
though appointed by himself; nor could the first
Chief Justice of India have been at that time aware
of the violent factions about to break out in Calcutta, so
soon as the three newly-appointed members of council
who were to accompany him, should arrive with an ill-
defined authority which must necessarily conflict with
that of the new Governor General of India. True, in-
SIR ELIJA H IMPEY. 15
deed, it is, that much of this knowledge was not to
be acquired otherwise than by painful experience in
watching the operation of the Regulating Act in the
country to which it was applied. All preceding legis-
lation had been vague, unstable, and contradictory.
The recent enactment, which was to regulate every-
thing, in its very first application threw all things into
worse disorder than before: and even after three explana-
tory acts had been passed, during my father's residence
in India, to modify and alter what was otherwise un-
intelligible, the said amended Act remained a very de-
fective piece of legislation after all; an opprobrium to
Government, a puzzle to lawyers and statesmen both
at home and abroad; and, though an inexplicable
riddle to all men besides, yet a sure weapon in the
grasp of a tyrannical faction hereafter. Meanwhile it
was by turns a nullity, or a bewildering and cruel
embarassment to every responsible servant, whether of
the Supreme Court established by Government, or of
the East India Company, who acted under it in the
Indian presidencies. But the die was cast: my father
prepared for his voyage to India; all his fortunes were
embarked in that crazy ark, and all his prospects of pro-
fessional advancement in England wrecked and ruined
for ever. Years after his return from the East, as he
was passing one day through the Court of King's
Bench, Chief Justice Kenyon, who was then presiding,
said to him, “Ah, Impey ! had you stayed at home,
you might now have been seated here.” Such were
the convictions of all the friends who best knew him,
and who were most capable of estimating his personal
accomplishments and professional qualifications.
Now, confining myself to a view of the less remark-
able portion of his history up to this period, I think it
may “safely" be left to the decision of any honest and
unprejudiced man, whether there is anything in the early
life of Sir Elijah Impey to justify the insinuation of Mr.
Macaulay, that, from his youth upward, Sir Elijah was
a mean and vicious character. I trust I have, on the
contrary, shown that, as a boy, he was high-spirited,
* For this anecdote I am indebted to the late eminent barrister,
Mr. Adolphus, who heard this honourable testimony pronounced in open
court.
16 EARLY LIFE OF
amiable, and industrious; that, as a youth, he was an
accomplished scholar; that, as a man, he had earned
among his contemporaries the reputation of a learned,
able, and eloquent lawyer. May it not, then, be safely
assumed from all these combinations, that the new
Chief Justice entered upon his arduous duties in
India with a character for virtue and wisdom fairly en-
titled to the respect of all good men But without
this logical inference, I know and can prove, what is in
fact matter of notoriety to many who are yet living,
that he did enter upon office with the full enjoyment of
that respect which nothing he did in office ever made
him forfeit ; and that after his recall from Calcutta, and
after the defamatory processes which were carried to
such a length against him, he both retained the esteem
of all who had previously known him, and formed
many new friendships with others who were themselves
both good and able men, and somewhat better qualified
to judge of his judicial character and general conduct
than Mr. Macaulay, who never knew, nor could have
known him, being not much beyond the precincts
of the nursery when Sir Elijah died : not but that
something more might have been expected from a late
English barrister, who afterwards, for several years,
had held the appointment of Law Commissioner in
India But it is plain that the right honourable gen-
tleman has never taken the trouble to inform himself
of the facts connected with my father's legal adminis-
tration, nor even of the nature and bearings of the
statutes under which he acted ; all which he might
have done, while at Calcutta, from records preserved on
the very spot.
And here, although I anticipate what must be said
on a future occasion, I shall quote my father's own
words from the speech he delivered in his defence at
the bar of the House of Commons, on the 4th of
February, 1788; that defence which was utterly un-
known, or has been deliberately suppressed by his
calumniator.
“It is hardly conceivable,” said my father at the Com-
mons’ bar, “that any man whose constant habits of life have
been known to be such as mine have been—and there are not
wanting members in this house who know both how, and with
SIR ELIJ AH IMPEY. 17
whom, the earlier part of my life, down to the time figuitted
this country, had been spent, that I–a man I will assume to
say, who left this country with a character unimpeachable,
who maintained that character till May, 1775, should, in the
course of the next month, have been so totally lost to every
sense of shame, every principle of justice, every duty of office,
every feeling of humanity, to have been at once so deeply
immersed and hardened in iniquity, as to be able deliberately
to plan, and steadily to perpetrate, an outrage with all the
circumstances with which it is charged and aggravated.
Nemo repente fuit turpissimus.”
The assailants of my father's fame hold as the key
of their position, that he was greedy after money, and
had all the meanness of character attendant on that sor-
did passion. With my hand upon my heart, or upon
the Evangelists, in the awful solemnity of an oath, I
can declare that, in my long intercourse with the world,
I have never known a more generous man, or one less
animated by the love of lucre. As well in the prime of
life, as afterwards in his old age, he carried his liberality
to an excess which at times amounted to imprudence.
I cannot for a moment suspect that, in making these
statements, I am misled by any filial partiality. The
facts which are vividly impressed on my memory, and
the private documents that lie before me, do more than
bear me out in what I have said on this point. I find
his heart and hand always open to the appeals of dis-
tress and misfortune; I find him paying debts to a
large amount for which he was not liable by law or in
equity, but which he paid out of a delicate sense of
honour, and a regard to the ties of blood which connected
him with the deceased debtor: and this I find him
doing at a time when his fortune was diminished by a
most unfortunate investment of capital. In fact to do
this deed he was compelled to sell out of the English
Stocks, and to reduce his domestic expenditure; which
last circumstance he regretted only inasmuch as it
might curtail the enjoyments of his wife and children.
Simple and unexpensive in his own habits, and finding
his chief pleasure in his books and garden, a small
annual sum would have been enough for him.
Touching his liberality and kindness to his family,
and his generosity to those who were dependent on
C
18 EAR LY LIFE OF
him, my recollections are likewise aided by documentary
evidence, and that, too, of a nature which goes to esta-
blish far more than I will endeavour to express, or ven-
ture to obtrude upon public notice. The domestics who
once entered his service generally remained in it until
they died, or until his death gave them their discharge,
together with some substantial token of his good will.
He treated them all as humble friends; solacing them
in their sickness, and not unfrequently causing some
of his children to preside over their little feasts and
periodical pastimes.* These are topics too trivial to be
dwelt upon; yet, as tending to an object of serious
inquiry, they will not surely be considered as altogether
uninteresting, or unworthy of this cursory notice.
Before the Chief Justice quitted England for the
East, he carefully drew up a set of instructions for the
nurture and education of the young family he was
about to leave behind him. The minuteness of these
instructions manifests a degree of attention and ten-
derness rare even in a good father. I have before me
no less than four draughts of these instructions, so
carefully corrected and transcribed, as to convince me
that more pains were bestowed upon them than on any
other paper, of whatever consequence, in my posses-
sion. The guardian appointed for these infants was
his brother, Michael Impey, who continued to reside
at Hammersmith, and who was repaid with no stinted
gratitude for the zeal and affection with which he
undertook and executed the difficult and delicate
charge. During Sir Elijah's long residence in India,
where several other children were born to him, a
very considerable part of a correspondence with his
relatives and friends at home was given to the sub-
ject of the education of the children left in England.
There everywhere appears in these letters an earnest
desire, a most tender anxiety, that his infants should
* When living, in the decline of life, in Sussex, he was a great advocate
for the maintenance of the ancient festival of Harvest Home; and often
amused himself, and delighted his domestics and tenants, by writing verses
to be said or sung at their harvest supper. One of these little jeux d'esprit
was set to music by the late well known natural philosopher, Tiberius
Cavallo, a frequent visitor at Newick Park, and is affectionately preserved
by Sir Elijah's only surviving daughter.
SIR ELIJAH IMPEY. 19
be diligently trained in religion and morality. This
consideration is always made paramount to that of
their acquiring the habits and accomplishments of
mere scholarship or gentility. Although few men
had a greater respect for learning, and all the higher
mental graces and acquirements of cultivated so-
ciety, he considered them as dross when placed in
comparison with those of a moral and religious life.
When the children could read and write, he corresponded
directly with them, mingling his fatherly admonitions
with the pleasantry of a playmate. In this way, he
could always trace back his steps to the scenes of his
own ardent youth, and be once more the brave West-
minster boy, or earnest Trinity scholar; and to this I
may likewise attribute part of the entire confidence and
affection, in which we ever lived together. These letters
from India to his children, could have little interest for
any other party, and were worth preserving only as
family relics; many of them have been scattered and
lost, but I have still a good number among my papers.
Nor are they the things in this world which I least
value. Playful and joyous, and encouraging as they
are, they were written for the most part when his health
was seriously affected by the debilitating climate of
Bengal; when his mind was harassed by official duties,
and contentions altogether alien to his nature, and
when he was oppressed by a multiplicity of conflicting
CàI’éS.
C H A P T E R II.
SPIRIT OF THE TIME –STATE OF PARTIES-REGULATING ACT,
ETC.
HAv1NG received the honour of knighthood from his
Majesty George III., and leaving his children in
England, Sir Elijah, with his wife, sailed for India on
board the “Anson,” in the early part of April, 1774.
Perhaps I cannot better fill up the interval occupied
by the voyage, than with a few notes—without however
pretending to any complete particulars—I. Upon the
political history of the time: II. Upon preceding events
in India, and preceding measures concerted in England
for the government of that country: and III. Upon the
Regulating Act; which, in practical efficacy, turned out
to be so lamentably deficient.
I. In 1773, when Sir Elijah was nominated to his
Indian judgeship, the administration of Lord North
was weak, and though certainly not as yet unpopular
with the great body of the nation, it was assailed by an
opposition more formidable in talent, and more united
in purpose, than any that had been known for many
generations. The prosecutions of John Wilkes, his
ejection from the House of Commons, and all the well-
known storms of the Middlesex election, had discredited
and weakened Government. The citizens of London, or
at least the bodies corporate, were inflamed by the
wealthy and influential Alderman Beckford, who played
into the hands of his friend, the discontented and morti-
fied, and almost disaffected Earl of Chatham. Of Wilkes
STATE OF PARTIES. 21
they both made use as of a sharp cutting instrument of
offence. Party spirit was perhaps never more violent
than at this period; or from 1768 to 1782, when Lord
North was driven from his helm, and Sir Elijah Impey
recalled from his tribunal in Bengal. I imagine it will
be now admitted by all impartial men, that grievous
faults and errors had been committed, as well on the
part of Government, as on that of Opposition; and that
Lord North, though a thoroughly amiable and right-
hearted man, an honest statesman himself, and a friend
to the liberties and constitution of his country, was
occasionally led by his friends, or driven by his foes, to
measures which had a tendency to despotism. But
what perhaps most injured his ministerial character was
a want of steadiness of principle in some of his col-
leagues.
When Wilkes had acted as a thorn in the side of
this ministry for years, and had, in effect, triumphed
over it, gaining by its unwise persecution a weight
and influence which he could not otherwise have
obtained; and when this Government, full of internal
heat and irritation, if not scorched by the flames, had
been blackened by the smoke of civic conflagration,
then commenced those troubles in our American colonies
which ended only in their alienation from the British
crown. At the time my father took his departure, and
indeed during the whole period of his residence in the
East, ministers were so occupied with this gloomy aspect
of affairs in the West, that it was only by short and un-
certain snatches that they could devote any attention to
our Eastern Empire. Hence it arose that Sir Elijah
Impey, in common with many other men holding re-
sponsible situations, was left for years without any con-
sistent set of instructions from home; nay, even without
a single answer to his numerous and most earnest re-
monstrances, and petitions for advice. It is not for me
to enter upon the still vexed question whether the war of
American independence might have been warded off by
concession and conciliation, or by a course of conduct
the opposite to that pursued by Lord North. It seems,
however, at this day, to be a very general impression
among well-informed and thinking men, that no line
of policy whatever, on the part of any British govern-
22 SPIRIT OF THE TIME,
ment, could long have delayed the American crisis, or
the attempt of the colonists to secure a separate and
independent national existence. It has been but too
common to attribute the war which ensued, to the pride,
love of dominion, and self-willedness of George III.
(whose historical character is improved almost year by
year by some new light thrown upon it, by the publica-
tion of memoirs and documents), and to the mean sub-
mission of Lord North to the will of his royal master.
But the most obvious of truths is, that the American
war, not only at its commencement, but for a long
time after, was exceedingly popular. The many provo-
cations which preceded those riots, and then the assaults
and humiliating insults committed at Boston, inflicted
a wound upon English pride, which the English people
were unable to bear without having recourse to the
arbitrement of arms. No ministry could have stood
which should have attempted to resist this national
feeling; and so bitter was the hatred borne to the re-
volutionists and republicans of the western world, that,
from the beginning of this war, the popularity of the
King began gradually to increase. The people of
England became loyal in proportion as the Americans
waxed republicans and federalists. Nor did the flagrant
mismanagement, and eventual ill-success of this pro-
tracted struggle abate one jot of the English feeling;
they drove Lord North from power, but they did not affect
the regard and respect in which his sovereign was held
by the vast majority of the nation.
An attentive perusal of the parliamentary debates,
and a study of the history of party at that time, will
prove, that our miserable failure in the American war
was not entirely owing to Lord North and his incom-
petent colleagues. The opposition, who started by
predicting that all our efforts would terminate in defeat
and failure, contributed, in a prodigious degree, to the
working out of their own prophecy. They thwarted
ministers at every step ; they censured or ridiculed their
conduct of the war, even when it was spirited and right;
they never lost an opportunity of extolling the valour
of the republicans, and depreciating the conduct of the
King's troops: , they turned nearly every American
burgher, that took the command of an undisciplined mob,
STATE OF PARTIES. 23
into a hero or great general; and they treated nearly
every general of the King, if not as a coward, as a fool :
before the Americans had gained a single advantage in
the field (a battle they never gained during the whole
war) they proclaimed them to be unconquerable, and
after the capitulation of General Burgoyne, they set no
limits to the expression of their affected despair.
Gradually all this, which was enunciated by rare elo-
quence, told upon the country, and upon the servants
of Government both military and civil : officers took their
departure for America being disheartened beforehand;
ministers, being harassed in all their plans, at last hardly
knew what plan to adopt, and became so bewildered,
that at last they let the war run on without any plan
at all.
When, during the American war, and at the moment in
which the embarrassments and difficulties it created, were
at the highest, this same formidable opposition began
to take up the subject of India—when Mr. Hastings,
with an exhausted treasury, and nearly every other
circumstance of discouragement, was contending against
the power of France, and a combination of native powers,
—the King was exceedingly alarmed. I am informed by
a friend who derived his intelligence from a near source,
that George III. said at this trying crisis, “These
gentlemen have been doing their best to make us lose
America, and now they will go on to make us lose
India | *
It was during these hot debates on American affairs,
that Mr. Burke began first to distinguish himself, and
to display that enthusiasm, which, even his warmest
friends and admirers will allow, he occasionally suffered
to transport him beyond the limits of justice, common-
sense, and propriety. Amid these violent political conten-
tions in parliament, the press was not idle. An activity
was there excited, which it had never known before. There
the newspapers, pamphlets, and other publications of the
day, carried on a war of argument, wit, ribaldry, and in-
vective, in support of their respective parties; there, as
in later times, declamation and rhetoric were often sub-
stituted for reasoning, while it was most rare that any
scrupulous attention was paid to sober facts. By far
the ablest pens were those dipped in Opposition ink.
24 SPIRIT OF THE TIME.
Even numerically, the writers of this party exceeded
those of the ministerialists; for men out of office have
more time for writing and printing than men trammelled
with official business. Attack is more pleasant and
excitable, and, at the same time, much more easy than
defence; and it seems to be the natural instinct of literary
men, to look up rather to an untried opposition, than to
a tried administration. The most considerable of all these
writers was Junius; whose letters in the Public Adver-
tiser excited general notice, striking the Ministry, at
the same time, with astonishment at the unwonted
audacity of their attacks. That they continue even now
to be an object of some interest, is, I conceive, almost
entirely owing to the mystery of their authorship, and to
the frequent disputations which have been held there-
upon; although, since the year 1824, that question ought
to have been set at rest by Mr. Taylor's laborious and
ingenious volume.
After venting his acrimony against the ministers,
and other leading men of the time, Junius levelled
a shaft at Majesty itself. This outrage, which ap-
peared in the Public Advertiser of December the 19th,
1769, gave rise to the prosecution, by the Attorney
General, of Woodfall, the printer and publisher of that
newspaper. On the 13th of June, 1770,” within four
months after Lord North had become First Lord of the
Treasury, on the resignation of the Duke of Grafton,f
who was said to have been driven from the premier-
ship by the heavy and venomous scourge of this anony-
mous writer, the trial took place before the great Lord
Mansfield; who, in his charge, instructed the jury that
all they had to decide was the fact of publication. The
jury, presuming to dispute the legality of this direction,
found the defendant guilty of printing and publishing
only, which verdict annulled the prosecution, and vir-
tually amounted to an acquittal. Encouraged by this,
Junius presumed to attack the Lord Chief Justice, on
* See “ Howell’s State Trials.”
† His Grace resigned on the 28th of January, 1770, Woodfall's trial
came on June 13th following. It is remarkable, but not surprising, that
there is no mention of the trial in the “Annual Register’’ for the year,
while the date of the resignation is there very circumstantially recorded.
STATE OF PARTIES. 25
what he called his new principle of English law.” At
the same time, many able men at the bar supported the
learned Judge both in his doctrine, and its applications;
thus, as a matter of course, making themselves objects
of the malice and unextinguishable hatred of Junius.
For the space of nearly two more years, Junius went on
most remorselessly assailing a number of eminent cha-
racters; accusing some of them of heinous personal, as
well as political vices, of which it is notorious that they
were innocent, and emptying the vials of his wrath upon
all the measures of Government. But suddenly, towards
the close of 1772, to the wonder of some, and the relief
of many, his signature disappeared altogether from the
pages of the press. A very short time after this, Mr.
(subsequently Sir Philip) Francis, whom I as firmly
believe to have been the author of the letters of Junius,
as I believe him to have been the first, the most perse-
vering, and the cruellest of my father's enemies, received
from Lord North, or at least from Lord North's govern-
ment, his splendid appointment as member of the
Supreme Council of Calcutta, with a salary which
amounted to just ten thousand pounds per annum.
He had never before held any place under Government
except that of a clerk in the War Office, with a salary
of two or three hundred pounds. He had no family
support, no political connection, no sudden accession of
personal importance, except what he may have gained
as a pamphleteer, and as the author of the bitterest
political satires that had ever before appeared in the
newspapers, to account for this sudden and extraordinary
rise. In the same fleet which carried out Sir Elijah
Impey, was Mr. Philip Francis, and the two other
* It is well known how directly Lord Mansfield was opposed to all
those popular contentions, in which Alderman Wilkes, Oliver, and Crosby,
encouraged by their parliamentary patron, Lord Temple, and their legal
adviser, Pratt (Lord Camden), took so mischievous a part. But it is not
so generally known, that my father bore an ample share, with the great
Lord Chief Justice, in the obloquy cast upon him by Junius, though not
in his letters; or that, in Lord George Gordon's riots, the house at Ham-
mersmith, as connected with his name, was threatened with attack, but
bravely defended by his brother, in 1780.
† Francis was acquainted with Burke before leaving England; and during
his residence in India, he maintained an active correspondence with
Burke's cousin. This will be more particularly alluded to in a future
chapter.
26 SPIRIT OF THE TIME.
members of the newly-created council; they all arrived
at Calcutta together, and entered upon their duties at
the same time. The two colleagues of Francis, were
both men of high and old standing in the world; allied
to rank, and with those political connections, without
which it was most rare, in those days, for any man to
attain to eminent employment in the State. But of
General Clavering, and Colonel Monson, more will be
said in the next chapter.
Unhappily, in the eye of the world, there is too close
a connection between my father's public character, and
the character and performances of that great professor
and teacher of defamation, the author of the letters of
Junius, whose school became so extensive. A few more
words, therefore, on the writings of Junius, the tone of
the political press, and the spirit of party which dis-
graced those times, may not be considered out of place.
The public and parliamentary language of the time
(from 1760 to 1788), was gross, and contemptuous of
all authority. Junius had set the example by insulting
not only the throne, but the private habits and personal
feelings of all classes. If the King was not too high,
the obscurest magistrate was not too low for his attack.
Junius was the anonymous writer who first assailled all
men under their own names; he was the subtle assassin
who dropped poison into the cup of not only every public
man but of every private individual whom he thought it
expedient to injure or destroy. In some cases the poison
was administered to his direct personal enemies; but
much more frequently it was mixed, and given solely
for the purpose of working out a political end, or for
the mere oratorical object of producing a startling effect
upon the world. In the majority of cases, there was
not even the bad excuse of vehement feeling or private
passion : he poisoned without hatred or any acquaint-
ance with his victim ; he murdered in cold blood. The
ability of the writer, though for a long time extravagantly
overrated, is indisputable; but its abuses deprive it of
all the higher admiration due to the exercise of talents
honestly employed in an honest cause. The remorseless
and malignant venom of this political serpent, annuls
all our praise of its force and beauty. While the school
of Junius continued to be the model of English political
STATE OF PARTIES, 27
writing, declamation kept the place of fact, and satire
that of research ; the reason was not convinced, but
the passions were inflamed ; for what was written in
cold blood, was read by the unthinking multitude with
fury : a ceaseless perversive war was carried on; fester-
ing and enfeebling the public sense of truth, justice, and
honour. These dialectics are only in part exploded.
Unhappily, the school still exists, and Junius is still the
favourite model of too many of our anonymous writers,
whether they figure in Edinburgh Reviews or Weekly
Despatches.
It was also during the stormy and exciting period
now under consideration, that the practice of re-
porting fully the speeches and proceedings of Par-
liament in newspapers, was for the first time admitted;
after the struggle made by the Parliament for privileges,
and many strange scenes which tended to raise the
popularity of Mr. Wilkes and his friends, and to throw
more and more disfavour upon Government and its ad-
herents. Previously to this internal revolution, Parlia-
ment pretended to the property or custody of whatsoever
was said within its walls, holding it a breach of privilege
in any person to print the speeches of its members; and
such reports of Parliamentary debates as appeared, were
under fictitious names, and generally placed in some
remote or imaginary country. Doctor Samuel Johnson,
in the earlier part of his literary career, furnished
monthly, to the Gentleman's Magazine, an article en-
titled “The Senate of Lilliput.” Herein was typified
the British Parliament, the speaking members of which
figured sometimes with feigned denominations, and
sometimes with anagrams of their real names. Johnson
drew up these speeches and debates, from scanty notes
furnished by persons employed to attend in both Houses;
but he told Boswell that sometimes, however, he had
nothing more communicated to him than the names of
the several speakers, and the parts which they had
taken in the debate. “Parliament,” says Boswell, “then
kept the press in a kind of mysterious awe, which made
it necessary to have recourse to such devices.” About
the year 1770, the proceedings in the House of Com-
mons in the case of John Wilkes, the letters of Junius,
the interest felt about the Falkland Islands question,
28 SPIRIT OF THE TIME.
and about the rapid march of federalism in America,
the growing curiosity of the people, with the efforts
made by the legislation to repress it, all contributed to
make the public earnestly long for a full reporting
newspaper, and encouraged the printers to venture
upon giving the proceedings of Parliament from
week to week, or from day to day, instead of giving
them, as heretofore, as mere matters of chronicle at the
end of the month. On the 5th of February, 1771,
Colonel George Onslow, one of the Lords of the Trea-
sury, denounced these proceedings, and moved the
reading of the resolutions of the 26th of February,
1728 : “That it is an indignity to, and a breach of
privilege of this House, for any person to presume to
give in written or printed newspapers any account or
minutes of debate, or other proceedings of this House,
or any part thereof; and that, upon discovery of the
authors, printers, or publishers of any such written or
printed newspaper, this House will proceed against the
offenders with the utmost severity.”
In the debate which immediately followed upon this
question, Colonel Onslow was supported by a majority
of 90 against 55, and two printers” were called to the
bar of the House; who, when committed to the Serjeant-
at-Arms, for infringing the standing order, &c., like
several others of their fraternity, grew refractory; and
being supported by their popular leaders in the City,
finally triumphed over the authority of Parliament, as
well as that of the courts of law.
This was the proximate cause of all those memorable
civic contentions; involving a long train of events, too
well known, and too ably and copiously detailed in a
late historical work, to require any recapitulation in
this...f. It appears to me sufficient, in alluding to those
transactions, wherein Mr. Wilkes and his colleagues
took so prominent a part, and wherein his subordinates,
the proprietors and printers of the Worth Briton, and of
the Daily Advertiser, gained so signal a victory, if I
simply establish a fact, very essentially, though but
* Thompson and Wheble. -
ºf See Mr. McFarlane's full and candid account of the “Civil Transac-
tions” of this period, in the “Pictorial History of England,” published by
Charles Knight and Co., London, 8vo., 1843.
STATE OF PARTIES. 29
collaterally, connected with the right understanding of
my subject, always bearing in mind the immense in-
fluence of the press, for good or for evil, over the fame
and fortune of public men.
This was the era when it was first and most decidedly
fixed ; nor would it be easy to name any other period
than that between the years 1773 and 1788, in which
that predominating influence ever more directly tended to
exasperate the spirit of the times, or in a greater measure
subserved to the purposes of political faction. But a
newly acquired liberty is mostly liable to abuse; and the
feeling of triumph is inconsistent with calm discretion.
After this victory over a weak government, the press
became more virulent than it had previously been ; the
imitators of Junius took the field, superseding, by a
wholesale monopoly of scandal, all the chronicles of
their day, and attacking, not by anagrams, but by name,
every character, whether high or low, personal or
official : in short, liberty ran into licentiousness; and
thus a school for political writing was established,
which consigned to the tender mercies of any prevail-
ing faction, the reputation of all men, as they were
more or less inclined to one or other party. Had
this state of things remained stationary, it might
have been well; for, hitherto, the principle at least
tended to the public good, and the wrong occasionally
done to individuals, might be said to be balanced by the
benefit bestowed on the many. Some notorious delin-
quents were justly held up to shame and reprobation; and
if here and there a more venial offender was too roughly
handled, and the character of a perfectly innocent man
misrepresented, the one would probably become more
circumspect in future, and the other have the chance of
justifying himself by an open defence. But, when the
actions of men, good or bad, came to be estimated by
an uncompromising spirit of party; when able and
spirited writers, and eloquent parliamentary orators, laid
it down as their maxim, that nothing could be right but
what was in conformity with their measures, and that
no respect was due to the character of a political oppo-
nent; then came a state of society so repugnant to
justice and morality, that no arguments of public expe-
diency can possibly atone for it.
30 SPIRIT OF THE TIME.
Such was the state of things in England, as well
at the time when Sir Elijah Impey received his Indian
appointment, as during his long absence from this
country; and such it continued to be many years after
his return. This spirit of political prejudice fell with
reckless vengeance on other men connected with India;
who, whatever their errors might have been—for who is
without error 7—had yet deserved better treatment of
their country, than to be sacrificed to the fury of her
demagogues and partizans.
I have freely admitted that the ablest pens were em-
ployed on the side of the opposition. Through the
negligence of Lord North, through the harassing and
incessant occupation given to him by the American
war, and through various other circumstances, this for-
midable party, some years before the period of Sir Elijah
Impey's recall, had acquired almost an entire controul
of the press, by which I understand not only the news-
paper press, but also that employed in the production
of pamphlets and books.
Long before this period, viz., in 1759, came out the
first volume of the Annual Register, of which Mr. Burke
wrote the historical part. It very soon obtained the
extensive notice and circulation to which its literary
merits entitled it. The Register was an immeasurable
improvement upon any work of that kind which had
previously been attempted; nor is it too much to
say that, so long as the illustrious Burke was con-
nected with its publication, it maintained a decided
superiority over every other work of a similar descrip-
tion. For many years that gentleman continued to
write the historical part; and afterwards, when pre-
vented by parliamentary business from wielding his
own pen, he deputed either Dr. Lawrence, or some
other political friend, who not only took his tone, but
also much of his information from the original great
contributor; himself superintending the whole. I need
not refer to earlier portions of that periodical work;
but can confidently affirm, that, from the time when
my father went to India, down to his appearance at the
bar of the Commons, the historical portions of the
Annual Register are pervaded throughout by the man-
STATE O F PARTIES. 3]
ner, thought, feeling, and passions of Edmund Burke.
Great and grievous as were the wrongs he was led to
inflict upon him to whom I owe my birth, and all that
makes life valuable, I class myself among this great
man’s literary admirers; I bow to his transcendent
genius; I revere much of his political philosophy, his
honesty of purpose, his energy of mind; I look upon
him, in short, as one proudly pre-eminent above all his
political contemporaries; as one who was as little
spoiled at heart by the prejudices of faction, and the
demoralizing influences of public life, as any merely
mortal man could have been in those times. I would
no more defame the writer of the “Reflections on the
French Revolution,” than I would asperse my own
father. I believe Mr. Burke to have been utterly in-
capable of saying and writing that which he really and
positively knew to be untrue: but, when any relation
of events accorded with a pre-conceived motion of his
own, I believe him to have been impetuous in seizing
that relation, and easy in being duped by almost any
artful, ingenious, and persevering man : and such a
man was Philip Francis, and such were several others
who filled his ears with Indian stories, even before he
became intimately acquainted with the author of the
letters of Junius.
Burke being once convinced of the truth of any state-
ment, however false, was always most difficult to be
reclaimed : his conviction became ever after a passion
and a principle. He had taken up, at an early period,
the history of Lord Clive's conquests, and the woes
of the native Indian population; and he never, to the
end of his days, could cease to think of these things
without the fervour and enthusiasm of youth. While
writing or superintending the historical department of
the Annual Register, every striking account, real or
fictitious, of wrongs committed there, was sure to find
his ear open to receive it, and his mind not disposed
to any severe inquiry into the authenticity of the tale.
The enemies of Mr. Hastings, and of my father, knew
all this, and took advantage of it to lay that substratum
for their secret calumny, which was formerly recom-
mended by one great professor of that art, and which
32 SPIRIT OF THE TIME.
has been more recently adopted by another. “La
calomnie monsieur,” says the noted Don Basile, in
Beaumarchais' famous comedy,
“La calomnie monsieur, vous ne savez guère ce que vous dédaignez;
j'ai vu les plus honnètes gens près d'en 6tre accablés. Croyez qu'il
n’y a pas de plate méchanceté, pas d'horreurs, pas de conte absurde,
qu'on me fasse adopter aux oisifs d’une grande ville en s'y prenant
bien : et nous avons ici des gens d'une adresse ! . . . . D'abord
un bruit léger, rasant le sol comme hirondelle avant l'orage, pianissimo
murmure et file, et séme en courant le trait empoisonné. Telle bouche
le recueille, et piano, piano, vous le glisse en l’oreille adröitement. Le
mal est fait, il germe, il rampe, il chemine, et rinforzando de bouche en
bouche, il vale diable; puis tout à coup, me sais comment, vous voyez
la calomnie se dresser, siftler, s'enfler, grandir à vue d'oeil. Elle s'élance,
etend son vol, tourbillonne, enveloppe, arrache, entraine, éclate et tonne,
et devient, grace au ciel, un cri général, un crescendo public, un chorus
universel de haine et proscription. Qui diable y résisterait ’’’
In each Annual Register that appeared for several
years before the party were prepared to begin their
impeachments in Parliament, there was some bruit
léger, some whisper more or less loud, some hint more
or less broad, that matters were shamefully managed in
Bengal; that Hastings was acting as a tyrant, and the
Chief Justice as his tool. These indistinct murmurs met
with no reply; there was scarcely a possibility of re-
plying to them : and to the parties most interested, that
is, to Warren Hastings and to Sir Elijah Impey, (the
one upheld by the conviction that, at that very epoch,
he was saving, or had saved, British India, and the
other by the consciousness of his innocence and activity
in the same cause), they seemed of little moment; yet
these murmurs were widely spread, and eagerly listened
to ; preparing the public mind for the reception of those
grosser calumnies which followed. Then, after a long
interval, came Francis's Book of “Travels in Asia, &c.,”
of which, as well as of other matters connected with
the adverse influence of the press upon my father's
fame, more will be said hereafter.
While the long trial of Mr. Hastings lasted, few took
the trouble of reading anything that was written on the
other side: the general impression or conviction was
made and kept up exclusively by those eloquent and ex-
citing speeches, those tremendous and overwhelming
charges which came flashing and thundering from the
House of Commons, to be re-echoed and re-kindled in
PRECEIDING EVENTS IN INDIA. 33
Westminster Hall. If, afterwards, the memory of the
hearer or reader failed him as to some particulars during
this interminable process, he refreshed it simply by
referring to the Annual Register, which book, as I
have said, was under the controul of Mr. Burke, and
the repertory of his vehement feelings.
When that great storm blew over, and the trial and im-
peachment of Mr. Hastings, together with the defeated
attempt to impeach Sir Elijah Impey, became matter
of history, still those facts were most rarely, if ever,
studied in any other work than the said convenient and
compendious Register. Even now, at the distance of
more than half-a-century, the same accessible and easy
source is almost singly resorted to by the dull compiler
who fabricates a history, and the vivacious and pains-
sparing scribbler who furnishes an article for a Review.
Thus, every account of the transactions in which Sir
Elijah Impey was concerned, rests upon mere ex-parte
evidence, and originated in narratives inflamed with party
spirit: and thus it is, that even in this, which is called
a reading age, motives the very reverse of those which
actuated the conduct of Sir Elijah Impey, are still
attempted to be imposed upon the public. Upon no
better materials than these have histories been compiled,
and articles composed. But, if I mistake not in believing
that a very general disgust,-a stern and moral odium,_
still attaches to such performances, the attempt will fail.
Insignis est temeritas cum aut falsa, aut incog-
nita res approbatur. Nechóc quicquam est tur-
pius, quam cognitioni et perceptioni assertionem
approbationemgue praecurrere.
II. For a long series of years, the British Govern-
ment bestowed but a small portion of its attention upon
the affairs of India. Nearly everything was left to the
management of the chartered Company, whose acts had
hitherto been rarely questioned in any way. But when
the great Clive, by his astonishing victories, and successful
policy, had raised the Company from the humblecondition
of a merely commercial body, trading and residing in
the country upon sufferance, and having firm possession
D
34 PRECEDING MEASURES FOR
of only a few forts, to the condition of a sort of sovereign
power, with absolute possession and authority over
provinces more populous and extensive than many an
European kingdom, ministers were constrained to take
somewhat more notice of Hindustan. The jealousies
excited by Lord Clive's great wealth and influence, still
more the deadly hatred of his reforms in India, had
kindled such a commotion among all classes of men, that
the ear of ministers was incessantly beset with charge
upon charge against him: this led eventually to those
bitter parliamentary proceedings, which mainly contri-
buted to bring his life to so melancholy an end.
Lord Clive, as well during his arduous services in
India, as after his return, strongly expressed his opinion
that our Indian Empire was too vast to be governed as
it hitherto had been, by a dozen or two of plain citizens
called directors, and some hundreds of shareholders
called proprietors. He repeatedly declared, that the
cause of misgovernment in England, lay not so much
among the resident servants of the Company, as in the
Company itself—not so much in India as in Leadenhall
Street. Other less experienced but equally reflecting
men had come to the same conclusion; and it was very
generally considered, that there was not much reliance
to be placed in the disinterestedness or moderation of a
body so constituted, and that the Court of Directors
were scarcely to be considered competent to the wise,
just, and effective management of a population of eighty
millions, at the distance of ten thousand miles
In the year 1767, when Lord Clive was on his return
from Calcutta, the affairs of the East India Company
attracted the serious attention of Parliament; and it
was then, for the first time, contemplated to place them
under the controul of His Majesty's ministers; a mea-
sure which, though partially provided for by the Regu-
lating Act, was not ultimately effected till ten years
after, by Mr. Pitt's wise institution of the Board of
Controul, in 1784.
But the various difficulties which were then opposed
to such an arrangement, and the large amount of revenue
(£400,000) which the Government derived from the
Company, in compensation for their exclusive charter,
with the supposed difficulty or impossibility of making
GOVERNING INDIA. 35
up that large revenue, were enough to relax the efforts
of those who were most inclined to the project, and
even to postpone its execution for seventeen years
It was not until after the annual defalcation of that
revenue to the state, and the annual increase of dividend
to the proprietors, that the leaders of the administration,
in 1773, returned in earnest to the subject. It was then
that the pecuniary embarrassments of the Company at
home, and the abuses arising from its maladministration
abroad, seemed to afford a full opportunity of interfer-
ence; but there can be no doubt, that Lord North and
his colleagues looked also to the extensive field of
patronage, which the Directors had hitherto monopo-
lised. After some vehement debates, a select committee
of the House of Commons was invested with full autho-
rity for every purpose of the most searching inquiry.
The labours of this committee, after several reports, and
many prolonged consultations, in which there was a great
contrariety of opinions, and even of fundamental princi-
ples, resulted in the bill for regulating the concerns of
the East India Company, civil and judicial. This act
briefly and commonly called “the Regulating Act,” was
passed in the month of June, 1773, and commenced its
operations in India on the 1st of August, 1774.
III. The only parts of the new constitution—for such
it was—which had a direct influence upon the govern-
ment in India were, The appointment and powers
of the Governor General and Council; and the creation
of the Supreme Court of Judicature.
The Act appointed Warren Hastings to be Governor
General, a loftier title than he or any of his predeces-
sors had hitherto enjoyed; but it set up, at the same
time, a new council of four, who were nominated by
the crown, and were not removable except by the king,
upon representation made by the Court of Directors.
The Act failed to give a distinct limitation of power, or
to draw any line whereby to show how the authority
was to be divided between the Governor General and
these new Members of Council, or how far the one
could act without the others.
From these fertile elements of disunion, it almost
necessarily followed that, from the very first arrival of
the new Members of Council in India, there broke out
D 2
36 REGULATING ACT
the bitterest jealousies and dissensions between the
Governor General and the majority of his colleagues.
These feelings never ceased until the empire which
Lord Clive had founded, and which Mr. Hastings had
extended and consolidated, was brought into the ut-
most jeopardy : nor, in truth, were they discontinued
even at that crisis, which was concurrent in date with
the lamentable issue of our American war.
Hence it could scarcely, by any possibility, happen
otherwise, than that the Chief Justice of the newly-
constituted Court should be thwarted in his functions,
at their very outset, by these commotions, engendered
by the defects of the Act itself, at the seat of Indian
government, and in the centre of his own jurisdiction.
It is true that in India, at least, though cruelly em-
barrassed, and for a time disunited by their enemies,
both Mr. Hastings and Sir Elijah Impey ultimately
triumphed over their malice, and thereby, each in his own
department, contributed to rescue our Indian Empire;
the one by his great reputation and astonishing genius
for government, the other by his firm and able ad-
ministration of English law : but it was not till both
law and government had been shaken to their very
foundations; not till their own fame and fortunes had
been well nigh overwhelmed in that unequal contest.
Both for many years outlived their persecution,--both
died long since, lamented and revered by those who
knew them best. To this extent their destinies were
inseparable ; but when, at the end of more than
thirty years from my father's death, the old exploded
calumnies are revived; when it is attempted once
more to stigmatize their honourable friendship by
connecting it with guilt, it behoves me, both as the
friend of Mr. Hastings, and the son of Sir Elijah, to
repel the foul aspersion : and this I will endeavour
to do, not by vague and unsupported declamation, but
by plain and documental proof. With this view, it will
be necessary, in the first place, to examine the Act 13th
George III. cap. 63; particularly that part of it which
relates to the Supreme Court of Judicature, for it is this
that claims the fullest attention; nor will it be possible
to come to a right understanding of the merits of the
case, without reciting the principal clauses of that part
A ND CHARTER. 37
of the Act, as the surest guides to explain its general
tenor, and to define, as far as possible, the jurisdiction
which it was meant to convey.
The preamble to the Regulating Act sets forth, that,
“Whereas the several powers and authorities granted by
charters to the East India Company, have been found, by ex-
perience, not to have sufficient force to prevent various abuses
which have prevailed in the administration of the affairs of the
Company, to the manifest injury of public credit, &c., it is
highly expedient that certain farther regulations should be
provided.”
Clause X. Nominates Major General John Clavering, the
Honourable George Monson, Richard Barwell, Esquire, and
Philip Francis, Esquire, Members of the Supreme Council,
to continue in office five years; counting from their arrival
in Bengal.
XIII. Establishes by charter, a Supreme Court of Judica-
ture, at Fort William, with this preamble, “Whereas His
late Majesty George II., by letters patent, dated January 8,
of the 26th year of his reign, granted to the said Company
his royal charter to constitute Courts of Civil, Criminal, and
Ecclesiastical Jurisdiction, and which charter does not suffi-
ciently provide for the due administration of justice, &c., be
it therefore enacted, that it shall be lawful for His Majesty
to erect a Supreme Court, to consist of a Chief Justice, and
three other judges; which said Supreme Court, shall have
full powers to exercise all civil, criminal, admiralty, and
ecclesiastical jurisdiction, and appoint such clerks, and other
ministerial officers, with such salaries as shall be approved of
by the said Governor General and Council, &c., and also shall
be at all times a court of record, and a court of oyer and
terminer, and gaol delivery, in and for the said town of
Calcutta, and factory of Fort William, in Bengal, and the
limits thereof, and the factories subordinate thereto.
XIV. Limits the extent of the jurisdiction of the Court to
all British subjects residing in the provinces of Bengal,
Bahar, and Orissa, or shall then have been directly or indi-
rectly in the service of the said Company, or of any of His
Majesty's subjects.
XV. Prohibits the Court from trying any action of indict-
ment against the Governor General and Councillors for any
offence not being treason or felony.
XVI. Gives power to try all other persons, being His
Majesty's subjects, on all suits and actions against any
inhabitant of the provinces aforesaid; all suits and actions
38 REGULATIN (; A CT
being brought before the Court in the first instance, or by
appeal from the sentence of any of the provincial courts.
XVII. Exempts the Governor General and Councillors
from arrest and imprisonment.
XVIII. Grants a power of appeal from the judgments of
the Court to the King in Council.
XIX. Enacts that so much of the charter of 26th George II.
as relates to the establishment of the Mayor's Court at
Calcutta, be repealed by the new charter immediately on the
publication thereof; but that the said charter of the 26th
George II., in all other respects shall continue in full force.
XX. All records, muniments, and proceedings, belonging
to the said Mayor's Court, to be delivered to, and preserved
by the Supreme Court.
XXI. Appoints the salaries of the Governor General, of the
Councillors, and of the Judges: viz., to the Governor General
2625,000; to each of the Councillors 26 10,000; to the Chief
Justice 268,000; and to each of the other Judges £6,000 per
annum, out of the territorial acquisitions of the Company.
XXII. States these salaries to commence from the time of
their appointments, and that they shall be in lieu of all fees,
perquisites, and emoluments whatsoever.
Several of the clauses which next follow, relate to the
receiving of presents from the native princes, the carrying
on of private trade by the servants of the Company or
government, &c. The Governor General, and the Mem-
bers of the Council, were strictly forbidden being con-
cerned in any commercial transactions. Every per-
son holding any civil or military office, either under
the Crown or under the Company, was forbidden to
accept, receive, or take directly or indirectly, from any
Indian princes, or their ministers or agents, or from
any of the natives of India whatsoever, any present,
gift, donation, gratuity, or reward, pecuniary or other-
wise, upon any account or pretence whatsoever. The
penalties threatened were sufficiently severe, and were
thus clearly expressed,—
“And if any person holding or exercising any such civil or
military offices, shall be guilty of any such offence, and shall
be thereof legally convicted in such Supreme Court of Calcutta,
or in the Mayor's Court, or any other of the Company’s set-
tlements, where such offences shall have been committed ;
every such person so convicted, shall forfeit double the value
of such present, &c., so taken and received, one moiety to the
AND CHARTER, 39
said Company, and the other moiety to him or them who shall
inform or prosecute the same : and also shall be sent to
England, unless such person so convicted, shall give sufficient
Security to remove himself within twelve months of the said
conviction.”
All these servants, whether civil or military, were for-
bidden to enter into any private commercial transactions.
XXXI. This clause of the Act, subjects persons making
composition contrary to the meaning of the Act, to imprison-
ment, at the discretion of the Court.
XXXIII. Makes the Company’s servants liable to fine and
imprisonment for breach of trust.
XXXIV. Enacts that all offences shall be tried by a jury of
British subjects resident at Calcutta, and not otherwise.
XXXV. Gives the Company the power of compounding or
discharging the sentences of the Supreme Court, in cases of
debt or penalty due to the Company, on the same being made
known to the Directors.
XXXVI. Empowers the Governor General and Council to
make all just regulations, which, however, shall not be valid,
until duly registered in the Supreme Court; and grants ap-
peals to the King in Council, to set aside the rules of the
Court, a copy of the same being affixed in the India House,
and held valid, until it be set aside or repealed upon the
hearing or determination of such appeal.
XXXVII. Directs the Governor General and Council, to
transmit copies of their rules to one of the Secretaries of State.
XXXVIII. Constitutes the Governor General and Council
to act as justices of peace.
XXXIX. Declares the Governor General and Councillors,
the Chief Justice and other Judges of the Supreme Court, as
well as all other persons holding office under the Crown or
the East India Company, liable for offences committed against
this Act, to be tried in the Court of King's Bench, in the
County of Middlesex.
XL. Recites the manner of procedure in cases of indict-
ments and informations laid in the Court of King’s Bench.
XLI. Lays down the particular manner of procedure in the
King's Bench, in all cases of offence or misdemeanour, com-
mitted by the Chief Justice, and the other Judges of the
Supreme Court.
XLII. Enables the Lord High Chancellor, or the Speaker
of the House of Commons, to issue warrants for the exami-
nation of witnesses, touching all such offences, which shall be
deemed competent evidence, to both Houses of Parliament.
40 T EGUILATING ACT
XLIII. Enacts that no proceedings in Parliament against
offences committed in India, shall be discontinued by
prorogation.
XLIV. Empowers the Courts in Westminster, a motion
duly made, to award and provide writs, in the nature of a
mandamus, to the Chief Justice and Judges of the Supreme
Court, when the Company commence suits in law or equity,
XLV. Provides, however, that no such depositions taken and
returned as aforesaid, by virtue of this Act, shall be allowed
to be given in evidence in any capital cases, other than such
as shall be proceeded against in Parliament.
It will be seen that by the letter of this Act, the
jurisdiction of the Supreme Court was made very exten-
sive. But, as if the home Government doubted whether
the powers thus granted would prove sufficient in India,
where the servants of the Company, who would still
form so large a portion of the governing power, might
find their interests opposed to the Court, the juris-
diction was still farther enlarged by some provisions
which closely followed the Regulating Act. Under the
date of the 26th of March, 1774, were issued letters
patent, establishing the Supreme Court of Judicature,
at Fort William, in Bengal. Here the first clause re-
cites so much of the Regulating Act, 13th George III.,
cap. 63, as regards the Court.
II. Creates, directs, and constitutes a court of record, to be
called the Supreme Court of Judicature, at Fort Willliam, in
Bengal.
III. To consist of a chief justice, and three puisne judges,
appointed by the King under the great seal, to act during
pleasure.
IV. To be justices of the peace and coroners in Bengal,
Bahar, and Orissa, and to have authority as the justices of the
King's Bench in England; the four, or a majority, to concur,
and the Chief Justice to have a casting voice.
W. To have a seal, to be kept by the Chief Justice, or by
the senior puisne judge.
VI. All writs, summons, rules, precepts, &c., to be issued
by the Court in the King's name.
VII. Fixes the salary of the judges as in the Regulating
Act, and assigns to them rank and precedence, &c.
VIII. Nominates Elijah Impey, of Lincoln's Inn, Esquire,
first Chief Justice, and Robert Chambers, of the Middle
Temple, Stephen Caesar Lemaistre, of the Inner Temple,
AND CHARTER. 41
John Hyde, of Lincoln's Inn, Esquires, to be first puisne
justices.
IX. Appoints the existing sheriff to continue in office until
another be appointed, prescribes the future appointment, the
oath of office, provision in case of death, his duty, mode of
proceeding when a party, &c.
X. Gives the Court power to appoint clerks and officers,
with salaries to be approved by the Governor General and
Council. Such officers to reside within the jurisdiction of
the Court.
XI. The Court to approve advocates and attornies-at-law,
and to remove them on reasonable cause.
XII. And to settle the fees, as approved by the Governor
General and Council,
XIII. Tables of fees to be hung up in Court, and copies
thereof, with a list of the officers, transmitted to England.
XIV. States the power and jurisdiction of the Court in
Bengal, &c., in all trespasses against the Company, Mayor’s
Court of Calcutta, or others in Bengal, or others who have
resided there, or who have effects there, or are or have been
in the Company’s service, or of the Mayor’s Court, or of
others, but not against such who have never resided there.
Also the Court’s power to try causes, actions, and suits of
Indian inhabitants within Bengal, &c., where the cause shall
exceed 500 current rupees. It then prescribes the mode of
proceeding in such actions. Plaint or bill, summons, precept,
and appearance, to be in writing. Examination of witnesses
on oath. Allows reasonable expenses, compels payment, en-
forces oaths upon witnesses, except upon Quakers. Enables
the Court to give judgment on hearing the parties, in case
defendant should make default after appearance, or refuse to
make defence, and to award costs.
XV. And to issue writs of execution for seizing effects.
Debts so seized to be paid as the Court shall appoint. Such
interlocutory orders to be made as the Court shall see fit.
In failure of appearance, the Court may order the party to be
arrested. The sheriff may take bail for appearance. It states
also the proceedings thereon.
XVI. Recites former proceedings, either where the Com-
pany are plaintiffs or defendants. Grants the Company the
appointment of an attorney to act in their behalf, and states
the form of proceedings. If the Company refuse to appoint
an attorney the Court may.
XVII. Disputes between Indian natives (see ante II.) and
British subjects, may, by this clause, be determined in the
Supreme Court; and causes of action exceeding 500 current
rupees, and suits brought in other courts, either party ap-
42 REGULATING ACT
pealing to the Supreme Court, it shall cause proceedings else-
where to surcease, and the Supreme Court shall determine
thereon.
XVIII. Constitutes the Supreme Court a court of equity,
like the Court of Chancery in Great Britain, and empowers
it to compel appearance accordingly. *
XIX. And to be a court of oyer and terminer, and gaol
delivery. The sheriff to summon grand juries, and petit
juries, &c.—And in all respects to administer criminal jus-
tice in such or the like manner and form, or as nearly as the
condition and circumstance of the place and the persons will
admit of, as in the courts of oyer and terminer, in that part
of Great Britain called England, and to hear and determine,
and award judgment and execution of all treasons, mulders,
felonies, forgeries, &c., committed in the districts and provinces
called Bengal, Bahar, and Orissa, by British subjects, or other
persons who shall at the time of committing them, have been
employed by, or shall have been directly or indirectly in the
service of the Company. It makes it unlawful for offenders
to object to locality, or the Court’s jurisdiction, or to juries;
and orders all offenders to be tried as if their crimes had been
committed in Calcutta.
XX. Empowers the Supreme Court to reprieve or suspend
execution of sentence, in cases where there shall appear a
proper occasion for mercy, until the King's pleasure be known.
In such cases, a state of the case, and of evidence, and of
reasons for recommending the criminal to mercy, is demanded
of the Court.
XXI. Makes the court of requests, and quarter sessions,
established by the late charter of the 26th of George II., and
the justices, sheriffs, and other magistrates, subject to the
Supreme Court, as the lower courts of Great Britain are to
the Court of King's Bench. And grants the power of issuing
writs of mandamus, certiorari, &c., and to punish contempt
by fine and imprisonment.
XXIII. Confers on the Supreme Court, the same ecclesias-
tical jurisdiction over British subjects as is exercised in the
diocese of London, &c., and the power of granting probates,
and to commit letters of administration of intestates. And
to sequester the estates of deceased persons. To allow and
reject accounts, with a proviso, if an executor appears after
administration is granted.
XXIV. Orders administrators to give security to the junior
justice, to the value of the estate, &c.
XXV. Empowers the Court to appoint registers, proctors,
&c.
XXVI. And guardians to infants, &c.
AND CHARTER. 43
XXVII. Makes the Supreme Court a court of admiralty,
with extent of jurisdiction as exercised in England, without
the strict formalities of law.
XXVIII. Extends its power in regard to crimes maritime,
to punish offenders, to deliver and discharge them, to arrest
ships, &c., to compel appearance under penalties, &c.
XXIX. Prescribes the form of affidavits and affirmations
in the admiralty court.
XXX. Reserves fines, &c., to the King, and grants satis-
faction to prosecutors out of fines set by the Court.
XXXI. Allows an appeal to the King in Council, from the
Supreme Court, in civil causes, by petition to that Court,
and requires security on such appeal, for costs, and for per-
formance of judgment ; the Supreme Court transmitting a
copy of all evidence on such appeal.
XXXII. In criminal suits, the Court is empowered to
allow or deny appeals.
XXXIII. Reserves the power to the King to refuse an
appeal, and directs the Court to execute the judgments and
orders of His Majesty. And restricts the allowance of ap-
peals to within six months of the presentation of the petition,
unless the matter shall exceed 1000 pagodas.
XXXIV. Provides against the arrest of the Governor
General and Councillors, Chief Justice, and other justices,
except for treason or felony, but allows the sequestration of
their estates.
XXXV. Establishes a court room, and orders the Chief
Justice and puisne justices to be sworn before they act.
XXXVI. Repeals the former charter of the 26th George
II., after publication of the Supreme Court. Orders the
judgments pronounced by the Mayor's Court to be in force,
and the proceedings depending therein not to be abated, but
transferred, and the records, &c., to be delivered over to the
Supreme Court.
XXXVII. Appoints four terms and sittings after term in
each year, the duration of terms and sittings, and two sessions
to be held in every year.
XXXVIII. Authorizes the Court to frame rules of practice,
&c., and to transmit them to the Privy Council for approval.
XXXIX. Strictly charges and commands all the King's
governors, commanders, magistrates, officers, and ministers,
civil and military, and all His Majesty’s liege subjects in
Bengal, Bahar, and Orissa, &c., that they be aiding, assisting,
and obedient in all things unto the said Supreme Court of
Judicature, in Bengal, as they shall answer the contrary at
their peril.
44 REGULATING ACT
If the reader will compare clause XIII., of the Regu-
lating Act, with clauses XIV. and XXI. of the charter
or letters patent, he will see that they differ inasmuch
as the two latter clauses extend the jurisdiction given
to the Court by the Act. By the words of the Act, the
Court was to be a court of record, and a court of oyer
and terminer, and of gaol delivery, in and for the town
of Calcutta, and factory of Fort William, and the limits
thereof, and the factories subordinate thereto. By these
words it should seem, that the jurisdiction was intended
to be confined to the Company's factories in Bengal,
except where the subsequent clauses specially enlarge the
jurisdiction. But by these subsequent clauses, the Court's
jurisdiction is widely extended,—first, over all the Bri-
tish subjects resident in Bengal, Bahar, and Orissa;
secondly, over all complaints against the King's sub-
jects in all the provinces, for any crimes, misdemeanors,
or oppressions; thirdly, over all suits or actions against
the same subjects; fourthly, over suits and actions
against the same persons, who, at the time the cause of
action arises, shall be directly or indirectly in the service
of the Company, or of any of the King's subjects; fifthly,
over suits and actions by any of the King's subjects,
against any inhabitants of India, residing in either of the
three provinces aforesaid, or any contract in writing,
where the cause of action shall exceed 500 current
rupees, and where by the contract it is agreed that in
case of dispute, the matter shall be determined in the
Supreme Court. And it is provided that these latter
suits shall be brought in the first instance before the
Supreme Court, and by appeal from any of the provin-
cial courts.
On the clause which makes the judges justices of the
peace and coroners, in Bengal, Bahar, and Orissa, with
such authority as the justices of the King's Bench in
England, it is to be observed, that this can only mean
the same jurisdiction and authority in the character of
coroners and conservators of the King's peace; and
here the charter or patent goes beyond the Act of
Parliament: for the Act confines the whole jurisdiction,
criminal as well as civil, to the Company's factories,
except in certain cases specially provided for ; but in
the charter, the justices of the Supreme Court, are
AND CHAIRTER. 45
made coroners, and justices, and conservators of the
King's peace in every part of the provinces of Bengal,
Bahar, and Orissa, indiscriminately, and without any
qualification or limitation.
In respect to the mode of proceedings in actions, I
would draw particular attention to the clauses in the
charter which relate to “appearance and pleading,” and
to the clause empowering the Court to issue writs of
execution for seizing effects. And, still more is it
necessary to give attention to the clause which makes it
unlawful to object to the locality of the Court’s jurisdiction
or to the juries, and which ordains that offenders shall
be tried, convicted, and punished as if their crimes had
been committed in Calcutta. Nor must attention be
denied to the particular words in clause XX. of the
charter, empowering the Court to reprieve and suspend
execution of any capital sentence, where it shall appear
in their judgment that there is a proper occasion for
mercy; evidently meaning thereby to imply, that, without
a proper occasion for mercy, the Court could not reprieve
or suspend execution of any capital sentence.
On the clauses XXI. and XXII. of the charter, which
relate to appeals to the King in council, I would point
out that, in civil causes, the appeal from the Supreme
Court is allowed only by petition to the Court itself;
and that, in criminal suits, the power of denying appeals
and of regulating the terms upon which such appeals shall
be allowed, is reserved to the King. Finally it must be
observed and borne in mind, that clause XXXV. of the
charter or patent, which repeals the former charter of the
26th George II., after the publication of the Supreme
Court, leaves untouched the power formerly given to the
Governor and Councillors to act as justices of the peace.
The Regulating Act itself, indeed, expressly reserves to
the new Governor General and Council power to act as
justices, giving like power to the judges of the Supreme
Court. This ambiguity, or this unreasonable co-existence
of judicial powers must be constantly borne in mind,
since it accounts for the different construction put upon
the Act of Parliament and upon the charter, during the
disputes between the Supreme Council and the Supreme
Court as to the extent of their respective jurisdictions.”
* See Statutes at large, 13th Geo. III., c. 63, sec. 13, vol. II.
46 REGULATING ACT
Even upon the most hurried perusal of the Regulating
Act and the charter, it will appear, as clear as the sun
at noonday, that the intention and command of the
British Government was, that English law should be used
in India, with English custom and procedure; and that
all classes of men were to be brought under the operation
of this law. It was not for the Supreme Court col-
lectively to alter or modify this law and practice, or to
disobey the command which they were sent out to
execute : much less was this competent to Sir Elijah
Impey singly and individually; for, though placed at the
head of the Supreme Court, he was only one out of four
members of it, and his rank—a mere matter of pre-
cedence and increase of salary—gave him no increase
of authority over the other judges. Mr. Macaulay
always speaks of my father as if he were everything and
the rest of the judges nothing—as if he were absolute
dictator, and his three respectable colleagues something
less than mere registering clerks. When the members
of the Supreme Court proceeded to India, they had
almost every thing to learn with respect to the habits,
customs, and prejudices of the natives, and the manner
in which they would be affected by the strict administra-
tion of English laws. This knowledge, which was wanting,
could be acquired only by time and experience in India.
Sir Elijah Impey may have discovered after he had been
resident for two or three years in Calcutta, that some of
our laws and some of our practice demanded extensive
modifications in order to be suited to the Hindu and
Mohammedan population; but he had no authority to
make any changes. He could only offer suggestions
to the home Government. And this he did; but, during
the whole of his residence in the East, that Government
was too much occupied by the riots at home, or too
much distracted by the contest in America, to attend to
any such suggestions, however urgently repeated. Yet
how inconsistent was this neglect; since the authoriza-
tion given by the charter itself to the Supreme Court, to
frame rules of practice, was made subject to the condition
that those rules should be approved by the Privy Council'
I discover from my father's correspondence while in
India, and from papers written by him after his return
to England, that he was far from being fully satisfied
AND CHARTER. 47
either with the constitution of the Supreme governing
Council, or with that of the Supreme Court of Judicature;
that he thought both in need of material alteration; and
that, unless the former were remodelled, and the latter
strengthened by authority from England, our Indian
Empire, at any great or sudden crisis, might be put
in jeopardy. On this last subject he wrote a luminous
paper which was deemed worthy of preservation by a
very able man, who had devoted much time and study to
the best means of governing India, and of securing alike
the well-being of the native population, and the British
power in that vast peninsula.”
Sir Elijah was not sent out to India to make a code,
but to administer, impartially and strictly, the English
laws as they then stood. I will not allow myself to
doubt that, with his natural perspicacity, his well-earned
reputation as a lawyer, his steady application to his pro-
fession—for he was not a barrister by mere name alone—
I cannot, I repeat, bring myself to believe otherwise than
that my father, after a few years residence in the East,
must have been better qualified for what Mr. Bentham
called “codification” than some gentlemen who have
since been employed upon that duty, with much emolu-
ment to themselves, but no visible profit to the com-
munity: but neither Sir Elijah Impey, nor any one of
his brother judges, was ever charged with such a task;
which had they been—though they might have modestly
declined the commission—yet most assuredly they were
not men ever to have declared that they were no lawyers,
as Mr. Macaulay blushed not to declare concerning
himself in the House of Commons, after his return from
the exercise of his functions as a law-reviser and codifier
in Calcutta
Far be it from me to vilify the labours of those great
men, who, with better pretensions, have succeeded in re-
forming the errors or in mitigating the asperities of
British jurisprudence; yet it is but just to estimate
lawyers, as we do other men, by the standard of the times
* See among the Hargrave MSS. in the British Museum, a MS. book
in quarto, entitled, “A Plan for Bengal,” 333, PL. CLVI. B. 12. This
plan is discussed under six several questions, the last of which is headed,
“How and by what Courts shall Justice be administered?” And the
compiler (Mr. Lind) states in a note, p. 90, “This plan contains the out-
lines of the heads of the bill, by Sir Elijah Impey.”
48 REGULATING A ("I'
in which they lived : no man, and especially no lawyer,
can practically advance beyond the rules and usages of
his own generation. “I am not,” said my father, in
one of his numerous letters to Lord Weymouth, “I am
not gifted with intuition.” Let it, then, ever be borne in
mind, that, in Sir Elijah's day, the spirit which has ani-
mated our eminent law-reformers lay dormant. The
English community at large, and the great body of our
statesmen, politicians, and writers, seemed to think not
only that our laws were good, but that they could
scarcely be improved. Only a few years before my
father's departure for India, Blackstone had published
his popular and captivating book of “Commentaries on
the Laws of England,” and his optimism became an all-
prevailing feeling, more and more closing the eyes and
hearts of men to the necessity of any change. Whatever
novelties were then introduced in our criminal code, were
not, it must be allowed, on the side of mercy to the
criminal. Perhaps there never was a time when a belief
in the efficacy of capital punishments was more uni-
versal than during the first thirty years of the reign of
George III.
We are now startled at reading the calendars, and
the dreadful lists of executions, often amounting, at the
Old Bailey, to twelve or fifteen, or even more, at a time;
but if we refer to the newspapers, monthly magazines,
and Annual Registers of the period, there is nothing to
denote any doubt as to the wholesome repressing effects
of these periodical slaughters.
The writers of the day occasionally make some com-
mon-place remarks about the awfulness of the scene,
but they never hint that the criminals did not deserve
that extreme punishment, or that that extreme punish-
ment was failing to produce the contemplated diminu-
tion of crime. The ideas that began to be so ably and
energetically expressed by Sir Samuel Romilly in 1809
and 1810, had no place either in the hearts of the
English people, or in the heads of those who governed
them, thirty-five years before. The law in cases of
forgery was administered with unvarying and unmiti-
gated severity; that crime, in particular, was considered
of all “the most dangerous in a commercial country,” +
* See Parliamentary Reports. + Boswell's Life of Johnson,
AND CHARTER. 49
and to be checked only by the gallows. No interces-
sion, no consideration of his holy calling, not the pen of
Johnson himself, could procure from George III., either
pardon, respite, or commutation of punishment for
Dr. Dodd. He was hanged, accordingly, on the 27th of
June, 1777, just two years, one month, and eight days
after the execution at Calcutta, for forgery, of the Rajah
Nuncomar; who, according to Mr. Macaulay, was most
foully murdered by Sir Elijah Impey.
The offence of forgery, which is certainly of dangerous
import in all communities, and which goes to the anni-
hilation of trust, credit, and security in commercial ones,
had, unhappily, been very prevalent among the natives
of Bengal, Bahar, and Orissa; and since the foundation
of our empire by the great Clive, various efforts had
been made to check it. The Charter of George II., had
declared the law of England, civil and criminal, to be
the law of Calcutta, and before that Charter passed,
forgery had become a capital crime in England. As far
back as 1764, a Hindu of rank, like Nuncomar, had
been condemned to death for forgery; and, though he
had received the King's pardon, other natives had been
hanged, for the same crime, years before the execution
of the Rajah Nuncomar.”
These punishments might doubtless be considered
as excessive, as they were then unusual; but it
does not appear, that they excited any great emotion
among the native population, or that either Hindus or
Mohammedans doubted that the severest measures must
be taken, in order to defend their respective property
from the far-spreading effects of such offences.
In the rude state of society in which the Koran was
composed, forgery was a transgression which could
scarcely have entered into the contemplation of the
Arabian camel-driver; but muftis and oulemas, the
expounders alike of Mohammedan religion and Mo-
hammedan law, in their commentaries and glosses,
written at a later period, and in a different state of
society, had found their attention called to the subject,
and had drawn up very severe laws against falsifyers of
deeds, as well as against clippers of coin. In the sum-
* Examination of Mr. Barwell, on Hastings's trial. Mr. Barwell deposed
that he had himself presided in the Court which had condemned these men.
IE
50 REGULATING ACT
mary proceedings of Persian and Turkish jurisprudence,
it had long been usual to cut off the head of a man
convicted of such falsification, or to sentence him to
torments more dreadful than death; nor was the custom
of strangulation, either by the bow-string, or hanging
by the neck, less customary, or more abhorrent to the
Asiatic than to the European, from the days of Haman
the Syrian, down to the Hindu Nuncomar.”
The Mohammedan conquerors of India, knew no
other law than that of their Koran, and their oulemas;
and with very slight, and often merely accidental modi-
fications, this law was administered in Hindustan, much
in the same manner as in Persia or in Turkey; the na-
tive courts being in India, as in those two countries,
notoriously partial, and infamously corrupt.
We have seen in clause XIX. of the Charter, that for-
geries are especially named among the offences with re-
lation to which, the Supreme Court, of which Sir Elijah
was the president, were ordered to administer criminal
justice, according to the law and practice of England;
or, as in our own courts of oyer and terminer. Nothing
was distinctly left to the discretion of the judges; the
mention of “the condition and circumstances of the
place and the persons,” having no apparent meaning,
and the charter making the English law enclose within
its ample compass, natives as well as Europeans.
It so chanced, that the very first criminal case which
came before the Supreme Court, was that of Nuncomar;
and the Rajah being convicted of forgery, was, of
course, condemned and executed, according both to
the spirit and the letter of our law. The Court could
not have acted otherwise than it did, without flying in
the face of the Government which had appointed it, and
in the face of the law which it professed, and which it
was created and purposely appointed to administer.
But the particulars of the case will be gradually de-
veloped, and fully explained, in a future chapter.
I need not here say more about the Act and Charter;
I trust that their spirit and intention, with respect to the
* See “Halhed's Translation of the Code of Gentoo Laws.” I have to
add, that, in this view of the subject, I am amply borne out by the testi-
mony, as well by the present learned Oriental Professor in the University
to which I myself belong, as by all other authorities which I have had the
honour to consult.
AND CHARTER, 51
Supreme Court, will be clearly understood by any one
that will attentively peruse the present chapter. I have
here given the clauses of the Regulating Act, which are
applicable to the Court over which my father presided,
and all the clauses of the Charter, which Charter wholely
and solely regards that Supreme Court. The reader who
will follow me in the investigations I have undertaken,
may refer back to the Charter, and to the clauses of the
Act whenever they are named. The justification of my
father will be best established by this reference to the
authorities under which he acted, and to the spirit of the
law which he was bound to execute. In all public
matters, I wish it to rest upon no other basis.
With all his colleagues in the Supreme Court, Sir
Elijah lived in constant harmony and good-fellowship;
notwithstanding many perplexing occurrences which
took place in India, and the numerous disputes which
arose touching the authority of the Court, and its proce-
dure. The three puisne judges, Chambers, Hyde, and
Lemaistre, were all men well known, and honourably
distinguished in their profession; and all of them re-
tained their respect and friendship for Sir Elijah Impey
until death. His successor, Mr. Justice Chambers—
afterwards Sir Robert—had been the intimate friend
of Dr. Samuel Johnson, whose esteem, in itself, was an
honourable distinction to any man. And of all the
judges, Chambers was the most constant associate of my
father in India; their occasional, but rare difference in
opinion, never creating a moments coolness between
them.* A good many records of Chambers's estimable
qualities, are found in “Boswell's Life of Johnson.”
When he obtained his Indian judgeship, Johnson, who
was well acquainted with Mr. Hastings, gave Chambers
a warm letter of introduction to that great man. The
place in Johnson's affection, left vacant by the departure
of Chambers, was occupied by the late Lord Stowell.
Of Hyde and Lemaistre, the most honourable testi-
mony is borne, by a very learned and competent witness,
who was the common friend, and early companion, of
all the four Justices of the Supreme Court nominated
under the Regulating Act and Charter.f.
* See Mr. Croker's Note to his edition of “Boswell's Life of Johnson.”
i See “Nicholls's Recollections.”
E 2
52 MEMBERS OF COUNCIL
Of the colleagues of Mr. Philip Francis, in the new
Supreme Council, I need say nothing. Their characters
and conduct will be developed in the course of my nar-
rative, and I shall venture on no comment upon them,
without strict truth, and safe evidence, to support my
assertions. In general, I believe them to have been men
of honour but of no very distinguished ability; and,
that they were carried into evil extremes, solely by the
factious spirit of their leader, Mr. Francis.
The same ship carried out the Judges of the Supreme
Court, and the new Members of the Supreme Council;
Mr. Barwell was already in India when he obtained
his appointment. -
Mr. Hastings received my father as an old friend and
schoolfellow. They had been bosom friends in boy-
hood; and neither the different nature of their pursuits
and struggles in manhood, nor their long separation,
had estranged them from each other; they had cor-
responded frequently, and during Mr. Hastings's visit
to his native country, in the years 1764-5-6,” they
had met again, and renewed many a joyous recollection
of their Westminster days.
The Governor General knew the Chief Justice too
well to expect from him anything like subserviency, or
connivance in wrong-doing ; but, most assuredly, he
might be delighted nevertheless at the appointment, and
receive his old friend with a hearty welcome. And there
is good evidence to prove that he did so.-f
His reception of the Members of the Supreme Council,
though conciliatory, could scarcely be expected to be
quite so cordial. They had come to divide, cut down,
or split the authority of the Governor General, and to
*Obituary for September, 1818.
t See Warren Hastings's own letters, in his Memoirs, by the Rev.
G. R. Gleig.
“On learning Sir Elijah's appointment to preside over the Supreme
Court, Mr. Hastings had written to him to express his entire satisfaction,
‘which,’ he said, was “without a circumstance of regret to alloy it.” “In
truth, my friend,’ he continued, “nothing else could have reconciled me
to that part of the Act, which, if any latitude is left to you in its first
establishment, may, and I am sure will, be made a source of the most
valuable benefits to this country.” We here see not only the satisfaction
of the Governor General at the appointment of his friend, but also his
dissatisfaction at part of the Regulating Act, together with a very evident
doubt whether the Supreme Court, as constituted by that Act, could work
well at Calcutta.”
A N D SUPREME COURT. 53
dispute with him on all points of Indian administration.
The love of power is a natural passion, strongly implanted
in the hearts of all statesmen like Mr. Hastings: The had
passed his life in the country, knew well the native
languages, and had signalized himself by many
splendid achievements.
With the exception of Mr. Barwell, an old servant of
the Company, and long resident in India,” the Mem-
bers of the Supreme Council, which Lord North’s
government had been pleased to appoint, knew, prac-
tically, nothing of India; nothing of its idioms, nothing
of its policy. They had everything to learn,-and some
of them never learned anything, yet they came with a
fixed pre-determination of overturning nearly all that
Hastings had done. It may be questioned whether
any mortal man, situated as the Governor General was,
could have been pleased at their arrival. But I know
too much of Mr. Hastings's unvarying urbanity, and
courteous bearing, to allow me to believe that he
received them otherwise than with perfect politeness.
It took years of Mr. Francis's coarseness and malignity
to shake the equilibrium of the Governor General’s
mind, or to drive him to any degree of irritability, or
ill-temper. Mr. Macaulay, who loves to put everything
pointedly and dramatically, and who seldom objects to
a loud report or striking effect, says, that the Members
of Council expected a salute of twenty-one guns from the
batteries of Fort William, that the Governor General
allowed them only seventeen, and that this trifle was
sufficient to give occasion for dispute.
I have been assured that there was no difference
about this matter, and that the salute was loud enough
and long enough to satisfy all parties. But could not
the historical and political reading of Mr. Macaulay,
suggest to his hurried and overtaxed memory, the simple
and notorious fact, that these three Members of Council
had come out primed and prompted by Lord North to
oppose Hastings 2 And was not this fact sufficient to
explain the cold reserve of the first civilities on the
* It may be noted even here, that Mr. Barwell, who knew so much of
India, as constantly supported Mr. Hastings as Mr. Francis, General
Clavering, and Colonel Monson, who knew so little of it, opposed him.
Mr. Barwell was also the constant friend of Sir Elijah Impey.
54 M EMIBERS O ſº COUNCI I,
day of the arrival, and on the morrow the commence-
ment of “that long quarrel, which, after distracting
British India, was renewed in England, and in which
all the most eminent statesmen and orators of the age,
took active part on one or the other side '''“
In the apprehension of sober-minded readers, Mr.
Macaulay's language is often too strong and inflated for
his subject; but the term “distracting,” as here used,
is not excessive, but strictly applicable to the state of
the case. India was not only distracted, but well nigh
lost, through the war waged at the Council-board, by
Mr. Francis, General Clavering, and Colonel Monson.
The differences which had previously arisen between
Lord North’s administration, and that of Mr. Hastings,
were neither few nor unimportant. There seems, indeed,
to have been at no time a good understanding between
these parties. Mr. Hastings, though professing a great
regard for Lord North’s private character, always com-
plained of him as a statesman, attributing to his indo-
lence and indifference, not only much personal suffering
and disquietude, but also many public evils in India.
With the exception of Mr. Barwell, who, as an experi-
enced servant of their own, was admitted to conciliate
the Company, the Members of the Council owed their
appointments entirely to the patronage of ministers.
These appointments did not go free from the cavils and
criticism of the day. Men not only wondered at the
sudden and great rise of Mr. Francis, but also questioned
the propriety of the ministerial patronage in the case of
General Clavering and Colonel Monson, who were to
be three out of a Council of five, to govern a country
which they knew nothing about ; thus out-numbering
the two who knew everything.
But even without taking into account the existing
differences of the administration of Lord North and the
Governor General, or the ministerial prompting and
priming which the majority had received, there was
quite enough to lead to dissensions and violent quarrels
in the Council-room at Calcutta. The Regulating Act
itself, was one great apple of discord; for it divided a
governing authority into parts, without defining or
limiting the separate portions. And then there was
* See “Mr. Macaulay's Critical and Iłistorical Essays.”
AND SUPREME COURT, 55
the dark and hateful temper of Francis, who, from first
to last, led Clavering and Monson by the sleeve, preci-
pitating them into the gulf of his own quarrels, whether
private or public, with Hastings, working upon their
passions with all his ingenious art of persuasion, and
closing their ears to every conciliatory word uttered by
the Governor General.
It was on the 19th of October, 1774, that the Mem-
bers of Council and the Judges landed at our settlement
in Bengal.
I cannot affirm that the feud began on the very day
after the arrival of the three Members of Council; but
there is now most abundant evidence—printed and
published to the world—to show that it broke out very
soon after their landing; and with this published
evidence, that of letters and family papers in my posses-
sion, completely agrees.
C H A P T E R III.
ARRIVAL IN INDIA—THE CHIEF JUSTICE: HIS ARRANGE-
MENTS, STUDIES, CORRESPONDENCE–DISSENSIONS IN
COUNCIL–CONDUCT OF THE GOVERNOR GENERAL; OF
THE MAJORITY; OF THE JUDGES, ETC.
ON their arrival at Calcutta, Sir Elijah Impey and his
brother judges, without loss of time, proceeded to open
the King's commission, and to organize and establish
the Supreme Court. This was no trifling labour: the
institution was new, and everything had to be either
republished or begun; proper officers to be selected and
appointed; rules applicable to the locality to be laid
down; the records of the old Mayor's Court to be
received, authenticated, registered, and put in order;
and the processes pendent or dormant in that court to be
prepared for trial and decision. This Mayor's Court,
as well as the adauluts, or native revenue courts, had
been managed in a way very perplexing to lawyers;
for no regularly trained English barrister had ever
practised in them, or been concerned in their formation,
or in drawing up the rules of procedure. Mr. Hastings,
in re-organizing these courts, had said to a friend some
years before, that he, and the servants of the Company
at Calcutta, were making laws at a great rate without
having a single lawyer among them.* This law-
making was no doubt very ingenious, for Mr. Hast-
ings did nearly all of it himself, and whatever he
did bore the stamp of ability; but it will readily be
* Rev. G. R. Gleig; Memoirs of Warren Hastings.
ARRIVAL IN INDIA. 57
conceived, that laws, so framed by laymen would not
quite satisfy professional men, or suit a bench of judges
who were strictly bound to proceed according to the
law of England. The proceedings of the Mayor's
Court were of course suspended by the formation of the
Supreme Court; but it was necessary for the new judges
to know what their nature and tendency had been
before; what decisions had been given under them, and
in what state the different processes in that Court lay
at the time of the new establishment of the new Supreme
Court of Judicature.
As early as the 25th of March 1775, Sir Elijah wrote
to Lord Rochford, the Secretary of State for the South-
ern Department, as it was then called, to report the pro-
gress which had been made. He enclosed to his
Lordship “a certificate under the hand and seal of the
Chief Justice, and Justices of the Supreme Court, of
the full and true account of the several offices and
places, and officers and clerks, and of their salaries
severally and respectively; and a true copy of the table
of fees settled by the said Court, together with the
approbation of the Governor General and Council.
He likewise enclosed under the seal of the Court, all
such rules and orders as had been framed by the
Court, for the due administration of justice,” praying
his Lordship “to transmit the same to his Majesty in
his Privy Council, for his approbation, controul, or
alteration,”
The King in Council approved of the rules, and of
all that had been done by the judges.
Notwithstanding these arduous labours, and other
occupations and anxieties arising out of the conflict of
authorities in the Supreme Council, my father began to
study the Persian, which is the language of business,
and the Bengalee, or vernacular of the country. For
he saw, and had known beforehand, that Persian was the
language of law and diplomacy, that all documents were
written in that language, and that all official correspond-
ence was carried on in it. The proceedings of the
Supreme Court were to be in English, with the aid—
where natives were concerned—of sworn interpreters.
* From MS. Letters in my possession, and from the printed Reports of
Parliamentary Committees.
58 DISSENSIONS IN COUNCIL.
But he would not trust entirely to these hired dragomans
and monshees, as so many men in office had done, and
were continuing to do; he felt that a knowledge of the
languages used in writing or in speaking by the natives,
would become a judge who had to administer the law
to them, and that such knowledge was indispensable to
one who would obtain a proper insight into their cha-
racters, and their habits of thought and action.
He had always had a love for philological studies, and
a natural facility in acquiring various dialects. He
therefore set earnestly to work, with books and a Per-
sian master, in the midst of his laborious judicial occu-
pations, and a very sickly season; * while his mind was
incessantly harassed by the dissensions in the Govern-
ment-house. Men are apt to put off a difficult study,
in the fanciful hope of obtaining, at some future day, a
perfect tranquility and composure of mind. If my
father had trusted to that fallacious hope, he could
never, during his residence in India, have mastered a
difficult and delicate oriental tongue.
Soon after his arrival he wrote to his brother, Michael
Impey, “I am labouring hard at the Persian language,
and therefore hope you will not neglect sending me
Richardson's Dictionary.”f. In another letter, written
to his brother about this time, he speaks cheerfully
enough of his heavy official toils, but in a melancholy
tone of the dissensions which were raging at the Council-
board. “The disputes here,” he says, “have so far
involved me, that they make my despatches, by every
ship, very voluminous. I do not trouble you with a
recital of the matters in contest, but I send to Mr. Elliot
a copy of all my public letters, that he may make use
of them among my friends; and, as I am obliged to
send duplicates, these are as much as I can procure to
be copied.” f He continued his studies in spite of the
* “This season hath been the most fatal that hath been experienced in
Bengal for some years.” General Clavering, one of the Members of the
Supreme Council, had had a severe attack.-Letter to Michael Impey, Esq.
in Family Letters.
+ Family Letters.
f MS. Family Letters. In this particular letter, which was evidently
written at a time of great agitation and anxiety, and in the midst of a chaos
of business, there is a good deal about his children left in England. IIe asks
his brother whether he makes them talk of him —Whether one of them
has duly celebrated his birth-day ?—Whether he had shown to another
CON DUCT OF THE M A J ORITY. 59
political whirlwind, and made himself a very accom-
plished Persian scholar. The Bengalee he soon spoke
fluently.
It was impossible that he should long remain un-
involved in the disputes of the Council-board. Many
of these differences of opinion arose about the Supreme
Court itself. In other disputes, each party claimed to
have the law on its own side, and made application to
the judges. The Court could not entirely agree with
the one party or the other; and therefore it was alter-
nately exposed to the animosities of both. But there
was nothing in these disputes that regarded my father
personally or distinctly from his brethren. The quarrels
were with the Court not with Sir Elijah Impey;
Justices Chambers, Hyde, and Lemaistre, were just as
much implicated as the Chief Justice. The judges were
unanimous, and quite ready to take in common whatever
praise or blame might be meted out to them, and in all
measures where they agreed, they were, of course,
equally responsible. It was in personal matters—and
more especially in one that affected the character and
the purse of Mr. Francis—that my father drew down
upon his head that implacable hatred which operated
singly upon him, and which was the proximate cause of
so many years of trouble, and of the persevering defama-
tion, which, as it would seem, has not ceased within
fifty-eight years after his triumphant defence in the
House of Commons.
I can but slightly sketch the war which raged in the
Council-chamber at Calcutta; and, in the execution of
my filial task, I am only so far concerned with it, as it
involved my father.
The indiscretion and rashness of pre-determined and
ill-informed innovators and reformers are proverbial;
and, when to this madness is superadded a ravenous
appetite for patronage and power, with a favourable
chance of gratifying that appetite, there are few extremi-
ties that may not be apprehended. The three Mem-
bers of Council deputed by the English Government,
his Cambridge medal, in order to stimulate him to a love of learning 2
He implores his brother to love them all for his sake; and he sends the
most heart-warm thanks to some friends who had shown kindness to
them. But similar passages occur in all his private letters, no matter
What the state of his mind, or affairs at Calcutta.
60 CHA RACTER OF THE M A JORITY.
had gone out to India as innovators or reformers;
Lord North's administration had stamped them with
that character, and Mr. Francis, the only man of emi-
nent ability among them, was alike hungry for power,
and resolute for change. From the moment of his
coming he took the reins. His influence over the
minds of his two colleagues was unbounded,—they saw
with his eyes, spoke with his tongue, and acted with his
hand.
General Clavering I believe to have been a conscien-
tious, honourable, high-minded English soldier; but he
was deplorably ignorant of business; his mind, as well
as his body was weakened by the climate, and he soon
became fretful from disease, and passionate and impa-
tient of contradiction. The first sickly season in Bengal
appears to have destroyed the better part of him. At
an early period Sir Elijah says, “General Clavering's
severe illness has totally shattered his constitution, and
precipitated him into old age ; his body is emaciated,
his strength exhausted, and his spirits sunk. The
violence of his disorder, has, in some measure, expended
itself; but he is far from recovering, and the effects of
it must, I apprehend, prove fatal at no great distance of
time.” ” I should scarcely feel disposed to hold General
Clavering responsible for what was done, or attempted,
during his short tenure of office in India.
Of Colonel Monson, I cannot speak quite so gently.
He was in good health, and in possession of such facul-
ties as nature had given him, and he had been capable
of improving. From all evidence, Monson stands out
prominently as a proud, rash, self-willed man; though
easily misled, and very greedy for patronage and power,
if not for money. Francis seems to have ruled him, by
making him believe that he was ruled by him. It has
been said, and, as I believe, with perfect truth, that the
temper of Francis alone, was enough to introduce dis-
cord into a paradise.
Mr. Barwell, the fourth Member of Council, and
the only one of the four who had resided in India,
or practically knew anything of Indian affairs, was,
a man of very distinguished ability, great firmness
of mind, and of indefatigable application to business.
* Letter to Michael Impey, in Family MS. Letters.
CONDUCT OF THE MAJORITY. 61
I believe that, in the various difficult and delicate situa-
tions where he had been placed, he had acted conscien-
tiously and honourably. He was certainly no “tool” to
the Governor General. He had frequently disagreed
with Mr. Hastings on questions of government, and,
unless convinced by discussion, he had manfully sup-
ported his own opinions. But, when Mr. Barwell saw
that rash opinions were insolently urged by men new
in the country, and that one of these men, by misleading
and hoodwinking the other two, was aiming at nothing
less than a power supreme in this new Council, he took
his stand by the side of Hastings, and never quitted it.
Mr. Macaulay, who is on the whole favourably dis-
posed towards the Governor General, and who gives a
not unfair account of these quarrels, says, correctly, that
“ the arrival of the new Members of Council from
England, naturally had the effect of uniting the old
servants of the Company.” It could not be otherwise :
in many respects it was a contest between inexperience
and ignorance on the one side, and experience and
knowledge on the other.
But then came the monstrous pretensions of the new
Members of Council from England, to revise all the
late treaties and acts of Mr. Hastings's government;
to make an entire change in the civil appointments,
both up the country, and at Calcutta; and to mono-
polise the entire patronage of Government.
On the 20th of October, 1774, being the day after
the arrival of the new Council and the Judges, the
existing government was dissolved by proclamation,
and the new Council, consisting of the four gentlemen
named, and Mr. Hastings, with the new rank of
Governor General, took possession of its powers. As
the authority at home was still divided, attention was
paid not only to the Regulating Act, and the Charter
or letters patent of the King in Council, but also to the
injunctions of the Court of Directors in Leadenhall
Street. The general letter of the Court of Directors,
which was read at the first meeting of the new Council
at Calcutta, recommended, above all things, unanimity
and concord among those to whom the powers of the
Government were now delegated; it required them to
do all in their power to preserve peace in India; it
62 GOVERNMENT OF HASTINGS.
required them to meet in council twice every week at
least; it committed to Hastings, as Governor General,
the charge of carrying on all correspondence with the
country powers; but, at the same time, it prescribed
that he should despatch no letters without the previous
sanction of the Council : and that all letters received by
him from the country powers should be submitted to the
Council; it recommended a careful revision of all the
Company's affairs, alliances, connections, &c., formed,
or likely to be formed with the Indian states; and as,
by the Act of Parliament, they alone had the power of
peace or war in the country, it exhorted them to be
careful and cautious in the extreme, not to commit
themselves by any alliances or compacts, whether with
the native powers, or with the Europeans settled in
India.
As the Company had fully approved of Hastings's
system, which had then only recently been completed,
of letting the lands on farm, and of other parts of his
fiscal regulations, the Council were instructed to leave
those things as they were ; but the Directors, neverthe-
less, urged an inquiry into all past abuses and oppressions,
with the view of preventing the possibility of their re-
currence. The letter finished as it began, with an
exhortation to unanimity and concord. But unanimity
was incompatible with a body so constituted, and with
tempers, interests, and views so diametrically opposed.
The earnestness and repetition of the injunction, may be
taken as indicative of the belief of the Court of Directors,
that discord was to ensue.
Mr. Hastings, conscious of his own superior know-
ledge of Indian affairs, and accustomed, for some time,
to an almost undivided authority, was not likely to
descend very willingly from the whole, to be only a
fifth part of the representative government, or to mani-
fest an implicit deference to the opinions of men who
had passed their lives in so different a sphere as Francis,
Clavering, and Monson had done. Besides, the natural
love of power, the intimate and unselfish conviction,
that such a system of government as he had hitherto
been pursuing, was the only one that could work well
with the native princes, who had no idea of a divided
rule, led Mr. Hastings to act upon the recommendation,
CONDUCT OF THE MAJORITY. 63
and after the example of Lord Clive, and in his political
negociations at least, to assume a high, and almost single
authority.
In conformity with this plan of action, he had, of his
own accord, appointed his friend Middleton to be resi-
dent and agent at the court of Sujah Dowla, the Nabob
of Oude, with instructions, on all secret and important
matters, to correspond with himself alone, without com-
municating to the Council at Calcutta, who did not
invariably preserve the secrecy considered necessary
to the success of his diplomatic schemes. Mr. Mid-
dleton was at Lucmow, with our close ally, the Nabob,
when the Members of the new Council arrived at
Calcutta.
This was the very first point to which Francis,
Clavering, and Monson directed their attack. They
demanded that the whole of Middleton's correspondence,
from his first appointment, should be laid before them.
Hastings very reasonably refused to produce more than
a part of it, alleging that the other portions had reference
merely to private matters and opinions; and, hereupon,
they began to assert, by implication, that he had
embarked in an unnecessary and unjustifiable war,
the war with the Rohillas, in waging which, the
English were allied with the Nabob of Oude,-for
private and sordid motives, as they assumed ; and that
his whole connection with Sujah Dowla, had been a
series of bad actions, fraud, and selfishness.
The Governor General, who ultimately returned to
England with a very limited fortune, was, at the com-
mencement of these charges, a poor, if not an embar-
rassed man. Power he loved as a possession con-
genial to his nature, and as a habit which had made
it doubly natural to him to possess; but to money
he was both habitually and constitutionally indif-
ferent. Not so was Mr. Francis, who led the attack,
and spread the reports of the Governor General's
avarice and corruption. But I must not anticipate
that part of my subject.
As Francis, Clavering, and Monson, constituted the
majority of the Council, they assumed all the powers of
government; reducing, for a time, Hastings, with his
adherent Barwell, to the condition of a cypher. “We
64 DISSENSIONS IN COUNCIL.
three,” said Francis, “are king !” And, in the pride
of his heart, he made such frequent use of this ex-
pression, that other men in Calcutta gave him, in
derision, the nick-name of “ King Francis,” or “Francis
the First.” The kingly trio persevered in their reso-
lution of undoing all that Hastings had done, and of
beginning every thing anew.
By this means, the government, of course, was soon
turned into an anarchy. They voted the immediate
recall of Middleton from Oude, although Hastings
declared that such a measure would be attended with
the very worst consequences, as proclaiming to the
natives, that the English authorities were no longer
agreed among themselves, and that the government of
Calcutta was falling into a state of revolution. The
Nabob Sujah Dowla, who had always looked to
Hastings, and to none other, was utterly confounded ;
and, when Middleton showed him his letter of recall,
he burst into tears, regarding it as the beginning of
hostilities intended against himself.
At every meeting of the Council, some fresh differ-
ence arose; and Hastings began to complain bitterly
of the precipitate violence of the majority.
At the beginning of December, before the new
Members of Council had been six weeks in the country,
he wrote thus to Lord North :—
“The public despatches will inform you of the division which
prevails in our councils. I do not mean, in this letter, to
enter into a detail of its rise and progress, but will beg leave
to refer to those despatches for the particulars, and for the
defence both of my measures and opinions. I shall here only
assure your Lordship, that this unhappy difference did not
spring from me; and that, had General Clavering, Mr. Monson,
and Mr. Francis, brought with them the same conciliatory
spirit which I had adopted, your Lordship would not have
been embarrassed with the appeals of a disjointed administra-
tion, nor the public business here retarded by discordant
councils.” +
Nor had Sir Elijah Impey been many months in the
country, ere he found himself obliged, in like manner,
to complain to Mr. Thurlow, and other friends in
England, of the pride and insolence of the three Coun-
* Rev. G. R. Gleig. “Memoirs of Warren Hastings.”
CONDUCT OF THE MAJORITY. 65
cillors, and of certain underhand proceedings they were
adopting in his regard :—
“I shall always,” he said, “think myself strictly responsible
for my own conduct. I do most solemnly assure you, that I
have, to the best of my abilities, assisted public business in
every instance ; though these gentlemen complain of the
Court's giving opposition to government. The hauteur,
insolence, and superior airs of authority, which the new
Members of the Council use to the Court, may be partly dis-
cernable in the style of their minutes; but, on the spot, they
maintain no colour of decency. My conduct to them has been
absolutely the reverse; and I believe they are the more angry
with me for it. I must beseech you not to let popular preju-
dices (if their letters and minutes have created any), prevent
your attending coolly to the subject; and, I do assure you, that
one great line in my conduct has been, to consider how I
thought you would have acted were you in my situation; and
whatever may be the opinion of others, it will be a full satis-
faction to me, if I meet with your approbation. It is to
Government I hold myself answerable, and to whom I look up
for protection.” +
Alas! my father's confidence in the protection of the
Government he served, proved, from beginning to end,
little better than a mere delusion.
The majority continued to declare the Rohilla war to
be monstrous; and the dispossessed, tyrannical, treach-
erous, and cruel Afghan tribe, bearing the name of
Rohillas, to be a brave, but meek and inoffensive
people, who had strong claims on the sympathy of
generous minds !“F
Even at this distance of time, Mr. Macaulay throws
all his sympathy into some of his neatest, and most
* Letter to Thurlow, from the MSS. in my possession.
f Arrian, who wrote his account of India in the reign of the Emperor
Adrian, from the materials compiled by Megasthenes, the physician of
Seleucus, speaks of two tribes inhabiting the same range of mountains,
but one considered inferior to the other. These mountains were traversed
by Alexander, who penetrated no farther south than the Punjaub ; then
sailing down one of the five tributary rivers (perhaps the Sutlej) into the
Indus, returned to Babylon. It is agreed by modern travellers, that
those are the same mountains which to this day are distinguished as the
habitation of two separate tribes of the same descent, one still considered
inferior to the other—the former Afghans, the latter Rohillas. In what-
ever else they may have differed, it may be presumed their morality was,
and is, much the same. See the first 17 chapters of Arrian, in Dean
Vincent's Voyage of Nearchus. Oxford, 4to. p. 15, et sequent.
F
66 T) ISSENSIONS IN COUNCIT,
emphatical little periods. In speaking of the engage-
ment which—upon weighty considerations, and upon
payment of money, which the Company much needed,
and for which it had incessantly been calling upon the
Governor—Mr. Hastings contracted with Sujah Dowla,
to put that Nabob in possession of the country which
these Rohillas had conquered and overrun not many
years before, he says, “The fate of a brave people was
to be decided. It was decided in a manner which has
left a lasting stain on the fame of Hastings and of
England.” Now, even in the midst of the rage for
impeachment, the House of Commons itself failed to
make good the Rohilla charge against Mr. Hastings.
The revival of it certainly comes with peculiar grace
from a member of the cabinet which authorised the late
invasion of Afghanistan. After imprinting that stain
upon reputation, with which he seems to love to con-
taminate his own hands, Mr. Macaulay proceeds to
make a kind of “happy valley” of the country where
these Afghan tribes were most barbarously oppressing
the Hindu people, and constantly waging wars and
blood-feuds with one another. The picture is pretty
as words and antithesis can make it; it is nothing,
however, but a very ingenious fancy-piece, totally
divested of the charm of truth.
The Rohillas were then, what their congeners, the
Afghans, now are, and always have been, turbulent
and deceitful, dangerous and vindictive neighbours,
plunderers, usurpers, and marauders. If Mr. Macaulay
had spoken of the sufferings of the poor Hindus, living
under the contiguous rule of the unmerciful spear and
yataghan, and as utterly defenceless in themselves, he
might, indeed, have awakened a just cause for com-
miseration ; but he, as well as Mr. Francis, and all the
parliamentary orators at home, leaves these poor people
altogether out of the question about Rohilcund; pitying
the oppressors instead of the oppressed.
In 1774, the Rohillas certainly were brave and
powerful ; they fought far more resolutely in open
field of battle, than any foe with whom the English had
hitherto contended in Hindustan; but this bravery and
power, only rendered it the more necessary to dislodge
them from the advanced and central position which they
CONDUCT OF THE MAJORITY. 67
occupied ; and which, so long as they held it, might serve
as an enticement to new invasions of our frontier. The
craft and treachery were exceeded only by the blood-
thirstiness of these invaders; but, according to Francis,
though the war was to be reprobated, and the conquered
Rohillas spared; though Colonel Champion and his
brigade were to be instantly ordered to evacuate,
leaving the fierce clans an opportunity of renewing
the contest with the unwarlike Sujah Dowla single-
handed ; yet both the calculated expenses of the war,
and the actual spoils of the conquest, were to be poured
into the Company's treasury; and the Nabob forced
to pay, to the last rupee, what he had promised, and
threatened and intimidated into earlier disbursements
than he had bargained for.
In vain did Mr. Hastings and Mr. Barwell remon-
strate and protest; they were but two to three, and the
determinations of Mr. Francis and his colleagues were
carried into execution instantly. Champion and his
brigade were recalled, and the money demanded from
Sujah Dowla with something very like the elo-
quence and action of highwaymen, who hold out one
hand for the purse, and point a pistol at the heart with
the other | This treatment is believed to have hastened
the death of Sujah Dowla.
This allusion to the Rohilla charge against Mr.
Hastings, may perhaps appear irrelevant to the object
of my present investigation; but it is necessary to the
continuity of my narrative, and will be found not inap-
plicable to the perverted view which Mr. Macaulay
takes hereafter of Sir Elijah Impey's conduct, relative
to the oppression of the Hindu ryots, by the revenue
collectors, in 1778-9.
“I had not thought to have unlocked my lips,
In this unhallowed air, but, that this juggler
Would think to charm my judgment and my eyes,—
Obtruding false rules, prankt in reason's garb:
I hate when vice can bolt her arguments,
And virtue hath no tongue to check her pride.”
The Nabob-Vizier, Sujah Dowla, died a few months
after the arrival of the new Members of Council, at
the very beginning of 1775; dictating, in his last mo-
F 2
68 DISSENSIONS IN COUNCIL.
ments, a letter to the Governor General, to implore his
friendship and protection for his son.
Towards this son and successor, Asoff-ul-Dowla, the
majority in Council were as harsh as they had been
towards his father; they called upon him for prompt
payment of all the money that was claimed; and, at the
same time, declared that the treaty of alliance was dis-
solved by the death of the old Nabob.
Mr. Middleton had been succeeded at the Court of
Oude, by Mr. Bristow, whom Mr. Macaulay rightly calls
“a creature of their own,” and of whom it may well be
said, that he took his orders from, and acted entirely in
the spirit of Mr. Francis, General Clavering, and
Colonel Monson. Mr. Bristow extorted from the
young, weak, and terrified Nabob, a new treaty, which
contained, as an essential article, an incomparably
more questionable arrangement than Hastings's subsidy
for the expulsion of the turbulent Rohillas, and the
annexation of their territory to that of Oude. By this
treaty, the Company guaranteed to Asoft-ul-Dowla the
possession of Corah and Allahabad; but the Nabob in
return, ceded to the Company the dominion of Cheyte
Sing, Rajah of Benares, which was not his to cede, and
which Hastings had solemnly secured to the Rajah by
a former treaty.
The revenue of Cheyte Sing's territory, thus alien-
ated, was estimated at 22,000,000 rupees; but, as this
took nothing out of the revenue of the young Nabob
of Oude, he was bound, in the same treaty, to discharge
all his father's debts and engagements with the Com-
pany, and to increase the allowance of the Company's
troops which were stationed in his garrison, quite as
much for the security of the Company, as for his own.
Mr. Hastings indignantly refused to sanction this
latter treaty, which, nevertheless, met the warm appro-
bation of the Court of Directors at home; who, as
usual, looked at the money clauses, without reflect-
ing on the injustice of the conditions, or the ability
of the young Nabob to pay.
Although convinced of the elevation of Mr. Hast-
ings's motives, in all respects, I would not undertake
entirely to justify those measures which were often
forced upon him by difficult circumstances and conflict-
CONDUCT OF THE MAJORITY. 69
ing duties; but I may confidently assume, that the
policy of these reformers was altogether of a lower
standard than that of our first great Governor General.
Mr. Macaulay—with an eye to his own congenial
qualities—though he dignifies Junius with the title of
“great anonymous writer,” &c., nevertheless speaks in
plain terms of the conduct of the majority, with whom
the same Junius—under the name of Francis—was all
in all.
I would not knowingly quote an exaggeration, how-
ever much it might tend to expose the persecutors of
my father; but all my reading and information in this
part of our Indian history, justifies me in saying, that
I believe the following passage to be as correct in fact,
as it is pointed and striking in expression.
“In spite of the Governor General’s remonstrances, they
[the majority] proceeded to exercise, in the most indiscreet
manner, their new authority over the subordinate presiden-
cies; threw all the affairs of Bombay into confusion; and inter-
fered, with an incredible union of rashness and feebleness,
in the intestine disputes of the Mahratta Government.
At the same time they fell on the internal administration of
Bengal, and attacked the whole fiscal and judicial system
—a system which was undoubtedly defective, but which
it was very improbable that gentlemen fresh from England
would be competent to amend. The effect of their reforms
was, that all protection to life and property was withdrawn;
and that gangs of robbers plundered and slaughtered with
impunity in the very suburbs of Calcutta. Hastings con-
tinued to live in the Government-house, and to draw the
salary of Governor General. He continued even to take the
lead at the Council-board in the transaction of ordinary
business; for his opponents could not but feel that he knew
much of which the were ignorant; and that he decided, both
surely and speedily, many questions which to them would
have been hopelessly puzzling. But the higher powers of
Government, and the most valuable patronage, had been
taken from him.” +
In this state of things, the native inhabitants of Cal-
cutta were “hopelessly puzzled,” and the Europeans
thrown into amazement and alarm. If these were the
first fruits of reform, what would follow when the tree
should be in full bearing 2 Mr. Hastings had thanked
* Macaulay.
70 DISSENSIONS IN COUNCIL.
his stars that, in spite of nature, he had brought his
warm temper under proper subjection and controul;”
but great as was his command over his passions, he
could not bear this personal debasement, and this
prospect of public shame and ruin. In a letter dated
the 25th of February, 1775, he said—
“These men began their opposition on the second day of
our meeting. The symptoms of it betrayed themselves on the
very first. They condemned me before they could have read
any part of the proceedings, and all the study of the public
records since, all the informations they have raked up out of
the dirt of Calcutta, and the encouragement given to the
greatest villiams in the province, are for the sole purpose of
finding grounds to vilify my character, and undo all the labours
of my government.” +
Irritated, and hopeless of any change of temper
there, Mr. Hastings transmitted a load of papers, con-
taining complete and literal copies of his correspond-
ence with Mr. Middleton, to Lord North, in vindication
of his own character; and announced to his friends in
England, that he should certainly return home by the
next ship unless he received the approbation of the Court
of Directors to his past conduct.
“The natives,” says Mr. Macaulay, “soon found this
out. They considered him as a fallen man; and they acted
after their kind. Some of our readers may have seen, in India,
a cloud of crows pecking a sick vulture to death—no bad type
of what happens in that country, as often as fortune deserts
one who has been great and dreaded. In an instant, all the
sycophants who had lately been ready to lie for him, to
forge for him, to pander for him, to poison for him,
hastened to purchase the favour of his victorious enemies
by accusing him. An Indian Government has only to
let it be understood that it wishes a particular man to
be ruined; and, in twenty-four hours, it will be furnished
with grave charges, supported by depositions, so full and
circumstantial, that any person unaccustomed to Asiatic
mendacity would regard them as decisive. It is well if the
signature of the destined victim is not counterfeited at the
foot of some illegal compact, and if some treasonable paper is
not slipped into a hiding-place in his house. Hastings was
now regarded as helpless. The power to make or mar the
* See Letter to Mr. Sullivan in Mr. Gleig's work.
f Letter to Sullivan, as published by Mr. Gleig.
CONDUCT OF THE MAJORITY. 71
fortume of every man in Bengal had passed, as it seemed, into
the hands of his opponents. Immediately charges against
the Governor General began to pour in. They were eagerly
welcomed by the majority, who, to do them justice, were men
of too much honour knowingly to countenance false accusa-
tions; but who were not sufficiently acquainted with the East
to be aware that, in that part of the world, a very little en-
couragement from power will call forth, in a week, more
Oateses, and Bedloes, and Dangerfields, than Westminster
Hall sees in a century.”
Abating somewhat for the exaggerations of rhetoric,
and for Mr. Macaulay's peculiar style, I take this to be
a tolerably correct picture; and, with a slight reservation
as to the “too much honour” of Mr. Francis, who led
them, I can subscribe to the opinion that General Cla-
vering and Colonel Monson, however unwise, were
honourable men. It appears, however, that the charges
were not merely poured in by the natives, but that they
were diligently sought for by the majority of the Council,
or by Francis (which means the same thing); and that,
not a little, but a great deal of encouragement was offered
to every native witness that would bear testimony
against the Governor General or his friends. I only
follow Mr. Macaulay in stating that it was in this tem-
per of the Council, and in this condition of the feelings
of the natives, that the Rajah Nuncomar was brought
to bear testimony against Mr. Hastings.
“It would have been strange indeed,” says Mr. Macaulay,
“if at such a juncture, Nuncomar had remained quiet. That
bad man was stimulated at once by malignity, by avarice, and
ðy ambition. Now was the time to be avenged on his old
enemy, to wreak a grudge of seventeen years, to establish
himself in the favour of the majority of the Council, to become
the greatest native in Bengal.”
It is no necessary part of my task to enter into details
of the previous life and political conduct of this ill-famed
Indian : I have only to show that the crime of forgery
with which he was charged, and of which he was con-
victed by a jury of Englishmen, whose characters were
never impeached, was fairly tried; and that Sir Elijah
Impey, as well as his brother judges, acted in the only
manner in which they were free to act. Yet in order to
render the narrative more intelligible and correct, I must
72 DISSENSIONS IN COUNCIL.
relate a few particulars respecting Nuncomar, more
clearly to show the manner of man he was, and the
degree of consideration in which he was held before he
was brought to the bar of the Supreme Court.
The Rajah, as his title imports, was an Indian of high
caste. He had been minister and general to Suraj-u-
Dowlah, the Nabob of Bengal, who had perpetrated the
atrocities of the Black Hole of Calcutta, and who, Soon
after those atrocities, had been annihilated by Lord
Clive. At an early period, he prepared to abandon his
prince and master, and to obtain advantages to himself
by playing into the hands of the English conqueror.
After the fall of Suraj-u-Dowlah, Nuncomar obtained
eminent employments, and alternately served and be-
trayed the English. He was never known to do any-
thing except upon the most selfish and corrupt motives
—he was universally regarded as one of the most
faithless, the very worst, and wickedest of the Hindu
chiefs. But he had a perfect knowledge of the indirect
practices of his countrymen, and was supposed to have
a far greater influence over them than he really pos-
sessed.*
For a long time the Court of Directors were impressed
with the notion that business could not be conducted
in Bengal without Nuncomar; and they continued to
employ him, or to insist upon his being employed. In
vain did Lord Clive declare, and in vain did Mr. Hastings
repeat the declaration, that the Rajah Nuncomar was
the worst man they knew in India, one that might be
employed, but never could be trusted. Hastings even
accused Nuncomar of plotting against his life or absolute
ruin. He said in one of his letters to the Court—“From
the year 1759 to 1764, I was engaged in a continued
opposition to the interests and designs of that man,
because I judged him to be adverse to the welfare of
my employers, and I had sufficient indications of his
ill-will to myself.” These, and other, and still stronger
expressions, were used by the Governor in his cor-
respondence; but still the Company were infatuated in
their belief that, in counteracting the falsehood of the
native courts, Nuncomar was to them an indispensable
.*See Major Rennel's evidence before the House of Commons, during
Sir Elijah Impey's Defence in 1788. Appendix, part III. p. 217.
CONDUCT OF THE MAJORITY. 73
instrument; not but that the Court of Directors ad-
mitted the moral obliquity of the man. Eleven years
before the arrival of Sir Elijah Impey at Calcutta, they
had declared their conviction that Nuncomar was capa-
ble of forgery, false accusations, and all other frauds and
crimes, and that he ought to be vigilantly looked after.
Nevertheless the Directors from time to time availed
themselves of the dangerous services of this man; and
he was employed in state intrigues, and coups d’etat,
which wise men would not have ordered, and which
none but bad men would have executed.
The published correspondence of Mr. Hastings (though
but a small part of the evidence which might be pro-
duced) will sufficiently show that the crooked counsels
pursued in India were far more frequently dictated by
the Court of Directors in England, than acquiesced in
by the Governor in India; and that it was with reluc-
tant shame and anguish that Mr. Hastings bowed to the
commands of his masters and employers, in dealing with
Nuncomar. Hastings, however, partly consoled himself
by reflecting that the low estimation in which the Rajah
was held by his own countrymen, of all castes, would
prevent his being dangerous to the Indian Government,
and that as he would remain “a subject of the Com-
pany,” it would be easy to remove him, or otherwise
punish him as soon as it should be proved, or even sus-
pected, that he was abusing the trust.*
It certainly never occurred to Mr. Hastings to doubt
that Nuncomar was not, to all intents, a subject of the
Company, and as such within the jurisdiction of the
courts of law at Calcutta, whatever those courts
might be. Yet, as we shall soon see, it has been made
a crime in Sir Elijah Impey to have tried this Rajah in
the Supreme Court!—and the foundation of this offence
is traced to a fanciful theory, opposed to all fact and
precedent, that the Rajah was not amenable to the laws
established in Calcutta
Surely Mr. Macaulay is not quite so ignorant as to
believe this. But no matter; like a veracious historian,
and no “idiot or biographer,” he is intent upon making
my father a judicial murderer, and therefore believes or
* See Letter from Warren Hastings to Josias Dupré, Esq., quoted by
Mr. Gleig.
74 DISS ENSIONS IN CO UN CIL.
disbelieves whatever he chooses. One only wonders that
he has conjured up no more victims to the alleged con-
spiracy between the Governor General and the Chief
Justice. Unhappily for his argument, out of all Mr.
Hastings's accusers, not another had been hanged either
for forgery or any other capital offence, and still more
unluckily, it was proved afterwards before the House of
Commons, that, duringSir Elijah's long residence in India,
not a single prisoner had been sentenced to death except
the Rajah. Yet if these two functionaries had been ca-
pable of the crime he imputes to them, and if the other
judges had been so uninfluential or supine as he implies
them to have been, nothing would have been easier
than to have brought some score of the Governor's
enemies under the same dreadful penalty: and yet, in a
former instance, Fowkes and others, including the Rajah
himself, who had been tried for conspiracy against Mr.
Hastings, were acquitted by the Supreme Court.* Con-
cerning that transaction Mr. Macaulay keeps a prudential
silence. Nor does he pretend to deny that Nuncomar was
a most accomplished scoundrel, and one who had com-
mitted crimes which would have brought him to condign
punishment in any country under the sun. He admits
that “this bad man was stimulated at once by malignity,
avarice, and ambition;” and that, by accusing Warren
Hastings, he sought “to be avenged on his old enemy, to
wreak a grudge of seventeen years, to establish himself
in the favour of the majority of the Council, to become
the greatest native in Bengal ſ” With all this my father
had nothing to do ; for whatever were Nuncomar's evil
motives and propensities, the Supreme Court had only to
try him on a capital charge which had long been pend-
ing. It was, however, in that blessed frame of mind,
which Mr. Macaulay himself has described, that
the Maharajah Nuncomar, on the 6th of March,
put into the ever-open and inviting palm of Mr.
Francis, a paper accusing the Governor General of
oppression, fraud, embezzlement, and corruption.
Francis read this precious document in Council.
The Governor General indignantly complained of the
way in which he was treated; spoke with contempt
of the accusations of so discredited an informer, and
* See IIowell's State Trials.
CONDUCT OF THE MAJORITY. 75
significantly asked Francis whether he had previously
been aware of Nuncomar's design, in thus standing
forth as his accuser. Mr. Francis, with hesitation
avowed, that though ignorant of the precise contents
of the letter then read, he knew perfectly, when he re-
ceived it from the Rajah, that it was full of heavy
charges against the Governor General.
Warren Hastings denied the right of the Council to
receive such accusations against him; and the meeting
broke up, as nearly every meeting of Council now did,
in storm and anger. Francis retired to confer with his
accomplice; and, at the very next meeting of the Board,
produced another paper, in which Nuncomar demanded
to be heard before the Council, in support of his previous
allegations. Francis, as usual, carried along with him
Clavering and Monson, thus constituting a majority,
voted against Hastings and Barwell, that the Rajah
should be called in and heard. The Governor General
then said, that although he had no objection to the
majority forming themselves into a committee of in-
quiry, he would not sit as the President of a Council,
to be confronted by such a man as Nuncomar, or to see
the very refuse of the community brought in, to give
evidence at the dictation of his accuser. Mr. Macaulay
seems to admit that the Governor General could not
have suffered this without betraying the dignity of his
post; and that from persons like Francis, Clavering,
and Monson, who were heated by daily conflict with
him, he could not expect the fairness of judges. But
even with such rudiments of a legal education as Mr.
Macaulay may confess to have received, or even without
ever having eaten his commons in an inn of court, this
uncandid writer ought to have seen and stated that the
Members of Council could in no case sit as judges upon
the Governor General. Mr. Barwell spoke of the Su-
preme Court as the proper tribunal before which such
cases ought to be tried; and Mr. Barwell was right in
law and in reason ; but it did not suit Mr. Macaulay's
dialectics to introduce anything that went in favour of
the Court over which my father honourably presided,
and so he says not a word about Mr. Barwell's propo-
sition.
In spite of that proposition, and the angry protest of
76 DISSENSIONS IN COUNCIL.
the Governor General, the majority carried their mo-
tion. Hastings rose, declared the sitting at an end,-
as he had a right to do, and left the room, followed by
Barwell.
With their ordinary disregard to all legal prescription,
and with an utter contempt of the presidential authority
vested in the Governor General by Acts of Parliament,
and letters patent, the majority, instead of considering
the Court as dissolved, kept their seats, voted themselves
a council, put Clavering in the chair, and ordered the
Rajah Nuncomar to be called in. He entered with a
flourish about his own integrity, and the purity of his
motives, which must have cost them a struggle to keep
their countenances or repress their laughter. It was
utterly impossible for any one of this self-voted council
to have been five or six months in Calcutta without hear-
ing of the old grudges which Nuncomar bore to
Hastings, or without knowing in what estimation the
Rajah was universally held. It should appear, how-
ever, that the countenance and demeanour of the Board
were such as to encourage and not disconcert the self-
applauding honest Rajah ; for he not only adhered to
the original charges set down in the first paper delivered
to Francis, but—to use Mr. Macaulay's words—after
the fashion of the East, he produced a large supplement
to them. In particular he stated that Hastings had re-
ceived a large sum for appointing Goordas—the son of
Nuncomar, the accuser—treasurer of the Nabob's
household, and for committing the person of his high-
ness—then a mere child—to the care of his step-mother,
the Munny Begum. In urging this charge, Nuncomar,
forgetting the honest character to which he had just
laid claim, admitted that he himself had, in the matter
of this imputed bribe, acted as the Begum's agent. The
evidence he produced was a letter addressed to himself
by the Mummy Begum, in which she expressed her
great satisfaction at the kindness of Hastings, and said
that the Governor had consented to take from her two
lacs of rupees, if she should be pleased to give them.
Of this letter Mr. Macaulay says, -“The seal, whether
forged, as Hastings affirmed, or genuine, as we are
rather inclined to believe, proved nothing. [Mark the
insidious caution of this inuendo ; for what does it
DISSENSIONS IN COUNCIL. 77
*
imply but the writer's belief that Nuncomar was not an
habitual forger, lest by admitting it now, he should
compromise himself hereafter 21 Nuncomar, as every
body knows, who knows India, had only to tell the
Munny Begum that such a letter would give pleasure
to the majority of the Council, in order to procure her
attestation.”* Thus, either way this letter was un-
worthy of the slightest attention; and even had it
been as authentic as gospel, these three Members of
Council had not only no legal right to decide upon it,
but none whatever to receive it. They, however, with
their wonted precipitancy, voted that the charge was
made out ; that Hastings had corruptly received be-
tween thirty and forty thousand pounds sterling; and
that he ought to be compelled to refund the same. The
injustice, the irrationality, the monstrous absurdity and
illegality of such a decision, seem to strike Mr. Macaulay
as they must strike every man of common sense; but
how, after such an act, such a foul antecedent as this,
can he place confidence in any decision or attestation
of the majority ? how can he believe that rancorous
passions were ever absent from their counsels, at
least from those of their prompter? or how believe that
their unofficial and perfectly unauthenticated accusations
were to be received as satisfactory evidence against the
characters of two such men as the Governor General
and the Chief Justice 2 Igitur ne suspicari quidem
possumus quenquam horum ab amico quippiam conten-
disse quod contra fidem, contra jusjurandum, contra
rem publicam esset. Wam hoc quidem in talibus viris
quid attinet discere? si contendisset scio, impertraturum
nonfuisse ; cum illi sanctissimi viri fuerint: aequé autem
nefas fit tale aliquid et facere rogatum, et rogare.
I need not enter into Nuncomar's charges against the
* But what says Hastings 2 “The letter produced by Nuncomar as the
Munny Begum's is a gross forgery. I make no doubt of proving it.”—
Letters to Mr. Graham and Colonel Macleane, dated 25th March, 1775.
Mr. Macaulay speaks of a seal, because it looks more oriental and pic-
turesque, but he says nothing of a signature, although the letter certainly
had a signature, and very probably bore no seal. These little things are
characteristic of the school to which Mr. Macaulay belongs. The sig-
nature of the letter was compared with the Begum's signature attached
to an authenticated communication just received from that lady, by Sir
John D'Oyly, and it was declared not to be in the handwriting of the
Begum.
78 DISSENSIONS IN COUNCIT.
Governor General. In common with every man who
has attentively examined the subject, I believe them to
have been utterly false, and to have been supported by
forgery. This is, and must be, Mr. Macaulay's impres–
sion; although for the reason I have alleged he will not
acknowledge it to its full extent. He admits, however,
that after the proceedings in Council which I have just
related, the general feeling among the English in
Bengal was strongly in favour of the Governor General.
He might have added, that the feeling of the far greater
part of the more respectable or wealthier natives sat
in the same direction; and that it was the general
opinion among these Hindus and Mohammedans that
the country would shortly become the scene of war and
of anarchy, if the wisdom and experience of the ac-
complished Governor General were to be superseded
and overruled by a man like Philip Francis; whom, by-
the-bye, at this point, Mr. Macaulay himself decribes
as “a War Office clerk, profoundly ignorant of the
native languages and the native character.” Yet, not-
withstanding these feelings of the better part of the
community of Calcutta, the triumph of the Rajah
seemed for a time to be complete.
“Nuncomar,” says Hastings, “holds his durbar in complete
state, sends for zemindars and their vakeels, coaxing and
threatening them for complaints, which no doubt he will get
in abundance, besides what he forges himself. The system
which they (the majority) have laid down for conducting
their affair is, as I am told, after this manner. The General
(Clavering) rummages the consultations for disputable matter,
with the aid of old Fowke. Colonel Monson receives, and, I
have been assured, descends even to solicit accusations.
FRANCIs writes." Goring is employed as their agent, with
Mohammed Reza Khan, and Fowke with Nuncomar. . . .
Was it for this that the legislature of Great Britain formed
this new system of government for Bengal, and armed it with
powers extending to every part of the British Empire in
India 1 ° if
Yet where there existed so many persons, of all con-
ditions and castes, that were terrified at the aspect of
affairs and disgusted at these sanctioned and applauded
* For Francis was Junius.
t Letter to Mr. Graham and Colonel Macleane, as given by the Rev.
G. R. Gleig, in Memoirs of Warren Hastings.
NUIN COMAIR CHARGED WITH FORGERY. 79
villainies, it could not but happen that the Rajah's
triumph should be interrupted. One of the principal
native witnesses waited upon the Governor General, and
affirmed with the most solemn asseverations, that Nun-
comar, Mr. Fowke, Radachurn, and others, were guilty
of conspiracy against him, offering to produce satisfac-
tory evidence to that effect. Hastings resolved on the
prosecution of these men, and accordingly instituted
proceedings in the Supreme Court against them for a
conspiracy. The judges, after a long examination of
the case, made Nuncomar and Fowke give bail, and
bound over the Governor General to prosecute them.
It was immediately after these proceedings—that is
to say, after Nuncomar had been charged with a foul
conspiracy, and the four Judges of the Supreme Court
had seen cause sufficient to hold him to bail—that
Francis, Clavering, and Monson made their visit of ho-
nour at Nuncomar's durbar, a compliment which had
never been paid him before, either by themselves or by
the members of any preceding administration.*
Nuncomar was thus out upon bail, when, on the 6th
of May—only a few weeks after—he was charged with
the private forgery which he had committed long ago.
About five years before the arrival of Sir Elijah Impey,
and the new English Court, accusations for this offence
had been brought against the Rajah by one Mohunper-
sand, a native and a Hindu, like himself. The prose-
cution had been registered in the Mayor's Court at Cal-
cutta, over which Hastings then presided; for even this
Court, according to the Charter of 26 Geo. II., was bound
to administer English law, but no proper judges or law
officers had been then appointed, either by the Crown
or the Company; the Governor's functionaries had
made a medley of English, Hindu, and Mohammedan ;
and whether sitting in the Court or not, the Governor
himself often interfered in the proceedings and decisions
of that Court. These facts were well known in England
when the Regulating Act was framed, and in a great
measure for the purpose of preventing their recurrence.
The Mayor's Court considered the charge so grave, and
the evidence so good, that it arrested and committed
* See Hastings's own letters in Mr. Gleig's Memoirs, and “Our Indian
Empire,” by Mr. Mac Farlame.
80 TRIAL OF NU N COMAR.
Nuncomar; but Hastings, who had at that time been
ordered by the secret committee of the Court of Direc-
tors to avail himself of the services of the Rajah, com-
manded the Court to release the already half-convicted
villain, and the Mayor's Court had released him accord-
ingly.
As there then existed no other criminal court to re-
sort to, and as the Governor had interposed between
the law and the offender, it followed, of course, that the
prosecutor, Mohunpersand, neither did nor could take
any further steps in the prosecution before the arrival of
the Supreme Court, which was to supersede the Mayor's
Court, and to be wholly independent of Warren Hast-
ings and the Council. Moreover, the forged instru-
ment, the capital evidence of the Rajah's guilt, was
kept in the Mayor's Court, and could not be pro-
cured from thence. In conformity with the Regu-
lating Act, the new Supreme Court, which sat for
the first time towards the end of October 1774, de-
manded the records and papers of the Mayor's Court,
and these records and papers were forthwith delivered
up. Among them was found the document alleged to
have been forged by Nuncomar. The Judges of the
Supreme Court restored this document to Mohunper-
sand, the party entitled to it, thus putting the prosecutor
in a condition to proceed against the Rajah. In doing
this the Court did that which it was bound to do. And
it must be noted that this was done some months before
Nuncomar, under the encouragement of Francis, Cla-
vering, and Monson, preferred his charges against the
Governor General. With good ground to go upon, Mr.
Mac Farlane says—
“It seems proved, by every possible variety of evidence,
that the Supreme Court could neither have tried the forgery
sooner than it did, nor later than it did; and that, with the
startling coincidence of time and facts (which years after-
wards was turned to such account by Francis and the other
numerous enemies of Hastings and Impey, and which made
so deep an impression on the public mind in England) pro-
ceeded from natural and almost inevitable causes and
circumstances over which neither the Supreme Court
collectively, nor Sir Elijah Impey individually, had any sort
of controul. It further appears that Impey, though subse-
PROSEC UTION OF NU N COM A R. 8]
quently selected out of that body as the sole object of pro-
secution, had less to do with the measures which preceded
the trial and condemnation of Nuncomar, than any of the
four members of that Supreme Court. Judge Chambers did
indeed suggest that the indictment should be laid under an
Act of Queen Elizabeth,” when forgery was not held as a capi-
tal offence; but the other three judges all agreed that the said
Act of Elizabeth was obsolete; that the Charter of George II.,t
and the Regulating Act, left them no choice, binding them
to administer English law at Calcutta as it was administered
in England; and that, therefore, the indictment of Nuncomar
must be laid under the statute which made forgery an offence
punishable with death. The whole amount of Chambers's
difference of opinion was this, and no more. This old asso-
ciate of Dr. Samuel Johnson sat on the bench during the
whole trial, concurred in the sentence, and approved of what-
ever was done. It was not Impey, but Judge Lemaistre, who
issued the warrant upon which Nuncomar was arrested, and
thrown into the common prison of Calcutta.f
Thus, if there had been a conspiracy against Nun-
comar between Hastings and my father, his private
friend and schoolfellow, the Chief Justice, must have
had the art of inducing Judge Lemaistre to take the
first step in it, while in the conclusion of the affair,
Chambers, Hyde, Lemaistre, and himself, must have
been equally concerned, and equally guilty. There is
no separating them, except by that rhetorical and
reviewing process, wherein law and common sense
are set at defiance.
But Mr. Macaulay, as if he considered it too daring
a flight to accuse four English judges of a detestable
conspiracy with the Governor General to take the life
of an obnoxious Hindu, singles out my father as the
only offender, never mentioning any other name than
that of Sir Elijah Impey, and placing all the power, and
all the assumed iniquity in that one Judge. And yet,
he knew, or ought to have known, that Sir Elijah could
do nothing at all without the knowledge, and very little
without the concurrence of his three colleagues—all men
of approved worth, and unblemished reputation.
* The 5th of Elizabeth.
t 2 Geo. II., c. 25, having made forgery to be a felony, became the
only law by which forgery was any crime at all : the Court, therefore,
must have procceded on that statute, or not at all.
† Our Indian Empire.
G
82 PROSECUTION OF NUN COMA R.
In describing what he considers to have led to the
arrest of Nuncomar, the right honourable gentleman
does indeed speak of the Calcutta bench collectively;
but he cannot do even this, without holding up my
father as an especial mark. He says,
“The Supreme Court was, within the sphere of its own
duties, altogether independent of the government. Hastings,
with his usual sagacity, had seen how much advantage he
might derive from possessing himself of this stronghold; and
he had acted accordingly. The judges, especially the Chief
Justice, were hostile to the majority of the Council. The
time had now come for putting this formidable machinery in
action.”
Now the judges were of no party, and only “hostile”
to the majority of the Council, inasmuch as that
majority were “hostile” to law, and passionate and un-
constitutional in the conflict they were waging against
the Governor General; and neither Mr. Macaulay,
nor any other man, whether writer or parliamentary
orator, or both in one, had ever a shadow of evi-
dence to prove, that the hostility of Sir Elijah Impey
was greater than that which Justice Chambers,
or Justice Hyde, or Justice Lemaistre, enter-
tained against the majority in the Council. In
good truth, the elements of hostility were wanting in
my father's disposition. He was the worst—that is to
say the feeblest—hater I ever knew. But had it been
otherwise,_had his disposition been hot and impetuous,
instead of calm and conciliatory as it was, he could
never have indulged his hostility to the majority of the
Council at the expense of the life of a human being, to
the outrage of the laws he revered, and to the offence
of the God he adored
Mr. Macaulay speaks as if the arrest of the Rajah
followed immediately upon his denunciations of the
Governor General; in the first place, let it be remem-
bered, that two good calendar months elapsed between
those two events. But I shall hereafter show distinctly,
not only in the words of my father's defence, but from
the evidence of various English witnesses taken upon
oath, that the coincidence, if such it can be called, was
indeed inevitable, and that there was no connection
whatever, between Nuncomar's insidious attack upon
PROSECUTION OF NUNCOMAR. 83
Warren Hastings, and his trial and condemnation for
forgery. , Mohunpersand, who had been wronged by
the Rajah, and who was a Hindu, and probably as
prone to revenge as any of his countrymen, stood in no
need therefore of any prompting: he was bound to pro-
secute the charge he had brought, and he did prosecute
it at the very first moment that he could do so, or that
the terms and rules of the Court allowed.
The right honourable critical and historical essayist,
with an unmannerly and unwarrantable sneer at Mr.
Hastings's biographer, says, “the ostensible prosecutor
was a native. But it was then, and still is, the opinion
of everybody—idiots and biographers excepted—that
Hastings was the real mover in the business.” This is
flippant, this is indecent, this is cowardly,–if regard
be paid to the sacred profession of the biographer; nei-
ther is it true, and far from amounting to anything like
proof: it does not afford matter for a sober hypothesis,
—not even for a rational guess.”
The Governor General on the trial of Nuncomar,
deposed upon oath, that he had never, directly or indi-
rectly, countenanced or forwarded the prosecution for
forgery against Nuncomar. The solemn oath of Warren
Hastings is assuredly worth more than the hazardous
assertion of Mr. Macaulay, who can produce no manner
of evidence to support his sharp dictum.
In regard to the alleged conspiracy against the
prisoner, let it here and hereafter be borne in mind, that
though the fact had been for eleven years the subject of
parliamentary investigation, nothing either then or since
was ever brought to light, to prove any such combination
between the parties. How, then, can it be averred, at
the present distance of time from those transactions,
that “it was then, and still is, the opinion of every body
—idiots and biographers excepted—that Hastings was
the real mover in the business 2 * That it was not
* Mr. Gleig is far too able and spirited a writer, to require any advocacy
of mine, and has, perhaps, done well, to treat his insulter with the silent
contempt which he deserves. Had our cases been parallel, I might have
done the same. But Mr. Macaulay has not insulted me, but my father,
whose reputation is more sacred to me than my own, because he no longer
lives to defend it for himself. By this act of double cowardice—though
entitled to a double portion of contempt—Mr. Macaulay has no right to
expect the same forbearance from me as from Mr. Gleig.
G 2
84 PROSECUTION OF NUN COMA R.
the opinion of contemporary lawyers, is proved by the
letters produced, at the time of his persecution, by Sir
Elijah Impey, from Lord Ashburton and Sir W. Black-
stone,” which letters were written shortly after the trial
of Nuncomar; that it was not the opinion of the
inhabitants of Calcutta, natives as well as Europeans,
is proved by the addresses+ of all the Hindus and Arme-
nians, of all the free merchants, and of the grand jury;
of all, in short, except Francis, Clavering, and Monson;
and even they refused to recommend the prisoner to
mercy, or to interfere in any way to save his life. Either
Mr. Macaulay's everybody becomes a nobody, or every-
body is an idiot or a biographer except himself.
But let us suppose, for the sake of argument—
though my thorough acquaintance with the character of
Mr. Hastings will never allow me to admit it as a fact
—that the Governor General was indeed the real mover
in the business; whom did he move, or could move 7 not
Sir Elijah Impey singly, for that would have been of no
use,_not the Court collectively, not the Chief Justice
and the three puisne judges in a body, for that would
have been alike perilous in the attempt, and impracti-
cable in execution. Hastings, then, could only move
Mohunpersand, the Hindu prosecutor; and so soon as
the prosecutor brought up the case, the Court could do
nothing after trial but proceed to judgment according
to the laws of England, which awarded death on the
gallows to all felonies, including forgery. Thus, even
if the Governor General were the chief mover, the Su-
preme Court had nothing to do with the movement.
The Court had only to try the prisoner brought before
them, it mattered not to them how, or by whom. Even if
it had been in evidence that Warren Hastings had urged
Mohunpersand, the judges could not have proceeded
otherwise than they did. If guilt is often screened by a
confederacy, it is perhaps, as often denounced by a
confederacy.
Though often a fearfully exciting tragedy, the New-
gate calendar is not quite such pleasant reading as the
Greek tragedians, over which and his articles for the
* See pages 17, 18, of the printed Defence.
t See Appendix, part 2, Nos. 1, 2, 3, 4, 5, of the printed Defence,
p. 90, et sequent.
PROSECUTION OF NUN COMAR. 85
Edinburgh Review, Mr. Macaulay is said to have spent
most of his time while in India, instead of devoting
that time to the public services in which he was osten-
sibly employed, and for which he was so extravagantly
paid out of the public purse; but let Mr. Macaulay
take up the Newgate Calendar, the “Causes Celebres,”
or the “State Trials,” and he will find, that the prose-
cution and conviction of a criminal are often dependent
upon charges first laid by a scoundrel, acting upon any
principle rather than that of honour and justice. The
judge does not investigate the motives of the informer
or the prosecutor, nor does the jury: the jury listens to
the evidence of the crime, and upon their verdict the
judge applies the law. If the malus animus of prosecutors
and informers had been allowed to stand in bar of legal
procedure, the Newgate Calendar would have been but
a small book compared to what it is.
O HAPTER IV.
ARREST AND TRIAL OF NUNCOMAR, AND INTERFERENCE OF
THE MAJORITY-NUNCOMAR'S PETITION; CONSULTATIONS
IN COUNCIL UPON IT-EVIDENCE OF MATTHEW YEANDLE,
MR. TOLFREY, AND DR. MURCHISON,+ ETC.
IT was on the 6th of March, 1775, that Nuncomar put
his letter of charges against Hastings into the hands of
Francis, or that Francis produced them in the Council
Chamber: it was on the 6th of May, 1775, and not
earlier, that Nuncomar was arrested in consequence of
the party injured by the forgery having reproduced his
charge. Mr. Macaulay says, in his boldly figurative
manner, that Calcutta was astounded by the sudden
news of his arrest. But a rhetorical figure is not a fact;
there is nothing to show that the inhabitants of that
populous city were disturbed or in any way excited by
the news. The Maharajah whom Mr. Macaulay some-
what irreverently stylesf “a Brahmin of the Brahmins,”
had been arrested and imprisoned more than once be-
fore; his character was infamous, he was detested even
by those who were for the season acting with him in
the hope of sharing the future spoils of the majority;
and among the superior classes, native or European,
there were probably but few who were ignorant of the
desperate game he had been playing throughout the
whole of his iniquitous and changeful life, or who
* Kenneth Murchison, Esquire, father of the present Sir Roderick, the
distinguished geologist, and author of “The Geology of Russia in Europe,
and the Ural Mountains.” See Mr. Tolfrey's Evidence, Appendix, part 3,
No. 6, p. 198 of the printed Defence.
t In allusion to Philippians, cap. 3, v. 5.
A R REST OF NUNCOM. A. R. 87
thought his final destiny could terminate otherwise than
tragically. Nothing was more familiar to the minds of
the natives than rapid rises and sudden downfalls; and
the apathy and fatalism of these people are extreme.
Mr. Macaulay is somewhat more correct in describing
the manner in which the majority acted after Nun-
comar's arrest; but in no one thing that he touches can
he be accurate or sincere. With him the suppressio veri
takes turn and turn about with the assertio falsi. His
words are these,
“The rage of the majority rose to the highest point. They
protested against the proceedings of the Supreme Court, and
sent several urgent messages to the judges, demanding that
Nuncomar should be admitted to bail. The judges returned
haughty and resolute answers. All that the Council could
do, was to heap honours and emoluments on the family of
Nuncomar; and this they did.”
Now the “majority” did something more than this:
as if to display their contempt for the judges of the
Supreme Court, or to influence public opinion by testi-
fying still farther their esteem for the motorious male-
factor, they visited Nuncomar in his prison—exhibiting
themselves there with pomp and preparation, General
Clavering being attended by his aide-de-camp, Captain
Thornton. At this last proceeding—of which Mr.
Macaulay says nothing—Hastings was exceedingly in-
censed; and his wrath must have risen to the highest
pitch, when, almost immediately after the occurrence,
he thus wrote to his friends at home :
“The visit to Nuncomar when he was to be prosecuted for
a conspiracy, and * the elevation of his son when the old
gentleman was in jail, and in a fair way to be hanged, are
bold expedients. I doubt if the people in England will ap-
prove of such berefaced declarations of their connections
with such a scoundrel, or of such attempts to impede and
frustrate the course of justice.”f
Mr. Macaulay, who is “nothing if not” rhetorical,
speaking of the reply of the judges to the demand of
admitting the prisoner to bail, uses the words “haughty”
and “resolute.” But why? The answer which the
* Mr. Macaulay, with some flippant remark, ignorantly states, that Mr.
Hastings had promoted Goordas.
f Letters to Graham and Macleane, dated May 18, 1775, as given in
Mr. Gleig's Memoir.
88 TRIAL OF N UN COMAR AND
Court had to return was simply this, “Forgery is not
a bailable offence.” This was the voice of the law ;
there could be no haughtiness in it. If the majority re-
peated their demand with their usual arrogance and
presumption; if, as in other cases they menaced the
Court, and attempted to overrule it, then, I can well be-
lieve, that the rejoinder of the Court would be “resolute”
enough. My father, for one, had at all times a hearty
contempt for bullying and browbeating, and was never
the man to be moved from his purpose, or deterred from
his duty, by threats of persecution. His was—
“The virtuous mind, that ever walks attended
By a strong-siding champion—conscience.”
But if bail was denied to Nuncomar, every possible
indulgence was allowed to him in his prison. By order
of the judges, unusual care was taken to furnish him
with the means of performing his ablutions, and other
offices of religion, in adherence to the rules of Brahmin-
ical life.
I have said that the arrest took place on the 6th of
May. There was no hurrying on of the trial. The
first session of oyer and terminer held by the Court,
commenced in the month of June ; before that time
nothing could be done, and beyond that time nothing
could be delayed.
A true bill against Nuncomar was found by a grand
jury, composed of some of the most respectable and
worthy British inhabitants of Calcutta, who, assuredly,
would have ignored the bill, if there had been any sus-
picion of collusion, or any kind of foul play. The bill
being duly found by the grand jury, the prisoner was,
on the 8th of June, brought before the judges of the
Supreme Court, and a jury composed of twelve British
subjects inhabiting Calcutta.” Mohunpersand, a native
merchant of Calcutta, and the original accuser, made out
his case with much clearness, and there was an accu-
mulation of evidence to prove that, nearly six years be-
fore, the prisoner had committed forgery on or in a cer-
tain bond, with the intention of defrauding the prosecutor
* Mr. Macaulay, ever determined to make my father the sole or pro-
minent actor, keeping the three other judges in the background, as if they
had nothing to do with the proceedings, here says, “Nuncomar was
brought before Sir Elijah Impey, and a jury composed of Englishmen.”
INTERFERENCE OF TH F MAJORITY. 89
out of a large sum of money. The bond was produced ;
the seal and signature were sworn to as being false, and
the work of Nuncomar. Numerous witnesses deposed
not only to this particular act, but to the general cha-
racter of the prisoner, speaking of the Rajah, as a man
who had been repeatedly guilty of forgery. Nuncomar
had witnesses at hand to swear against nearly every-
thing that the witnesses for the prosecution swore to.
The great informer's knowledge and tactics probably
did not extend very far beyond this producing of false
witnesses, in which he had proved himself a proficient;
but he was assisted by counsel—by two English bar-
risters, Messrs. Farrer and Brix—of eminent ability
and repute; and so far from being, as some have alleged,
unacquainted with the nature of the English laws relat-
ing to forgery, and with the dangerous predicament in
which he stood, he was very well informed as to both
these circumstances, and knew perfectly that life and
death depended upon the issue. In fact, as I have
already stated, the particular law in question, as well as
other criminal laws of England, had been applied in
Calcutta, long before the Supreme Court was established,
and before the passing of the Regulating Act, which
did but republish, confirm, and provide for, the due exe-
cution of the Statute of George I., in the 13th year of
his reign, A.D. 1726; and the confirmatory Charter of
George II., granted in the 26th year of his reign, A.D.
1753; and as far back as 1765, Radachund Mettre, a
Hindu of rank like Nuncomar, had been condemned to
death for forgery; and though he had received the
King's pardon, other natives had been hanged for the
same crime, years before the trial and conviction of
Nuncomar.
This Rajah was a man of remarkable ability; and,
like most of his countrymen, quick in inquiry and re-
tentive of what he learned ; his connection with Francis
must have familiarized his mind with the provisions of
the Regulating Act, and with the unqualified injunc-
tions which the letters patent gave the judges to admi-
nister the law in cases of forgery, and other felonies, as
they were administered in the courts of England.
Moreover, during his imprisonment, his counsel—both
respectable barristers—had had free access to him, and
90 TRIAL OF NU N COMAR AND
they were fully competent to acquaint him with the
bearing of our law upon his indictment.
Nuncomar was not ignorant of the law, neither
he nor his counsel ever thought of disputing or
challenging the jurisdiction of the Supreme Court, as
was done for him by others, though not until a long
time after he had been hanged; but the jury first impan-
nelled they did challenge, and the privilege being of
course allowed, the following jury were ultimately
SWOI’ſ] :-
Edward Scott, John Ferguson,
Robert Macfarlane, Arthur Adie,
Thomas Smith, John Collis,
Edward Ellerington, Samuel Touchett,”
Joseph Bernard Smith, Edward Satterthwaite
John Robinson, Charles Weston.
Nuncomar was upheld by the belief that the majority
of the Council who had employed him, urged him into
conspiracy and dealings with false witnesses; rewarded
him, flattered him, honoured him even when lying in jail
as a criminal; were not only stronger than the Governor
General, but also seemed to be stronger than the law
—threatening to step in between him and the exe-
cution of the sentence of the Supreme Court. By this
fallacious hope was he sustained, from the moment he
was carried to prison, down to that in which he ascended
the scaffold. Nor were efforts wanting on the part of
the majority of the Council to buoy him up in this cruel
delusion. Messages were continually sent to him in
prison by General Clavering and Colonel Monson—
Francis being too cunning to commit himself in this
way—and to these messages answers were returned by
the Rajah. On the trial, however, his witnesses were
out-numbered by those for the prosecution, among
whom were included very many, if not most of the prin-
* It is observable that Mr. Samuel Touchett was one of the jury on
Nuncomar's trial in 1775. (See Howell's State Trials.) Although in
1780 the petition commonly called Touchett's petition, so named from
him, was presented to Parliament, and contained the charges against Sir
Elijah Impey; one of its objects being to transmit the power of respiting
from the judges to the Government with a clear reference to this case;
though the same Mr. Touchett, like the rest of the jury, when strongly
urged by Nuncomar's counsel, had refused to apply for a respite on that
occasion. See appendix to Report on Touchett's petition, No. 3.
f Affidavit of Matthew Yeandle, the jailer of Calcutta.
INTERFERENCE OF THE MAJORITY. 91
cipal native inhabitants of Calcutta. The deed now
produced in Court was taken as a convincing proof of
guilt, and the whole tenor of the man’s life corroborated
it. There was no indecent precipitation, or any irregu-
larity whatsoever in the trial : it was slow, circumspect,
and solemn. Even Mr. Macaulay seems to admit as
much as this. He says—“A great quantity of contra-
dictory swearing, and the necessity of having every
word interpreted, protracted the trial to a most unusual
length.” Conspirators do not proceed thus. It was not
in this fashion that the infamous Judge Jeffries dealt
with his prisoners, although Mr. Macaulay, with an
absurdity equal to his presumption, has dared to assi-
milate with that execrable monster of injustice my most
upright father!
The Court had no option whether to proceed
or not, unless grounds could be proved for appeal
against its jurisdiction, or for quashing the indictment:
the first was not attempted; the second was, but upon
grounds proved not to be admissable. The cause of
the prisoner was heard as well as that of the prosecutor
—with equal patience and impartiality. Nay, it is the
opinion of all who have carefully perused the trial, and
who are competent to judge in such matters, that great
favour was shown to the prisoner, particularly by the
direction of the presiding judge. In the end the jury
returned a plain and unqualified verdict of guilty, with-
out the slightest hint of recommending the prisoner
to mercy. The four judges concurred; and Sir Elijah,
as president and organ of the Court, pronounced sen-
tence of death. During the proceedings he had taken
neither more nor less part than his three brethren:
therefore, if there was guilt in the trial and sentence,
Justices Chambers, and Hyde, Lemaistre, were as guilty
as he. And what can be said of the twelve “good men
and true,” who sat as a jury, and returned the verdict of
guilty? Why nothing less than this, that if there was
a conspiracy—if the Rajah had not a fair trial—they
were as guilty as the four judges sitting on the bench
Yet, incredible as it may seem, when Sir Elijah Impey
was to be held up as the murderer of Nuncomar, no
breath of censure, no whisper of suspicion was ever
heard against any one but him.
92 TRIAL OF N UN COMA R AND
From the Court Nuncomar was remanded to his
prison; where he continued to be treated with all tender-
ness, consistent with safe custody, is his unhappy posi-
tion.* In 1765, when Radachund Mettre lay under
sentence of death for forgery, the principal native inha-
bitants of Calcutta drew up and signed an earnest peti-
tion in his favour; but now no such step was taken by
the natives, neither Hindu nor Mohammedan ; nor
could a single English resident of either party be found
to recommend the prisoner to mercy, or to pray for a
suspension of his execution—though solicited to the
utmost verge of propriety by Mr. Farrer, f his humane
and spirited advocate. Not a friend nor relative peti-
tioned for the life of the convict. They could hardly
have been withheld by fear of Mr. Hastings; for, though
not stronger than the law, Francis, Clavering, and
Monson were, at that time, far stronger than the Go-
vernor General: the majority in Council were ruling all
things with an absolute sway, and they continued so to
rule for many months after that period. From them
the family and friends of Nuncomar had received offices
of emolument, together with such honours as such
strange statesmen only could confer. To them, therefore,
they might have reasonably petitioned in behalf
of their relative—Mr. Macaulay’s “Brahmin of the
Brahmins !” Yet they petitioned not. Like Nuncomar
himself, they probably rested upon the confident hope
that Francis, Clavering, or Monson would prevent his
execution. But assuredly it was not for the judges of
the Supreme Court to enter into these secret specula-
tions, or to invite petitions from family partisans or
friends. The only party or person that petitioned for
Nuncomar was Nuncomar himself
The instances are most rare in which attention is
paid to a prayer for mercy put up by a condemned pri-
soner, at the very last moment, and without any other
recommendation ; and these must be kept altogether
distinct from the present case: for this single, personal,
* See official document, No. 18 Appendix, part 5, p. 61, of Sir E. Impey’s
Defence, where the name of Radachund Mettre appears as sentenced to
death for forgery, but pardoned, Feb. 27, 1765.
f Thomas Farrer, Esq., then M.P. for Wareham, gave his evidence
from his place in the House of Commons, Feb. I1, 1788. See Appendix,
p art 3, from p. 105 to 164 of the printed defence.
INTERFERENCE OF THE MAJORITY. 93
and tardy petition was never presented to the judges at
all. It was burned by the hands of the common hangman
as a libel on the Supreme Court, and it was so burned,
not by order of the Supreme Court, to whom it was
not addressed, and who knew nothing of it until several
days after the convicted felon had been hanged; not
on the motion of Hastings, who was afterwards said to
have plotted the prisoner's death, and who, at that mo-
ment, could carry no measure whatsoever; but on the
motion of Francis, who controlled everything that was
done in Council, and who afterwards pretended that
he and his colleagues had been extremely anxious to
save the Rajah
“These men,” says Mr. Mac Farlane, with perfect truth,
and with a mass of evidence to bear him out, “had seized upon
all the powers of government; they had repeatedly set the au-
thority of Hastings at defiance, voting another president to fill
his chair; they had interfered in matters of far greater im-
port; they had broken treaties and alliances of his making,
and had made treaties and compacts of their own; they had
declared to his own face, and to the Court of Directors, and
to still higher authorities at home, that Hastings was an em-
bezzler, a plunderer, a conspirator, and that they believed him
to be capable of the darkest crimes, and Nuncomar wholly
innocent of the two charges—of the conspiracy on which he
was admitted to bail, and of the forgery for which he was to
be hanged; they continued to defy his authority after the
event, as before it; and everything goes to prove, that if they
had been seriously bent on preserving the old Rajah’s life, they
might have preserved it. If they had been animated by the
generous feelings and the enthusiastic regard for justice which
Francis afterwards laid claim to for himself and his colleagues,
they would have risked hostile collision, and actual civil war
in the streets of Calcutta, rather than have permitted the exe-
cution. In a very short time they did risk that extremity.
In the present case they seem to have felt that the death of
Nuncomar would give them the opportunity of proclaiming to
the world—unacquainted with the particulars—that Hastings
had precipitated the arrest, trial, and execution of a trouble-
some witness whose charges he could not answer, in order to
terrify other witnesses from appearing against him. And to
this account they certainly began to turn the old Rajah as
soon as he was dead.”* ~ ..
* Our Indian Empire.
94 CONSUILTATIONS UPON
I have stated that Nuncomar's petition was not ad-
dressed to the Supreme Court, and that the judges
knew nothing of it until after the prisoner had been
executed, when, of course, it was too late for mercy
from any quarter. The petition was addressed to the
Council, but was not written until the eve of the day
fixed for the execution—so long did the unhappy pri-
soner's confidence last in his political patrons, the trea-
cherous majority. But that which is strangest of all,
and so startling as to be incredible, if it were not sup-
ported by irrefragable evidence—the Rajah's petition
was not presented at the Council Board until eleven days
after the petitioner had been hanged To those who
love to put the worst construction upon whatever they
choose to think mysterious—to those who can scent a
conspiracy wherever there appears to them anything
like a combination of time and circumstances, or a diffi-
culty of explaining, upon just and rational grounds, any
perplexity at a critical moment, in the conduct of public
men—there will be found far better foundation for be-
lieving that Francis, Clavering, and Monson, were en-
gaged in a conspiracy to bring the Rajah to the gallows,
than that there was any such plot between Warren
Hastings and Sir Elijah Impey. I must, of necessity,
refer to this part of the subject when I put my father
upon his defence before the House of Commons, and
repeat the words of that defence; but the present
seems to me the proper place for introducing certain
official documents, without which this dark story can-
not be properly understood, and I here introduce them
accordingly.
Extract of Bengal Secret Consultations, August 14, 1775.*
“GENERAL CLAVERING—I beg leave to inform the Board,
that, on the 4th of this month, a person 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 con-
tain some request that I should take some steps to intercede
for him, and being resolved not to make any application what-
* Nuncomar was executed on the 5th of August. I shall relate that
execution presently, my immediate object is merely to show that neither
Sir Elijah Impey, nor the other judges, could possibly prevent its taking
place, and that nothing whatever was done by any other party to pre-
vent it.
NUNCOMAR’s PETITION. 95
ever in his favour, I left the paper on my table until the 6th,
which was the day after his execution, when I ordered it to
be translated by my interpreter. As it appears to me that
this paper contains several circumstances which it may be
proper for the Court of Directors, and his Majesty's ministers,
to be acquainted with, I have brought it with me here, and de-
sire that the Board will instruct me what I have to do with it:
the title of it is, “A Representation from Maharajah Nun-
comar to the General and Gentlemen of Council.’
“MR. FRANCIs—As the General informs the Board, that
the paper contains several circumstances which he thinks it
may be proper for the Court of Directors, and his Majesty's
ministers, to be acquainted with, I would request that he lay
it before the Board.
“MR. BARw ELL–I really do not understand the tendency
of this question, or by what authority the General thinks he
may keep back, or bring before the Board a paper addressed
to them, or how this address came to be translated for the
particular information of the General before it was presented
here.* If the General thinks himself authorised to suppress
a paper addressed to the gentlemen of Council, he is the
only judge of that authority: for my part, I confess myself to
be equally astonished at the mysterious air with which this
paper is brought before us, and the manner in which it came
to the General's possession, as likewise at the particular ex-
planation of every part of it before it was brought to the
Board. If the General has a particular commission to retain
this paper from the knowledge of those to whom it is ad-
dressed, he alone is the proper judge how he ought to act;
when the paper comes before me I shall judge of it.
“GENERAL CLAver ING—If Mr. Barwell will be pleased
to recur to the introduction of my minute, he will observe that
I mentioned having put the paper into the hands of my Persian
translator; consequently could not know the contents of it, or
to whom it was addressed, till it was translated.t I brought
* It was General Clavering's bounden duty to have presented such a
paper as soon as he had received it. If the Board were not sitting, he
ought to have called them together. The paper was presented to him
by a servant of Nuncomar, and he knew that Nuncomar was to be hanged
the very next morning. There was, therefore, not a moment to lose.
He also knew, or as he says, “imagined,” that the paper was a petition.
He says that he was resolved not to make any application whatever in
Nuncomar's favour; but this resolution ought not to have prevented his
handing the petition to the gentlemen of the Council to whom it was
equally addressed. How could he know that Hastings and Barwell
might not be inclined to make some application in favour of the convict 2
He put it out of their power by keeping the paper
t Nuncomar's petition was so short, that General Clavering's Persian
interpreter, who was always at hand in his house, might have given him
96 CONSU LTATIONS UPON
it with me to the Council the first day which they met, after
I knew its contents ; but the Board not having gone that
day into the secret department, I did not think it proper at
that time to introduce it.* Nobody can be answerable for
the papers they may receive. All that I can say is, that this
paper had the seal and signature of Rajah Nuncomar to it ; +
and I bring it to the Board just in the form I received it, that
is to say, open.
“Colon EL Monson—As this paper is said to contain
circumstances with which the Court of Directors, and his
Majesty's ministers, should be acquainted, I think the
General should lay it before the Board.
“THE Gover No R GENERAL–I do not understand this
mystery. If there can be a doubt whether the paper be not
already before the Board, by the terms of the General's first
minute upon it, I do myself insist that it be produced, if it be
only to give me an opportunity of knowing the contents of an
address to the Superior Council of India, excluding the first
Member in the title of it, and conferring that title on General
Clavering; and I give it as my opinion, that it ought to be
produced.
“GENERAL CLAVERING—I am sorry to observe, that the
Governor General should have mistaken the title of this address
to the Board, by calling it an address to me as Governor Gene-
ral, when the title of it had been so recently mentioned, by my
saying it was addressed to the General, and the Gentlemen of
Council, which, in my opinion, does not express, either by
words or by inference, that ever that title is such as the
Governor General has mentioned. At all events, I am no
more answerable for the title of the paper, than I am for its
contentS.
“THE Gover Nor GENERAL–I did not say that the
the sense of it in ten minutes. But the General preferred leaving it upon
his table “until the 6th, which was the day after the execution,” when,
according to his own account, he first put it into the hands of his interpreter
In one minute the General might have known from his interpreter, that
the petition was not meant for him singly and solely.—See Bengal Secret
Consultations, 14th and 16th August, 1775.
* How delicate is the General's attention to official etiquette In a
hundred other instances, he, and Francis, and Monson, set the established
rules of the Council-chamber at defiance, and made a secret committee of
their own. But if the Board had gone that day into the secret depart-
ment, what could it have availed Nuncomar, who had been hanged several
days before ?
f Whatever may have been General Clavering's ignorance of the lan-
guage of the country, and of the Persian character, he must have known
the seal of Nuncomar as soon as the petition was presented, even sup-
posing the Rajah's servant had not given him that explanation, or any in-
formation as to the contents of the paper.
NUNCOMAR’s PETITION. 97
address gave the General the title of Governor General, but
meant only to imply, that it conferred that title on him, by
mentioning him particularly, and the rest of the Council
collectively.
“Resolved, that the paper delivered by the servant of
Nuncomar to General Clavering, be produced and read.
“The General is accordingly requested to produce it, and
it is read.
“N.B. This paper is ordered to be expunged from the records
by a resolution of the Board, taken at the subsequent consulta-
tion, on the 16th instant.”
Evtract of Bengal Secret Consultations, the 16th August,
1775. -
“The Persian translator sends in a corrected translation of
the petition of the late Maharajah Nuncomar, delivered in by
General Clavering, and entered in consultation the 14th instant;
in which, the Board remark, that the address is made in the
wsual form, to the Governor General and Council, and not as
}. understood from the first translation of it laid before the
oard.
“THE GovERN or GENERAL moves—that, as this petition
contains expressions reflecting upon the characters of the
Chief Justice and judges of the Supreme Court, a copy of it
may be sent to them.
“MR. FRANCIs—I think that our sending a copy of the
Rajah Nuncomar's address to this Board, to the Chief Jus-
tice and the judges, would be giving it much more weight than
it deserves. I consider the insinuations contained in it against
them, as wholly unsupported, and of a libellous nature; and
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 hands of the common hangman.
“MR. BARw ELL–I have no objection to the paper being
burned by the hands of the common hangman; but I would
deliver it to the judges, agreeable to the Governor's proposi-
tion.
“Colon EL MONSON.—I differ with Mr. Barwell in
opinion. I think this Board cannot communicate the letter
to the judges; if they did, I think they might be liable to a
prosecution for a libel.* The paper I deem to have a libellous
tendency, and the assertions contained in it are unsupported.
I agree with Mr. Francis in opinion, that the paper should be
* The Act 13 Geo. III. c. 63, sects. 15, 17, prohibits the Court from
trying any action of indictment against the Governor General and Coun-
cillors for any offence not being treason or felony; and exempts them
from arrest and imprisonment. See ante pp. 37, 38.
H
98 CONSU LTATIONS UPON
burned, under the inspection of the sheriff, by the hands of
the common hangman.
“GENERAL CLAVERING—I totally disapprove of sending
to the judges the paper, agreeably to the Governor Ge-
neral’s proposition, because I think it might make the Mem-
bers of the Board who sent it, liable to a prosecution ; and
therefore agree with Mr. Francis, that it should be delivered
to the sheriff, to be burned by the hands of the common
hangman.
“THE Gover Nor GENERAL–I should have no objection
to any act which should publish to the world the sense which
this Board entertain of the paper in question; but it does not
appear to me that such an effect will be produced by Mr.
Francis's motion. The inhabitants of this settlement form
but a very small part of that collective body commonly under-
stood by that expression of the world. The petition itself
stands upon our records, through which it will find its way
to the Court of Directors, to Ilis Majesty’s Ministers, and
in all probability will become public to the whole people of
Britain. I do not, however, object to the motion of its being
burned.
“The Board do not agree to the Governor General’s motion
for sending a copy of the address of Maharajah Nuncomar to
the judges; but resolve, that orders be sent to the sheriffs,
with the original letter, to cause it to be burned publicly, by
the hands of the common hangman, in a proper place for that
purpose, on Monday next, declaring it to be a libel.
“MR. FRANCIs—I beg leave to observe, that by the same
channel 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 this Board;
I therefore hope, its being destroyed in 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
judges from eatending beyond this Board, I move, that the
entry of the address of the Rajah Nuncomar, entered on our
proceedings of Monday last, be expunged.
“Agreed, that it be expunged accordingly, and that the
translations be destroyed.”
And accordingly the paper was burned, under the in-
spection of Mr. Tolfrey, the substitute of Sheriff Mac-
rabie, who was Francis's brother-in-law.”
* Q. “Was you present when a paper was burned in consequence of an
* * * > 3 y
order of the Governor General and Council, of the 16th of August, 1775?
NUNCOMAR's PETITION. 99
The whole of that document, as translated into Eng-
lish, will be found in the appendix to the present
volume. In this place, I need merely bring under the
reader's eye, an abstract of the passages in it, which
the Council deemed libellous and unsupported; and of
the publication of which, Francis, Clavering, and Mon-
son, expressed so much dread and fear on their own
aCCOunt.
After affirming that he himself was an innocent
and an honourable man, and his prosecutor, Mohunper-
sand, a great scoundrel and liar, Nuncomar complained
that many English gentlemen had become his enemies,
and joining with “Lord” Impey, “and the other justices,”
had tried him by the English laws, which were contrary
to the customs of his country, in which there was never
any such administration of justice before; * and taking
the evidence of his enemies in proof of his crime, had
condemned him to death : that many principal people
of the country, who were acquainted with his honesty,
had frequently requested of the judges to suspend his
execution until the King's pleasure should be known;
but this they had refused,'t and were unjustly taking
away his life.
Although the extracts of the “Bengal Secret Consul-
tations” which I have quoted, and which contain a tale
so startling, have been printed and reprinted for more
than half-a-century, and are accessible to any inquiring
and pains-taking writer, they seem to have been utterly
unknown to the tranchant Mr. Macaulay, whose sword
A. “I receiveda paper, a small Persian paper, sealed up, with instructions
from the Governor General and Council, to have it burned as a libel by
the hands of the common hangman. It was burned by the jailer; there
was no common hangman. It was burned sealed up, without the com-
tents being disclosed.”—Examination of Mr. Tolfrey at Calcutta.—See
Appendix, part 3, No. 7, p. 178, Sir E. Impey’s Defence.
“Why,” asks Sir Elijah Impey, “this anxiety that the contents of the
paper should not be disclosed ? Why was it ever brought into the secret
department 2 °–Notes in Appendia to Speech before the House of
Commons.
* This assertion was palpably false, and the Rajah knew it to be so.
He knew that Radachund Mettre had been tried and convicted for forgery
in 1765, on the 2 Geo. II. c. 25.
f This is equally false. The judges could not refuse a reprieve which
was never asked for; nor could they have granted it had it been asked for,
without stating sufficient grounds, as required by the Charter annexed to
the Regulating Act. See sec. 20, ante p. 42.
H 2
100 POW ER OF THE SUPREME COURT
is not two-edged, and can only cut in one direction; he
says not a word about the minutes of Council, nor even
about the petition. It would not have suited his line of
argument to do so; for the slanderers of my father, in
their several minutes, declare, over and over again, that
it was libellous in Nuncomar to assert that there was a
confederacy against him, and that he had not been
fairly tried.
But yet I firmly believe that Mr. Macaulay, who
does all he can to consign the memory of an honourable
man to eternal infamy, by the mere impulse of false rea-
soning, never gave himself the trouble to look for the
books in which, both the secret consultations, and the
abortive petition are contained ; and that he is so little
read in the large subject which he so daringly presumes
to undertake, as not even to have known of the exist-
ence of such books,—unless, indeed, he knowingly
suppresses their authority : in either case I do not
envy him his option between gross ignorance, and
deliberate falsehood
In the charge relating to Nuncomar, as in other
charges, he has gathered his materials chiefly from the
reports of hostile committees of the House of Commons,
which were dictated by Francis, and adopted by Burke,
into whose mind Francis had infused his venom; from
Annual Registers, which were written under the imme-
diate controul of thatrash and misguided statesman; from
parliamentary speeches, rich in eloquence, but poor
in fact; and, most of all, from Mr. James Mill's
one-sided and theoretical history of India. Indeed,
Mr. Macaulay has, in most cases, done little more than
strew the flowers of rhetoric over the dry dull prose of
Mr. Mill; he has, in no one particular, endeavoured
to trace this un-British historian of British India to his
authorities; he has never taken the pains to discover, by
reading and research, whether the dicta which Mr. Mill
delivers, with so much starch and sententious brevity, be
really solemn truths, or falsehoods cloaked in mock
solemnity. What confidence, then, is to be reposed in
an author of so little research, who, though pretending
to write biography and history, is careless of his facts,
and only solicitous about his style 2 Is it to be endured,
that a wretched sophist like this, should, with his un-
TO RESPITE NU N COMIA.R. 101
hallowed defamation, harrow up the feelings of the living,
and desecrate the memory of the dead 2
But if Mr. Macaulay has nothing to say touching
Nuncomar's petition to the Supreme Council, and the
strange method which General Clavering pursued in
regard to that petition, he is very eager to show that
the Supreme Court, who had received no petition, and
who knew of none, ought to have respited the convict.
In attacking the reverend biographer of Warren
Hastings with his usual virulency, and in dealing out
wholesale accusations of ignorance, and negligence,
which ill become a writer so negligent of facts, and so
ignorant of Indian affairs as he himself is, Mr. Macau-
lay says,
“Mr. Gleig is so strangely ignorant as to imagine, that the
judges had no further discretion in the case; and, that the
power of extending mercy to Nuncomar resided with the
Council. He therefore throws on Francis, and Francis's
party, the whole blame of what followed”—i.e. the execution
of the prisoner.”
Now, in one sense, Mr. Gleig is wrong in assuming
that the Court could not respite the prisoner; but in
another sense, he is right: the Act and Charter, or let-
ters patent, gave the power of respite not absolutely,
but conditionally. It required the Court to state the
reason for granting a respite. Without a reason no res-
pite could be granted. Therefore, all that Mr. Gleig
means to assume is, that the judges being unable to find
any good reason why the prisoner should be respited,
had no option, unless the jury or the Supreme Council
had interfered.
* “We should have thought,” continues the right honourable reviewer,
“that a gentleman who has published five or six bulky volumes on Indian
affairs, might have taken the trouble to inform himself as to the funda-
mental principles of the Indian government.”
I should have thought that this bitter censor of other men would have
taken that trouble,_that he would, at least, have acquainted himself with
the meaning of the Regulating Act, the letters patent, constituting the
Supreme Court, and the Statutes and Charters of George I., and George II.,
—I should have thought a gentleman sent out to India to compile laws
for the country, should have had the habits and accuracy of a lawyer,
with such a share of legal knowledge and experience, as to have made it
impossible for him to declarethat he was no lawyer; I should have thought
that a Member of Council, after residing some five years in India, would
have known something about Indian affairs, and would have left behind
him at Calcutta something to tell that he had been there.
ºf See ante p. 42.
1 ()2 REASONS FOTR NOT
“The Council,” says Mr. Macaulay, with far greater
inaccuracy than that which he fancies he has detected in
Mr. Gleig, “ had, at that time, no power to interfere.”
Not so : for at that time, the Council had the power,
and might have interfered; but not only did it not inter-
fere, but, through Francis, Clavering, and Monson, pre-
vented an interference in favour of the prisoner. Upon
this point, Mr. Macaulay is pleased to remember, that
Sir Elijah Impey did not stand alone, and that he had
colleagues, for he speaks of “the judges’ collectively.
Yet, immediately afterwards, as if to retract the con-
cession, he returns to the singular number, and im–
plies a single responsibility in my father. He says,
“That Impey ought to have respited Nuncomar, we
hold to be perfectly clear.” And again, “a just judge
would, beyond all doubt, have reserved the case for the
consideration of the sovereign. But Impey would not
hear of mercy or delay.” Why this return to the sin-
gular number 2 Why Impey alone 7 Could Impey be
an unjust judge, and Chambers, Lemaistre, and Hyde,
be just ones 2 Could Impey, of himself, refuse to hear
of mercy or delay ? Was he the whole Court 2 Were
his three colleagues absent, or asleep, or deaf, or dead 2
If a petition for a respite had been presented, to whom
would it have been addressed ? Not to the Chief Jus-
tice solely and singly; but to the Chief Justice, and
judges of the Supreme Court all together; and if such
petition had ever been sent, all the four judges must
have answered it. But neither Sir Elijah, nor the other
three judges, ever heard of any petition or application
for mercy or delay, simply because none were ever pre-
sented to them.
Even his light dramatic reading might have informed
the right honourable reviewer and essayist, that there
are certain things impossible to sense. Lord Burleigh,
in “The Critic,” was a great man, and a keen one, yet
he could not see the Spanish fleet because it was “not
in sight.” So neither Sir Elijah Impey, nor any one of
the three puisne judges, could “hear” of mercy or delay,
because the words were never uttered.
But, to be serious. My father in his convincing and
triumphant defence on the Nuncomar charge, before the
House of Commons,—and that defence was triumphant,
GRANTING A RESPITE. 103
and is convincing to every enlightened and honest mind,
albeit Mr. Macaulay knows nothing about it, or rather
chooses to suppress any such knowledge,_plainly states,
how the Court could have shown no reason—which, by
the Charter, they were obliged to do—for respiting the
prisoner. That passage I shall hereafter give at full
length. Here I would only ask, what was there in the
case of Nuncomar, primá facie, to recommend him to the
indulgence of the Court as an object for a respite? Was
it to be found in his evil reputation, in his universally
infamous character, in his malignity, avarice, and dis-
loyalty 7 Was it to be found in his cheatings, swindlings,
forgeries, and false-witnessing 2 Or in his recent con-
spiracy against the Governor General? Or in his remoter
perfidy which contributed to the horrors of the Black
Hole, with the execrable murder of one hundred and
twenty-three British subjects 7
Let it, too, be noted on the other hand, that many
weighty causes suggested themselves for carrying the
sentence into execution. There was the prevalence of
the crime of forgery among the natives, and the
common belief, however erroneous, in those days, that
the penal laws might check it; there was the appre-
hension, lest the natives might understand a respite as
tantamount to a reprieve or an acquittal, and so treat it
as a mockery or denial of justice; there was the chance,
or rather the certainty of the imputation of fear under
a threat of rescue; and of weakness and dereliction of
duty; nay, of bribery and corruption: for it is a fact,
that one of the judges (Lemaistre) was audaciously
offered a large sum of money to save the life of Nun-
COIIla.I’.
Either of these conclusions might have stood much
in the way of that security and reliance on the newly-
established Court, which were essential to its future
authority. It could scarcely be expected that a criminal
of Nuncomar's rank would be speedily brought up for
judgment; and if this conspicuous malefactor were
respited or reprieved, how could the extreme penalty of
the law be inflicted on a humbler delinquent 2 If a
respite or reprieve had been granted, the ground of
attack might have been changed, and Francis, in after
years, might have taxed my father with having trafficked
in justice.
104 EVI DENCE () ["
If, at this crisis, India had been lost by the temerity
of Francis and his adherents, instead of being saved, as
it was, by the policy of Mr. Hastings, aided by the
firmness of the Supreme Court; what then would have
been the predicament of my father ? Can any reason-
able man, with all these facts before him, doubt for a
moment, that the loss would have been shifted from the
shoulders of the majority of the Council, and the catas-
trophe imputed partly, if not wholly, to the timidity, or
corruption, of Sir Elijah Impey; and that, in 1788, or
long before, he would have had to plead at the bar of
the Commons, against the reverse of those charges
which were then brought against him
I have said that, from first to last, the hoary sinner
Nuncomar, looked to the majority for security. Nor
have I hazarded this assertion, as Mr. Macaulay hazards
his, for I have evidence taken upon oath to support it.
Matthew Yeandle, the jailer at Calcutta, swore,
“That the said Maharajah Nuncomar always conceived
hopes of being released, even to the day before his eaecution,
when he wrote a letter to the Council for that purpose; and
that messages were continually sent to him by General Cla-
vering and Colonel Monson, and answers returned. And this
deponent further said, That he always understood, both
from the said Maharajah Nuncomar and his attendants, that
it was from the influence of General Clavering and Colonel
Monson that he eanected his enlargement.”
I have likewise said that great kindness and indul-
gence were exercised towards Nuncomar while lying in
prison, and that this was done by order of the Court.
For this assertion, too, I have evidence—and, in such a
case, the best that could be desired. Matthew Yeandle,
keeper of the public jail of Calcutta, makes oath—
“That on the 6th day of May, Maharajah Nuncomar was
taken up on a charge of forgery, and committed by Mr. Justice
Lemaistre and Mr. Justice Hyde to the custody of this depo-
ment. And this deponent further saith, that he quitted his
* This affidavit was sworn at Calcutta, on the 18th of January, 1776.
It is to be found in the Appendix to the Report of the Committee of the
House of Commons; to whom the petition of John Touchett, and John
Irving, was referred. It is also given in the Appendix to my father's
defence before the Commons (p. 180), and in several other publications, at
wone of which Mr. Macaulay has ever looked, unless he has wilfully sup-
pressed his knowledge of them all.
MATTHEW YEAN DILE. 105
bedroom in order to accommodate the said Maharajah Nun-
comar therewith, and gave up the use of an outer room
thereunto adjoining, for the accommodation of the attendants
of the said Nuncomar. And this deponent further saith,
that the said rooms are detached from the other part of the
jail, and have no communication whatsoever with the felons or
debtors therein confined. And this deponent further saith,
that he was present when the said Maharajah was arrested ;
and that the room wherein he was confined is a larger and
much better room than that from whence he was taken, and
better than any of the rooms in the house of the said Maha-
rajah Nuncomar. And this deponent further saith, that he
received repeated directions from the CHIEF JUSTICE to treat
the said Nuncomar with all possible tenderness, and to grant
him every accommodation and convenience his situation would
admit. And this deponent further saith, that neither before
nor after his condemnation, were irons affixed to his feet, and
every person who was desirous of seeing him had free access
at all times of the day; and that the said Maharajah Num-
comar was visited during his confinement by Captain Webber,
one of the aides-de-camp to General Clavering, and Mr. Ad-
dison, secretary to that General, and the two Mr. Fowkes's :
and that Mrs. and Miss Clavering, and Lady Ann Monson,
sent their compliments to, and inquired after the said Maha-
rajah Nuncomar.”
During the first days of his captivity, Nuncomar re-
fused to take any food in public; and pretended that he
could not, and did not, take food in any other way. This
was a stale trick, but for a moment it seems to have
deceived the jailer. This deponent said,
“That he did not see any alteration whatsoever, in his
countenance, speech, or appearance, until the evening of the
10th of May,” when the said Maharajah Nuncomar altered
the tone of his voice, and spoke so low, that he could scarcely
be heard, and seemed so faint, that he could not lift his
head from the ground. And this deponent further saith,
that the CHIEF JUSTICE sent a physiciant that evening to
visit the said Maharajah, and sent for him, the deponent.
And this deponent further saith, that at the time he was at the
house of the Chief Justice, Mr. Justice Lemaistre and Mr.
Justice Hyde were there; and this deponent heard the CHIEF
JUSTICE desire Mr. Justice Lemaistre (under whose warrant,
and that of Mr. Justice Hyde, the said Nuncomar was con-
* The 10th of May was the fourth day after his arrest.
f Mr. Murchison.
106 EVIDENCE OF MIR. M UROHISON
fined) to consent that the said Maharajah might be permitted
to go to the outside of the said prison gate. And this depo-
nent further saith, that the said Mr. Justice Lemaistre was
very unwilling so to do, and alleged that he considered the
conduct of Maharajah Nuncomar merely artifice; and that
he thought such order would be illegal, and therefore could
not join in it. And this deponent further saith, that he re-
ceived directions for permitting the said Maharajah Nuncomar
to go to the outside of the said prison gates, as he had re-
quested, about ten o’clock of the night of the said 10th of
May, and immediately communicated the same to the said
Maharajah Nuncomar. And this deponent further saith,
that the said Maharajah Nuncomar did not avail himself of
such permission until the next day, between the hours of
ten and twelve in the forenoon ; and that he walked from
his said room to the outside of the said prison, without any
assistance, and did not appear any ways exhausted, and had
recovered his speech, and talked in the same tone of voice
that he usually did. And this deponent further saith, that
the said Maharajah Nuncomar was, during the said five days,
frequently in private with only his own servants, and had
water taken to him, but that he did not see any food con-
veyed to him. And this deponent further saith, that the
usual diet of the said Maharajah Nuncomar was sweetmeats,
which might have been easily conveyed to him without the
knowledge of this deponent.”*
To this I may add the affidavit of Dr. Kenneth Mur-
chison himself.
“This deponent, Kenneth Murchison, surgeon, maketh
oath, and saith, that on or about Wednesday, the 10th of
May, 1775, Sir Elijah Impey, Knight, requested him, this
deponent, to go to the jail in which Maharajah Nuncomar
was then confined, and to report to him, the said Sir Elijah,
the state and condition of the health of the said Nuncomar ;
that in consequence of the said request, he, the said de-
ponent, went to the said jail, where he found the said
Nuncomar extended on the ground, in a seemingly weak and
helpless condition ; that the said Nuncomar—as the inter-
preter told this deponent—declared that he had received no
manner of sustenance since the Saturday next preceding that
day; and that the said Nuncomar spoke in a low and feeble
voice. And this deponent further saith, that he felt the pulse
of the said Nuncomar, that his pulse appeared to him not
* Affidavit of Matthew Yeandle. Appendix, part 3, No. 7, of the
printed Defence, p. 180, and Appendix No. 2 to the Report of the Com-
mittee on Touchett's Petition.
A N D M R. TOLFREY. 107
weak, but regular, and not as he should have expected in a
man who had fasted so long. And this deponent further
saith, that he does not mean to say that he had not fasted
that length of time ; but if he had really fasted so long, it
was an extraordinary case, and inconsistent with the symp-
toms which, in the best of his judgment, he believes must
have appeared. And this deponent further saith, that on his
return to Sir Elijah, he made his report to the effect above-
mentioned ; and further acquainted the said Sir Elijah, that
if, in fact, he had not eat or drank during the time above-
mentioned, it was necessary he should take sustenance before
the next morning.”*
Let us now hear the affidavit of the under-sheriff,
who performed most of Sheriff Macrabie's duties for
him.
“Samuel Tolfrey, of Calcutta, in the kingdom of Bengal,
gentieman, maketh oath, that he, this depoment, was under-
sheriff of Calcutta aforesaid on the 6th day of May last, and
committed Maharajah Nuncomar to the public jail of Cal-
cutta aforesaid, by virtue of a warrant for that purpose,
under the hands and seals of Mr. Justice Lemaistre and Mr.
Justice Hyde. And this deponent further saith, that on the
10th of the said month of May, he was informed by Matthew
Yeandle, keeper of the said jail, that the said Maharajah
Nuncomar was expiring, owing to his having refused to take
sustenance in the said jail, in consequence of which informa-
tion, he, this deponent, went to the said jail, and found the
said Maharajah Nuncomar extended on the floor; that he was,
or pretended to be, unable to lift up his head, and spoke in
so faint a voice, that this deponent was under the necessity
of kneeling close to the said Maharajah Nuncomar, in order
to distinguish what he said. And this deponent further
saith, that he saw the said Maharajah Nuncomar two or three
times between the time of his confinement, and the said 10th of
May, and that, till that evening, he was firmly persuaded
that the refusal of the said Maharajah Nuncomar, was only
a pretence to procure his enlargement. And this deponent
further saith, that he verily now believes, that the illness of
the said Maharajah Nuncomar, on the said 10th of May, was
mostly affected.”f
After making this affidavit the same witness said,
“I went with Mr. Jarretti to the house of the Chief
* Affidavit, sworn to at Calcutta, on the 18th of January, 1776. Ibid.
† Affidavit of Samuel Tolfrey, the under-sheriff. Ibid.
† Mr. Jarrett was attorney for the prisoner.
108 M ISREPRESENTATION OF
Justice, and represented the weak and dangerous situation
the prisoner appeared to be in. The Chief Justice appeared
much distressed at the account, and immediately sent Dr.
Murchison to the jail, and sent for the jailer. He also sent
for Mr. Justice Lemaistre and Mr. Justice Hyde. It was
late at night. They came ; and, after some conversation, the
particulars of which I do not recollect, the jailer received in-
structions from the Chief Justice immediately to allow the
prisoner to go on the outside of the prison, properly secured,
as he had requested. I do not recollect being present on any
other applications made by Mr. Jarrett.”
I could produce more evidence of the same sort to
prove the great humanity with which the convict was
treated in his prison, and the care and anxiety of Sir
Elijah in this particular; but I have already produced
enough.
There was no indecent hurry in the execution. There
was abundance of time allowed for the getting up and
presenting of petitions if any party had been disposed
to get them up. Twenty days intervened between the
prisoner's sentence and his death. He was hanged on
the morning of the 5th of August; and the execution
passed off not only without any riot or attempt at
rescue, but even without any visible excitement among
the natives. Of this I have been well assured by many
persons who were present or who were in Calcutta on
that day; and there is ample testimony, taken upon
oath, to prove that the native population regarded the
execution with great indifference. But this sober and
unexciting truth does not suit Mr. Macaulay, any more
than it suited Philip Francis, and the orators he inspired,
and the writers he furnished with their data. He and
they were determined to make a moving scene. Mr.
Macaulay, indeed, surpasses himself in his own parti-
cular line, while describing the execution. He says,
“The excitement among all classes was great. Francis,
and Francis's few English adherents, described the Governor
General and the Chief Justice as the worst of murderers.
Clavering, it was said, swore that, even at the foot of the
gallows, Nuncomar should be rescued.”
But how did Francis and his adherents describe the
three other judges who were as much concerned in the
trial as Sir Elijah Impey ! And how did they describe
NUNCOMAR's ExECUTION. 109
that jury of twelve respectable Englishmen who had
returned the verdict of guilty, with the full knowledge
that such a verdict must be followed by the sentence of
death ? In reality, neither Francis nor his faction had
yet ventured to give any such description of the
Governor General and the Chief Justice. Mr. Ma-
caulay anticipates their malice and slander. As usual,
he is spinning fine phrases without thinking of facts
and dates. Francis and his friends allowed many years
to pass before they dared to describe Mr. Hastings and
Sir Elijah Impey as “the worst of murderers.” These
odious epithets they never hazarded in Calcutta, where
they would have been laughed at ; but in England,
where people were unacquainted with the facts, and
careless about the veracity of reports. When these ex-
pressions began to be uttered, it was in a secret, cautious,
and cunning manner ; and at first more in the way of
insinuation than by direct statement. The rearing of
the monstrous fabric of calumny and falsehood occupied
the genius of Francis for fourteen long years. When
the first foundation stones were laid, it is probable that
the architect himself did not know either to what a
height he would raise his edifice, or how enduring it
would prove; so strictly have both he and Mr. Ma-
caulay—those “great anonymous writers”—observed
the rules of their prototype, Don Basile !” He did a little
at a time—parva metu primo—and then, watching
the effects of that little—moa, sese attolit in auras ingre-
diturque: solo, et caput inter nubila condit. True, he
began very early to make insidious minutes in Council;
but those were kept secret; and on the day when Nun-
comar was hanged, he would no more have thought of
describing the Governor General and Chief Justice as
“the worst of murderers,” than he would have thought of
proclaiming George the Third as a usurper and tyrant in
the public places of Calcutta. Even if he had then com-
plained of the execution as harsh, every man might
have asked him, Why, then, had he and his majority of
Council permitted it ! why had they not stayed execu-
tion and insisted on a reprieve 2 Why keep back his
petition till after he was hanged, and then order it to be
burned as a libel ?
* See ante p. 32.
110 MISREPRESENTATION OF
But to return to the last sentence we have quoted—
Where did Mr. Macaulay ever hear or read that
General Clavering swore Nuncomar should be rescued
even at the foot of the gallows 7 Where did he find
this vow proceeding from a man, who had kept Nun-
comar's petition close until several days after the Rajah
was no more, and who had declared before the Council
that he was resolved not to make any application what-
ever in the Rajah's favour? I have read until my eyes
have been nearly blinded, and I have employed younger
and keener eyes than my own in reading whatever
relates to this case; not merely a few books on one side,
like the right honourable reviewer, but many books,
folios and quartos, pamphlets, and papers, on both sides
of the question, and I have not been able to find, or
to get indicated to me, any passage containing this rash
vow of General Clavering. It may, indeed, be assumed,
that the parliamentary orators and impeachment ma-
nagers were not very scrupulous as to what they
affirmed; but I cannot find even in their speeches and
reports any allusion to this vow. I and my friends may
have been unfortunate in our research ; but I am rather
inclined to believe that this bold allegation proceeds
solely from Mr. Macaulay's own fertile imagination.
In all his articles and essays he seeks to dramatise the
characters he introduces. This is all very well, provided
that truth or verisimilitude be not altogether sacrificed to
theatrical effect. It is, doubtless, an effective style of
writing, and after effect Mr. Macaulay is always aiming.
He especially dramatises the character of Clavering;
and as this gentleman was a soldier and a general,
quick in speech and hot in temper, he is constantly
producing him, in the guise and attitude of
“The Earl of Chatham with his sword drawn,”*
or of those precious conventionalities, the hot old general
officers that figure among the dramatis personae of
* “The Earl of Chatham with his sword drawn,
Stood waiting for Sir Richard Strachan ;
Sir Richard eager to be at 'em,
Stood waiting for the Earl of Chatham.”
Let me not be thought to trifle with a grave and important subject, if
I treat these exaggerations with contempt. There is no levity in derisive
indignation : ridentem dicere verum fortius ae melius—when we have to
NUNCOMAR's ExECUTION. | 1 |
Morton, Reynolds, and other playwrights, who had
possession of our stage in the earlier part of the
present century. Mr. Macaulay, knowing nothing
about the petition of Nuncomar, nothing about the
minutes of Council, nothing about Clavering's de-
claration, puts the General into a towering passion,
and makes him talk nonsense about the foot of the
gallows, because Nuncomar is going to be hanged.
I shall show, in another chapter, the sort of authority
Mr. Macaulay has for the incidents he introduces into
his terrible and awful description of the scene which
followed the execution; the grief and horror that were
on every face; the cries and contortions of the natives,
which appalled the European ministers of justice, with-
out producing the slightest effect on the iron stoicism
of the prisoner; the howl of sorrow and despair that
rose from the innumerable spectators as the drop fell ;
the hundreds that turned away their faces from the
polluting sight, fled with loud wailings towards the
Hooghley, and plunged into its holy waters, as if to
purify themselves from the guilt of having looked on
such a crime, &c. Those who were in Calcutta, saw
nothing and heard nothing of the sort. Yet Mr.
Macaulay is not without a groundwork, such as it is,
for his picture. That ground-work exists in a letter
which was never seen or heard of until twelve or
thirteen years after the execution; when it was pro-
duced by the enemies of Sir Elijah Impey, to strike
the parliament and people of England with horror.
That letter purported to have been written on the spot,
and at the time of the execution, by Francis's brother-
in-law, Sheriff Macrabie, but bore internal evidence of
having been written, or dictated, or retouched, by
Francis's own skilful and experienced hand.
deal with the trickery of a quack, all reasoning is thrown away. Where
subtle fallacies require detection, or ungrounded assumptions can be met
by demonstrative proof, neither logic nor evidence shall be wanting ; but
when Mr. Macaulay presumes, upon his reputation for sophistry, or sarcasm,
or even on mere book-learning, and a knack at writing to blind the eyes
of plain common sense, he will be disappointed, and find himself, possibly,
not invulnerable by weapons like his own, though unenvenomed by fraud,
ribaldry, or malevolence, unworthy the education of a scholar and a gen-
tleman. A rhetorician may be exposed by a syllogism; a false informer
by authenticated facts; but for a vain impostor the best and most cutting
punishment is laughter.
112 MISREPRESENTATION OF NUNCOMAR’s ExECUTION.
I must do Mr. Macaulay the justice to say—nihil
tetigit quod non ornavit—he has superadded ornaments
and flourishes all his own. But pity is it, that his
rhetoric should for ever be digging pitfalls for his
veracity.
“ Nihil est tam inhumanum, quâm eloquentiam a
naturâ ad salutem et conservationem datam, ad bonorum
pestem perniciemgue convertere.”—Cicero Offic. 2.
C H A PTE R. W.
SECRET PROCEEDINGS OF THE MAJORITY IN COUNCIL–THE
JUDGES SEND A COPY OF NUNCOMAR’S TRIAL TO ENGLAND
BY ALEXANDER ELIOT HASTINGS'S SCHEME OF ADMINIS-
TRATION.—SIR ELIJAH IMPEY'S LETTERS ON THE CORRUP-
TION AND WIOLENCE OF THE PROVINCIAL COURTS, ETC.
NUNCOMAR having been hanged, and the despotic
majority of Council having done nothing to prevent it,
and General Clavering having treated the only petition
that was ever presented, in the strange manner which
has been related, that majority lost little time in turn-
ing the catastrophe to the purposes of their own intrigues
and jealousies. Their first steps, as I have hinted in
the preceding chapter, were secret and cautious.
The first digging of the mine in which the train was
to be laid, and to be crammed with the combustibles
of so many years accumulation, was in the secret de-
partment of the Council at Calcutta. Not being able
to make anything of the conspiracy against the Go-
vernor General, after it had been denounced to the
Supreme Court, they considered the opportunity very
favourable for asserting that the accusers and witnesses
against Hastings, were all scared away by the death
of the Rajah; although, in fact, they had been put to
flight months before that event.
On the 15th of September, one month and ten days
after Nuncomar's execution, Clavering, Monson, and
Francis, entered a minute to this effect,
“After the death of Nuncomar, the Governor, we believe,
is well assured that no man, who regards his safety, will ven-
ture to stand forth as his accuser.
I
114 SECRET PROCEEDINGS
“On a subject of this delicate nature, it becomes us to
leave every honest man to his own reflection. It ought to be
made known, however, to the English nation, that the forgery
of which the Rajah was accused,” must have been committed
several years; that in the interim he had been protected and
employed by Mr. Hastings; that his son was appointed to
one of the first offices in the Nabob’s household, with a
salary of one lac of rupees; that the accusation, which ended
in his destruction, was not produced till he came forward,
and brought a specific charge against the Governor General,
of corruption in his office.”
Still proceeding pian piannino, and eschewing all
mention of, or allusion to the judges, the said three
Members of Council, entered another minute on the
21st of November, being three months and sixteen days
after the execution of Nuncomar.
“It seems probable,” says this second minute, “such em-
bezzlements may have been universally practised. In the
present circumstances it will be difficult, if not impracticable,
to obtain proofs of the facts. The terror impressed upon the
minds of the natives, by the execution of Maharajah Num-
comar is not to be effaced ; for though he suffered for the
crime of forgery, yet the natives conceive he was executed for
having dared to prefer complaints against the Governor
General.
“This idea, however destitute of foundation, is prevalent
amongst the natives, and will maturally deter them from
making discoveries, which may be attended with the same
fatal consequences to themselves.
“Punishment is usually intended as an example, to prevent
the commission of crimes; in this instance, we fear, it has
served to prevent the discovery of them.”
This is a tolerable fair specimen of the Junius style
of innuendo. Quite intelligible though very cautious.
It is admitted that the Rajah had suffered for the proved
crime of forgery, and that the contrary idea is destitute
of foundation : no personal opinions are expressed,
no European is implied to believe a rumour—in which,
in fact, none seem to have believed at that time—and
everything is thrown upon the poor ignorant and natu-
rally suspicious natives. But the drift is evident enough.
* Accused why he had been accused, indicted, tried, convicted, and
hanged for it, and all with the bene placet of these writers themselves
of insidious minutes.
OF THE MAJORITY. 115
Nuncomar, while living, had utterly failed in proving
his charges against Warren Hastings: if the majority
had fancied he could ever have made good those charges,
they might, and, in all probability would, have kept
him alive. But he was dead—and because they had
found him useless, they had done nothing to save him—
and now they were at liberty, by slow degrees, to make
the world believe that many mysteries were buried with
him; and that the dread of encountering the like fate
prevented other Hindus from coming forward as wit-
nesses against the Governor General. In other words,
Francis hoped to make a great deal more of the
dead Rajah than he had been able to make of the living
one. The device was every way worthy of the craft
and malignity of Junius. It was calculated to take
with the unreflecting multitude. And so many years
afterwards, when it was brought forward as an ostensible
charge in parliament, and when Hastings had been
removed from power and from the country, how difficult
must it have been for him to disprove such an allegation
By degrees the dark hints of King Francis” and his
majority became bolder, and their insinuations more
plain ; yet never in India did they venture to describe
the Governor General and Chief Justice as the murderers
of Nuncomar—as Mr. Macaulay makes them appear to
do on the day of the execution—nor even covertly did
they yet dare to assert that the judges, or any one of
them, had murdered the Rajah for accusing Mr. Hastings.
They indeed laboured—unhappily, not without success
—in propagating unwarranted reports in England,
where people were so little qualified to judge of them.
Francis — nequid inausum aut intractatum sclerisve
dolive fuisset—left not a stone unturned, nor an effort
untried, to bring down odium both on the personal
character and on the government of Hastings, after
whose post of pre-eminence he already hungered,
with an appetite which never left him; for even
in his old age, when he had been long removed
from India, and when he had sunk into comparative
insignificance at home,'t he still aspired to be Governor
General of India. When Hastings so emphatically
* See ante, p. 64.
f See Lord Brougham's Public Characters.
I 2
116 SEC RET PROCEEIDINGS
said “Francis writes,” he told nearly the whole history
of the man while at Calcutta; except when engaged in
certain licentious pursuits, which I shall be forced to
allude to in some detail, his keen pen, with its ink of
gall, can hardly ever have been out of his hand.
Clavering was no great penman, nor was Monson;
but Junius, who had made himself what he was by
writing—Junius, who had obtained ten thousand pounds
a-year by libelling—could write for them all; and fre-
quently, as I believe, he wrote what their sense of
honour would never have allowed them to approve of,
if it had been put under their inspection, or borne their
signature, before being sent to England. Not a ship
left the Hooghley for the Thames without a ponderous
packet from Francis. Much of the matter was circu-
lated among private or literary and political friends of
the writer; not a little of it got anonymously into print,
while the information derived from it, and the poignant
style in which it was written, gave at once matter and
inspiration to whole pages, or, at times, whole chapters,
of the Annual Register; to which, mainly, people at
home referred, for their information about India.
Moreover, the despatches of the majority to the secret
committee of the Court of Directors—in which Hastings
had always some bitter enemies, and in which there
arose adversaries no less violent against my father, so
soon as the Chief Justice and the Court interfered with
the high-handed proceedings of the Company’s revenue-
collectors—teemed with strictures and insinuations
against the almost superseded Governor General,
and with absolutely sickening encomiums of the wisdom
and justice of their own administration. Especial care
was however taken, for a time, not to attack the Su-
preme Court on any vital point. During the year which
immediately followed the execution of Nuncomar, and
for many years after that event, there was, in these des–
patches at least, no breath of the mighty scandal.
That was kept in reserve for future operations. In the
meantime, even Francis himself was compelled to
admit that the Court was an object of admiration and
reverence to the whole Bengal community; and that the
judges were officially, as well as personally, popular in
Calcutta; and, to such an extraordinary degree, that it
OF THE MAJORITY. 117
looked like an infatuation in the jaundiced vision of
Junius.*
It was with elaborate skill, and wonderful perse-
verance, in malice and innuendo, that Francis prepared
the public mind in England for unjust and injurious
impressions of the spirited conduct of the Supreme
Court. From 1775 to 1781 he was constantly weaving
his dark and complicated web. For the far greater part
of this time there was no possible opportunity of an-
swering him, or bringing him to any account for his
slanders: they appeared anonymously, or with various
fictitious names on the title-pages. To the unin-
formed public, it seemed to be a war waged by many
against the “tyrants of the East;” but all this time
Francis was the sole belligerent; or, if he did not write
every attack with his own hand, he dictated the subject-
matter; or he gave the theme, and infused the spirit of
his own malevolence into the breast of some one of the
many needy and unscrupulous pamphleteers of that day.
Towards the end of the period we have just named,
when the scheme for impeaching Warren Hastings was
almost matured, and when Francis was, in a measure,
compelled to submit to the publication of minutes and
other papers, with his name affixed to them, more than
one party came boldly forward to meet the insidious
charges, and to denounce the evil motives of this friend
to humanity, and reformer of abuse ! A spirited sea
captain—Captain Joseph Price—who had been taken into
employment by Hastings during the wars in India, who
had rendered very important services during that mo–
mentous struggle, and who had been described by
Francis himself, in a minute of Council, as a brave and
able officer, drew down upon his head a large share of
invective, apparently for no better reason than because
he thought Hastings a greater man than Francis.
While yet in India, Captain Price learned that Francis
had entered something very defamatory of him in the
minutes of Council. Forthwith he had a meeting with
Mr. Shore, f' at that time a friend of Francis, who
offered to wait upon the latter for an explanation.
Through Shore, Captain Price received Francis's answer,
* Francis's Pamphlets.
f Afterwards successively Sir John Shore and Lord Teignmouth.
118 DEFAMATORY MINUTES
that the animadversions had been retracted on the re-
presentations of Hastings and other members of Coun-
cil. “No such thing,” continues the frank sailor;
“they were permitted to be entered up fair on the
Company’s records, and three months afterwards were
transmitted to Europe l’” The captain, in the interval,
had left India for England. But when he took up the
pen in the course of the year 1781, to refute some of
the accumulated slanders which more particularly re-
garded himself, the Captain thus expressed his scorn :
“The insidious malice of a man, base enough to assert a
falsity with confidence, but not brave enough to defend
it; who, when he is taxed on the spot by the person he
injures, retracts his falsehoods, and, when that person
leaves the country, re-asserts them to the Court of
Directors ſ”. The captain takes a short spirited review
of Francis's character and conduct, speaking of “his
strong bias to inveterate calumny, and of that cowardly
fear of consequences,” which made him always proceed
with such cautious circumspection. Captain Price con-
tinues thus:–
“This may not be an improper place to inform others, as
well as yourself, how some of your dark proceedings have
come to light.
“Towards the end of the last, and the beginning of the
present year, a number of anonymous pamphlets, under various
denominations, were published on India affairs declared to be
made up of fair and just extracts from the proceedings of the
Governor General and Council of Bengal. . . . . . In
these proceedings the most flattering encomiums are lavished
on the abilities, the integrity, and the unwearied application
of Mr. Philip Francis; and the utmost scurrility and unjusti-
fiable abuse vented on the Governor General. . . . But
I found no kind of difficulty in admitting into my mind, that
you might have been the man, who, contrary to your oath,
and, perhaps, to your allegiance, furnished the materials for
the above publication. Your general stamp of character, your
notorious personal enmity to the Governor General, and your
impatient ambition to obtain, what I think you never will be en-
trusted with—the Government of Bengal—too plainly marked
the man who was capable of ushering into the world, at the ex-
pense of a breach of the first moral obligation, productions in-
* “A letter from Captain Joseph Price, to Philip Francis, Esq., late a
member of the Supreme Council at Bengal.” London, 1781.
ON CAPTAIN PRICE. | 19
famous in the extreme; tending to vilify the character of a
man whose abilities you envy, and whose integrity you have
not the virtue to imitate. . . . . . I know your abili-
ties and great dexterity in the arrangement of words, for the
purpose of making the worse appear the better cause. Much
do you owe to the nation, and to the East India Company, as
well as to individuals, for the time you have misspent, and the
paper you have wasted, in entering up unsupported assertions,
mysterious allusions, and barbarous insinuations against the
honour of the Company’s old servants on the face of their
consultations, where they will for ever remain monuments of
i. disingenuity of your disposition, and the depravity of your
eart.”
This was certainly strong writing, and the Captain's
rhetoric, unlike that of Francis, and his admirer Mr.
Macaulay, was supported by truth. But what could
Captain Price, and one or two other men like him, do
against the great Junius, and the formidable com-
bination he headed ? That combination against the
Governor General and the Chief Justice of India, was
the more formidable from the circumstance that Burke,
who entered heart and soul into it, united to his
eloquence and genius, a thorough conviction that all
things in India had been cruelly mismanaged, and
that Francis was not a selfish and malignant false
witness, but a true and honourable accuser.
Against so many pens and tongues which were now
employed all on one side, Captain Price could have no
chance of victory. His was but a single pamphlet,_
the name of their's was Legion. Besides, Francis had
so long had the field to himself, and had so perse-
veringly and cunningly constructed his works for
assault and for defence, that there was no dislodging
him by a coup de main. The public mind had been
abused during six years: it must take at least six or
more to disabuse it. People had read only one story,
and they had read it so long, and—as they were made
to think—upon so many concurrent authorities, that
few were disposed to entertain any doubt as to the
correctness of their impressions. Francis too, had a
face of bronze: instead of being disturbed and abashed
by any detection of falsehood in his statements, he
only promulgated new fictions with a bolder face.
Captain Price said to him, “Your whole pursuit, sir,
120 CHARACTER OF
has been to assert new falsehoods, and not to lose time
in defending old ones.” ”
Though far from possessing a knowledge of the
extent to which the majority of the Council were
carrying their defamatory processes, Sir Elijah Impey,
a few months after the execution of Nuncomar, had
good reasons to suspect that they were remitting to
England very unfavourable and incorrect accounts of
the whole of that affair. And hereupon, he and his
learned brethren of the bench, resolved to transmit by
a safe hand, an authenticated copy of the Rajah's
trial, &c., and to have the same printed and distributed
in England. With such a document before them, it
was thought that no enlightened public men, or indeed
any one man in his senses, could be duped and excited
by such misrepresentations; but, alas, in this expecta-
tion the judges were deceived.
Mr. Alexander Eliot, a younger brother of that Sir Gil-
bert Eliot, who became my father's official accuser, and
one of the bitterest of his assailants in parliament, had
been living at our house in Calcutta, as a member of the
family, being treated by Sir Elijah as a son or younger
brother. He was equally dear to Warren Hastings;
who not only loved him for his amiable and attaching
qualities, but also prized him for his eminent abilities,
of which, though young, he had given abundant proof
in many difficult transactions. But Eliot was not
exclusively the dear friend of the Governor General and
Chief Justice: he was cherished and respected by all
classes, with the exception of Francis and his faction ;
and even they never hazarded a censure upon him.
There was probably not, in all Calcutta—where all
knew him—a single man, European or native, but loved
him.
As Alexander Eliot was going to England on affairs
of his own, as well as some particular business of the
Governor General, and as he had interpreted during the
whole of Nuncomar's trial, it was reasonably concluded
that he would be the best person to carry that trial, and
superintend the printing of it in London.
When, many years after, this question was put to
Samuel Tolfrey the under-sheriff of Calcutta—“What
* “A letter from Captain Joseph Price to Philip Francis, Esq.,” &c.
ALEXANDER ELIOT. - 12 |
was the general character of Mr. Eliot among the gen-
tlemen in Bengal 2 * Tolfrey replied,—“One of the
highest characters / ever knew a man to possess ; and I
believe the most deservedly and the most universally given.”
When he was asked—“From the idea you entertain
of the character of Mr. Eliot, do you think that if Mr.
Eliot had conceived the execution of Nuncomar was a
legal murder, that he would not have broken off all
connections with Sir Elijah Impey 2"–Tolfrey replied
with warmth–“Certainly ; I think Mr. Eliot would
not have undertaken to carry the trial home, if he had
thought that the Court had acted wrong in the course of
the trial; as I understand that the intention of sending
it by him, instead of trusting it to any other channel, was,
that he who had so complete a knowledge of the business,
might clear up any misrepresentation that should be made
concerning it.*
Many other witnesses, at different times, and in
different places, gave an equally decided testimony to
the honour and integrity of Eliot, and to the reasons
which pointed him out as the fittest person to be en-
trusted with the conveyance and publication of the trial.
The manuscript copy of that document, was not compiled
solely by my father: it was drawn up by Samuel
Tolfrey, by the order of all the judges, and with the
assistance of three of them. The materials for it con-
sisted of notes taken by the sheriff, and by the under-
sheriff; by the counsel for the prisoner, and by Mr. Eliot,
who had acted as interpreter; by the judges, and by one
or two other parties. All the judges, at different times,
looked over the trial while Tolfrey was writing; when
it was finished, it was sent round to the judges; and
the authority for publishing it was signed by all the
judges. I could give other evidence of these facts, but
the following will suffice to prove that the account of
the trial was to be considered as proceeding from all the
judges.
The first is a note addressed to the very respectable
man who published the trial.
* Appendix, Part 3, No. 7, to the Speech of Sir Elijah Impey at the bar
of the House of Commons, &c.”
122 coPY of NUNCOMAR's TRIAL
“London, May 3, 1776.
“Sir—When I quitted Bengal, Sir Elijah Impey, the Chief
Justice of Bengal, authorised me to say, that the trial of
Maharajah Nuncomar was drawn up from his and the other
judges' notes. I am, Sir, &c.,
“ ALEx. ELIOT.
“To Mr. Cadell, bookseller, Strand.”
The next note needs no introduction.
“Fort William, August 10, 1775.
“Sir—We give you full power and permission to print
and publish, if you think proper, the trial of Maharajah Nun-
comar, as authentic, from the copy which has been delivered
to you. “We are, Sir,
“Your most humble servants,
“ E. IMPEY,
“ RobT. CHAMBERs,
“S. C. LEMAISTRE,
“John HYDE.
“To Alexander Eliot, Esq.”
The following is one of my father's letters sent by
Alexander Eliot —
“I take the liberty of introducing Mr. Eliot to you in the
character of my friend. You would, no doubt, from your
connections, have been otherwise acquainted with him. He
is more intimately acquainted with the interest of the Com-
pany, the mode of transacting every department of their
business, the general policy of the country, and is better in-
formed of the nature of the transactions of the new adminis-
tration and their disputes, than any man you can converse with.
You will be satisfied of this from the first conversation you
have with him. He is a man of strict honour, and will not
deceive you in any particular. Though he is so young, you
will find he has a confirmed judgment; he is looked to as a
man of the first abilities in the settlement.
“I possibly may be affected in consequence of the unfortu-
mate divisions, which, I fear, must give the legislature and his
Majesty's ministers much trouble; no inconsiderable part of
which will, most probably, fall to your share. You will find
something must be done, or all the advantages that the nation
or the East India Company can expect from this country
must, in a very short time, be annihilated. I trust to our old
acquaintance and friendship, that you will endeavour to pre-
vent my character and fortune from suffering from secret
insinuations inserted in the public consultations of the Council—
SENT TO ENGLAN D. 123
which the members of it refuse to communicate—or from asser-
tions to my prejudice conveyed by private letters ; for, from
their conduct, though I have given them no cause of just pro-
vocation, I have everything to fear. If there should be occa-
sion, I trust you will order extracts of all such parts of the
consultations, as either respects me or the courts of justice.
“Mr. Eliot will give you full information of what has
passed. Though I feel myself personally much injured, and the
behaviour of the Council with respect to the Court most highly
reprehensible, I have forborne complaining to his Majesty's
ministers, as I know I must thereby add to the embarrass-
ments which I know they must be under from the news they
will receive from India.
“You will see I am popular here. It has not been my own
seeking; for I think it is at least doubtful whether it will serve
or disserve me in England. Every endeavour has been used
by the Council to depreciate the Court. They have rendered
themselves universally odious. They have been the cause of
the addresses to the Court. They [the addresses] were en-
deavoured to be suppressed; one who refused to sign imme-
diately got a contract; one who persisted in signing has been
turned out of his office.*
By the same ship which carried the high-minded and
true-hearted Eliot, the bearer of as full and authentic
a report of a criminal trial as ever had been sent from
any country, in any time, Sir Elijah wrote to several of
his nearest and most distinguished friends, claiming their
attention to the said trial as soon as it should be printed,
and requesting their candid opinion upon it.
Most of these friends were lawyers, like himself; real
lawyers, who prided themselves in their profession, and
never thought of denying it; men, in every way com-
petent to give an authoritative opinion. The means
which, in our times, seem almost to have annihilated
space, and to have brought Bombay, and even Calcutta,
to the vicinity of London, were all unknown in the days
of my father; and to the tedious intercourse between
England and India, both he and the Governor General
owed many a long season of doubt and anxiety. Twelve
or fourteen months commonly elapsed between the
* Letter from Sir Elijah Impey to Mr. Cornwall, dated Calcutta, August
1775. Mr. Cornwall was at this time a Member of Parliament, celebrated
for his eloquence and political honesty. In a postscript to this letter Sir
Elijah says, that Mr. Cornwall is to show it to Thurlow, Dunning, Lord
Shelburne, Sutton, and Wedderburn.
124 CoPY OF NUNCOMAR's TRIAL
despatch of a letter and the receipt of an answer to it.
The ship which carried Eliot was between six and seven
months on its voyage. When he reached London, he
lost no time in putting the MS. into the hands of Mr.
Cadell, the bookseller. He carefully corrected the press
with his own hand; and, when the book was finished,
he placed copies of it not only in the hands of Sir
Elijah's private friends, but also in the hands of minis-
ters, the Court of Directors, and others. Dunning, by
the very first opportunity” which presented itself after
he had perused the trial, wrote to his friend, Sir Elijah,
to express his entire satisfaction with it. Dunning's
eminent qualifications as a lawyer remain undisputed.
He was one of the ablest English lawyers of that or
any other period. His competency to form a judg-
ment upon the case was accompanied by a moral
rectitude, and a natural frankness, which would have
deterred him from delivering an opinion which he
did not sincerely and thoroughly entertain. In his in-
tercourse with mankind, Dunning's failing was the very
opposite of flattery. He was bluff and rough. The
opinion he sent to my father was concise. Here are his
words:—
“The publication of the trial has been of use, as it has
obviated abundance of ridiculous and groundless stories. I
see nothing in the proceedings to disapprove of, except that
you seem to have wasted more time in the discussion of the
privileges of ambassadors than so ridiculous a claim deserved.”
If so many of my father's letters and papers had not
been unfortunately so scattered, as to be irrecoverably
lost, at least to me, I should have been, doubtless, able
* Sir Elijah's affectionate brother, Michael Impey, did not wait for the
publication of the trial to send his congratulations to Calcutta. Among
my family papers I find the following lettter —
“We are all as much pleased as is possible ; nothing being able to give
us more satisfaction than hearing you and my sister are well. Next to
this we receive the greatest pleasure in finding, not only by letters from
you, but by letters received by many of my friends, how much the people
of Calcutta admire your impartial administration of law, shown by their
address—which I have read, the trial I am promised—and the great de-
sire they express to have it perpetuated, by placing your portrait in some
public place, as a testimony of their approbation, which action of theirs
shows the opinion they entertain of your judgment, and the rectitude of
your heart. Those people cannot form a greater idea of both than the
people do here by their universal applause. Dated Hammersmith, 10th
April, 1776.
PUBLISHED IN ENGLAN D. 125
to produce, under their own hands, similar opinions and
attestations from Wedderburn, Wallace, Sutton, and
other legal friends. My father always took a just pride
in the unanimity of opinion among his best informed
friends; and, in his defence before the Commons, he
manfully affirmed that all his professional friends had
expressed their approbation of the manner in which the
trial of Nuncomar, and all the matters connected with
it, had been conducted by the Supreme Court; and, on
the same occasion, and in confirmation of the same
opinion, he produced, besides the above quoted letter
from Dunning, another from Sir W. Blackstone.
For a long time the publication of the trial stop-
ped the spread of prejudice in that direction. Alex-
ander Eliot returned to Bengal, to renew his close
intimacy with the Governor General and the Chief
Justice, and to resume those administrative offices
for which he was so admirably qualified. His sway
over the affections of men, and the proper con-
duct of public business, became stronger than ever;
and he was in the high road to become at least
the second man in India—second only to Hastings—
when death removed him from the world, to which he
was a bright ornament. He died shortly after in the
flower of his age. Cosa bella mortal passa a non dura.
Hastings erected a monument over his solitary grave,
and afterwards wrote a few tender, and not inelegant,
verses to his memory.
“An early death was Eliot's doom;
I saw his opening virtues bloom,
And manly sense unfold,
Too soon to fade I bade the stone
Record his name, 'mid hordes unknown,
Unknowing what it told !”*
Strange was it that Sir Gilbert Eliot, the brother of
this gifted and beloved being, should rush into the ring
with those who assailed the reputation, and sought the
absolute ruin, of his best and dearest friends. So
strange, that even the madness of faction, and the temp-
tations of oratory, and the wild excitement of popular
* These verses occur in that imitation of Horace's Otium Divos rogat,
to which Mr. Macaulay alludes.
126 CORRUPTION IN THE
applause, seem scarcely sufficient to account for it.
Yet is it no less strange than true. Sir Gilbert Eliot
anticipated, and even suggested, most of the topics
of Mr. Macaulay's unscrupulous audacity. It was not
for any want of exertion on Sir Gilbert's part that my
father, the friend of that gentleman's own brother, who
never could have held fellowship with a base or vicious
mind, was not visited with condign punishment as the
legal murderer of Nuncomar !
During the interval over which I have passed, from
the execution of the Rajah to the return of Alexander
Eliot to Calcutta, Sir Elijah Impey had not been an
idle man. He was grieved by the troubles and dissen-
sions he witnessed, and by the insidious attacks of which
he saw himself the object; but he did not relax a jot of
his energy. Although the Supreme Court occupied
much of his time, he prosecuted his study of the Oriental
languages, and he assisted the Governor General in
drawing up a more fixed scheme, and better rules, for
the revenue courts, which the Regulating Act and the
Royal Charter had left, to a great degree, independent
of the Supreme Court. Hence there arose frequent
conflict of authorities. But these revenue courts were
radically bad; all proceedings in them were attended
with enormous expense; too generally there was the
mere show, without any of the reality of justice; and,
in many cases, the poor natives felt the expenses to
amount to a denial of justice altogether. All parties—
the judges of the Supreme Court, the Governor General,
and the majority as well as the minority in Council—
agreed in declaring that these adaulut courts must be
corrected and remodelled. But the said courts had a
double function; and although Warren Hastings was
willing to deprive them of the faculty of judging in
territorial questions, or in mere disputes between one
zemindar, or farmer of land, and another, yet neither
he, nor the majority hostile to him, felt at all inclined to
take the tax and revenue causes out of those adaulut
courts. The reason of this was very apparent; the
adaulut courts were presided over by the servants of the
Company; by Europeans, appointed by the Governor
or the majority of Council ; and these laymen—for there
was not one of them that was a lawyer, or that appears
PROVINCIAL COURTS. 127
to have had the rudiments of a legal education—were
about the least likely men in all Hindustan to be impar-
tial judges between the Calcutta Government and the
ryots, or cultivators of the soil, or any direct contri-
butors to the revenue. They were all interested parties.
Tax-gatherers themselves, and looking either for honour
or promotion, or some other substantial benefit by
raising, each in his own district, the amount of re-
venue, was it to be expected that they should be patient
in hearing the reclamations of the natives 2 But the
native vakeels and banyans, whether Mohammedan or
Hindu, employed under these Europeans, were still less
capable of patience and impartiality. Their general
rule was to work out the wishes of their employers, and
to swell the revenue of the district as much as the
could ; for they depended upon the immediate chiefs of
the district, as those Europeans depended upon the Su-
preme Council of Calcutta, or upon the Directors in
Leadenhall-street; who, at that time, universally mea-
sured the value of their servants, whether civil or mili-
tary, by the amount of money they poured into their
coffers. If exceptions might be made to this general
rule and practice of the natives employed in the adauluts,
it was under influences and impulses by which the sacred
cause of justice was assuredly no gainer; they were
open to bribes; they were, as they ever had been, noto-
riously corrupt. To the poor they were inexorable;
in their eyes the Company, or the Company's revenue-
collectors, were always in the right; but when the de-
fendants were wealthy, and willing to use some of their
wealth in bribery, they could sometimes see that the
Company was clearly in the wrong. It was not on his
first arrival at Calcutta, but after he had passed more
than five years in the country, that Sir Elijah Impey
declared to Lord Rochdale, one of the Secretaries of
State, that the corruption and maladministration of the
adauluts or country courts of justice, in which the mem-
bers of the provincial councils presided, were most no-
torious.* The only appeal from these courts was to the
Sudder Dewannee Adaulut, the constitution of which
was almost equally vicious, leaving it entirely under the
* MS. Letters, afterwards printed in the Parliamentary Reports.
128 HASTINGs's schEME
control of the Governor or Council at Calcutta. The
other three judges of the Supreme Court were not less
sensible than my father was of the mischievous tendency
of the whole of this system. Mr. Justice Chambers
was, perhaps, even more active than Sir Elijah, in
pointing out the necessity of a sweeping reform ; and in
suggesting to the Governor General, and the majority of
Council, that both the adauluts and their court of ap-
peal, the Sudder Dewannee Adaulut, ought to be, and
must be, made more independent of the government of
Calcutta; and that in matters of territorial disputes and
of revenue, the government must not be judge and jury
in its own cause. Hastings, as I have said, was ready
to yield in part; but in what related to taxes, &c., he
was not a whit more unwilling to concede than were
the majority hostile to him ; and, as for THose pre-
tended reformers, and friends of suffering humanity,
THEY never, in action, forsook the principle, either
wholly or in part, that as much money as possible must
be extorted, in order to raise the East Indian dividends,
or to put an end to the pecuniary embarrassments—
mostly created by themselves—in order to prove that
they had been wise administrators and good stewards to
the Company. In a letter to Lawrence Sulivan, Esq.,
of the 21st of March, 1776, Warren Hastings pointedly
declares that some alterations must be made in the
prevailing system ; that the powers of the Supreme
Court must, in some way, be enlarged; and that his
respected friend, Sir Elijah, had put into legal lan-
guage, and into the form of an act of parliament, a
scheme for the better administration of justice, which
he, the Governor General, had drawn up, and sent
over to England, to be submitted to his Majesty's Go-
vernment. In this letter Hastings severely censures the
hostile majority for their conduct towards the Supreme
Court. He says, not merely that my father, but that all
the judges—without whose concurrence Sir Elijah never
did anything of any moment—approved of his plan.
After this Hastings adds—
“With this preface, I assure you that it is scarcely possible
to have acted with more moderation or caution than Sir Elijah
has observed in all cases in which the ordinary process of the
Supreme Court was likely to affect the collection and manage-
OF A DMINISTRATION. 129
ment of the public revenue. Indeed, the other judges merit
the same testimony in their favour. Had a cordial under-
standing subsisted between the Court and the Council, much
of the inconvenience that has arisen from the writs of the
Court would have been avoided, nor would the revenue have
been in the least affected by them; but it seems to have been
a maxim of the Board to force the Court into extremities, for
the sake of finding fault with them. Yet, in many cases, the
acts of the Court have been, and must continue to be, the un-
avoidable cause of embarrassment. This is owing to a defect
in its constitution. By the limitation of its powers it must
ever remain a doubt what is the extent of them, as every man
in the provinces is, in reality, subjected to the authority of the
Company. If it was constituted to protect the people from
oppression, that design would be entirely frustrated, were the
Board at liberty to employ agents who should be exempt from
its authority; and you will have seen many instances in the
papers which I have sent home of the most glaring acts of
oppression committed by the Board, which would have produced
the ruin of the parties over whom they were evercised, but for
the protection of the Court. Great complaints have been
made of the Zemindars and others, who are not liable to the
jurisdiction of the Court by the plain construction of the Act,
having been arrested, and some thrown into prison by its war-
rants. But no attention has been paid to the necessity which
there is of bringing the persons who are even excluded by the
Act from the jurisdiction of the Court, in the same way be-
fore it to establish their exemption.* They may plead to its
jurisdiction, and obtain their discharge; but, till this is done,
I cannot see how it is possible to make the distinction; for, if
every man who declared himself to be no British subject, nor
employed by any, was, in virtue of his own declaration, to be
exempted from their authority, all men would make the plea.
Their right to this exemption must be tried to be known, and
they must be compelled to appear, or give bail for their ap-
pearance, that it may be tried. }
* The majority of Council were ever ready to tell the zemindars and
others, that, by the Regulating Act, and by the Charter and Letters Patent,
they were altogether exempt from the jurisdiction of the Supreme Court,
and not bound in any way to attend to its writs or Sumnuouses. Unhap-
pily, Mr. Hastings was afterwards brought to alter the opinions expressed
in this letter to Sulivan ; and hence arose the only serious difference with
my father. This took place in 1779, during the Governor General's frail
and ephemeral coalition with Mr. Francis.
t Yet, subsequently, it was made a charge of tyranny and oppression
on the part of the Supreme Court that they compelled this appearance,
and arrested the refractory zemindars; and the Governor General, as if
forgetful of what he had here written to Sulivan, not only joined for a
K
130 HASTINGs's schEME
“The truth is, that a thing done by halves is worse than if
it were not done at all. The powers of the Supreme Court
must be universal, or it would be better to repeal them alto-
gether. . . . . . . . . . . . I hope that
my plan will be found to provide the most effectual relief
against all the imperfections of the Act as it now stands. On
the one hand, it proposes to give to the Supreme Court an un-
limited—but not exclusive—authority over all; and, on the
other, it provides for the administration of justice in all cases
to which its jurisdiction cannot conveniently extend, without
the danger of a competition with it. In this coalition of the
British judicature with the Dewannee, the latter will obtain
more steady and confirmed authority than it has yet ever pos-
sessed; and, being opened to the daily inspection and controul
of the judges—of the Supreme Court—the Dewannee courts
will acquire a more regular and legal form than they could
have, if left to themselves. But I trust the design will best
speak for itself, for it has at least the merit of simplicity
and precision. One only alteration has been made in it in the
draft which Sir Elijah is making for me. The superintendent
of the Court, called Adaulut Dewannee Zillajaut, who was
proposed to be a member of the Provincial Council,” as is now
the case, holding that office by rotation, is now proposed to be
an independent officer—I mean, independent of the Provincial
Council—and to be removable only for misconduct, or by vo-
luntary resignation; and he is to be the judge of all causes
that do not immediately regard the revenue—as disputes be-
tween farmers, and other proprietors or agents of the collec-
tions—which are left to the Provincial Councils.
“Mem.—The superintendent at present holds his office in
monthly rotation. My plan lengthened it to a year. Mr.
Chambers, on the same grounds, suggested the propriety of
making it perpetual, and to be held by a person, not a member
of the Provincial Council, which I immediately adopted, the
Chief Justice concurring in the same opinion.”f
This plan was never carried into effect. So indolent,
or so occupied with other difficult business, was the
government of Lord North, that the plan seems scarcely
to have been taken into consideration. The Premier
season in that loud outcry, but also resorted to acts of violence against
the Supreme Court, or against those who were executing its writs
* That is to say, a servant of the Company, appointed by the Calcutta
government, in whose causes he was to act as judge
† See Letter in Memoirs of the Right Hon. Warren Hastings, by the
Rev. G. R. Gleig.
OF ADMINISTRATION. 13]
was charged, apparently upon good grounds, of being
no friend of the Governor General, but of being very
anxious to conciliate General Clavering,” whose parlia-
mentary influence was very considerable, and of the
greater importance from the strength and talent of the
opposition, and the still declining popularity of Lord
North's administration. But no public man in those
days, unless he were a Director, or in some way con-
nected with the Company, would devote an hour's at-
tention to the affairs of India. In vain my father wrote,
letter upon letter, to Thurlow, for assistance and advice;
that eminent lawyer, who was already beginning to
open to himself the way to the woolsack, returned no
answer to these letters, although some of them contained
appeals to the memory of by-gone times and early
associations, which must have touched a heart not
hardened and absorbed by ambition and political
intrigue.
Such, however, was the calm enduring nature of my
father's affection, that I never heard him speak harshly,
or even warmly, of Thurlow's long neglect of him : but
I am not restrained by the same feeling; Thurlow was
not my early friend and most frequent associate; and
what Sir Elijah Impey never said, I may say without
indecorum. Yet, will I not say more than this, that his
disregard of an absent friend, if simply considered
in a personal point of view, was neither kind nor gene-
rous, but, if referred to public principle, obviously unjust.
It was out of the defeat, or rather the non-execution of
Mr. Hastings's plan of law reform, which we have just
heard him describing in his own words, that arose, some
four years after, that business of the Sudder Dewannee
Adaulut, which Mr. Mill, and Mr. Mill's follower and
refiner, Mr. Macaulay, have placed at the head of Sir
Elijah Impey's judicial offences; making it, in atrocity,
second only to the execution of Nuncomar, and, in the
baseness of its alleged motives, worse even than that
monstrous act of criminality, as by them misstated or
misunderstood. I shall come closer to that question
very soon ; meanwhile pursuing the narrative form, as
that likely to be most intelligible and most fair, I pro-
* Else why was General Clavering decorated with the red ribbon, and
Hastings left without any honorary distinction ?
K 2
132 M1SREPRESENTATION OF THE
ceed to place events in something like their chronolo-
gical order.
As the plan of the Governor General was consigned
to ministerial oblivion; as the jurisdiction of the Su-
preme Court was not made universal, in compliance
with Hastings's desire ; as tax-gatherers, and pro-
vincial councils, were left to try revenue cases, and
were encouraged not only to plead an exemption from
the jurisdiction of the Supreme Court, but also to bid
defiance to the authority of that Court, it could not, by
any possibility, happen otherwise, than that flagrant acts
of injustice should continue to be perpetrated upon the
poor ryots, and that angry altercations, and still more
violent collisions, should take place between the adauluts
and the Supreme Court. Mr. Macaulay, in relating
these violent dissensions—as in nearly every other in-
stance—looks nowhere for his facts but in the grossly
prejudiced and coldly pragmatical pages of Mr. Mill. In
fact, he does nothing more than bestow the graces of elo-
quence upon another man's hard, angular, and lapidary
style. Mill never resided in India; he was a clerk in Lea-
denhall Street, and wrote like one. His decorator, Mr.
Macaulay, smoked his hookah some five years in Bengal,
and, moreover, writes well. To that right honourable gen-
tleman's pithy points, and figurative declamation, I have
nothing critically to object, except that there is always too
much of them, and that their effect is ruined by excess—
gáxirog rö TXáoy. But are facts to be made subordinate
to grandiloquence 2 Shall fine words be allowed to stand
in lieu of truth 2 Are we to admire an assassin because
he commits his deed with a keen and polished weapon 7
After admitting that the authors of the Regulating Act
“had established two independent powers, the one judi-
cial, the other political,” and, “with a carelessness
scandalously common in English legislation, had omit-
ted to define the limits of either,” Mr. Macaulay, by a
conclusion most illogically at variance with his premises,
throws the whole blame of the disputes thus confessedly
resulting from imperfect legislation, not on the legisla-
ture itself; not partly on the Council, and partly on the
Court ; nor even on the errors, if errors there were,
but on the wilful misconstruction of “THE JUDGEs”
ALON E.
PROCEED INGS OF THE SUPREME COURT. 133
“The judges,” he says, “took advantage of the indis-
tinctness, and attempted to draw to themselves supreme autho-
rity, not only within Calcutta, but through the whole of the
great territory subject to the presidency of Fort William.”
Leaving entirely out of view the sufferings of the poor
ryots or tax-payers, he lavishes all his sympathy upon
the tax-gatherers. The poor were avowedly protected
and benefitted by the Supreme Court, and regarded its
establishment as a blessing; the revenue officers, the
provincial councils, and their native agents, who had
so long been judges in their own cause, cursed the
Court, and, no doubt, occasionally felt the vengeance
of its laws. Mr. Macaulay pities the oppressors, not
the oppressed. By his account, not the judges, but the
collectors, were the patrons of the natives Itaque
nunc Siculorum Marcelli non sunt patroni ; Verres in
eorum locum substitutus est. Yet, if he had read the Regu-
lating Act and Charter, and the parliamentary debates
which preceded the passing of that Act, he would have
found that its primary intention was to erect a court of
law, which should be strong enough to stand between
the fiscal rapacity of the Company's agents and the
feebleness of her subjects, Mohammedan or Hindu.
“Arrest on mesne process,” he continues, “was the first
step in most civil proceedings; and, to a native of rank, arrest
was not merely a restraint, but a foul personal indignity.
Oaths were required in every stage of every suit; and the
feeling of a Quaker about an oath is hardly stronger than that
of a respectable native. That the apartments of a woman of
quality should be entered by strange men, or that her face
should be seen by them, are, in the East, intolerable out-
rages—outrages which are more dreaded than death, and
which can be expiated only by the shedding of blood. To
these outrages the most distinguished families of Bengal,
Bahar, and Orissa, were now exposed.”
All this is sheer exaggeration ; or, if not so, was the
Supreme Court answerable for the misconduct of its
officers, or to be deterred from its duty to its clients by
the avarice of a contumacious collector, or the evasions
of a fraudulent wakeel ? As well might one argue that
the High Court of Queen's Bench should be restrained
from issuing its writs for fear of their being improperly
executed or illegally opposed In another place, Mr.
134 MIS REPRESENTATION OF THE
Macaulay, separating my father from the other judges,
and holding him up singly to the abhorrence of man-
kind, calls the people who executed the writs of the
Supreme Court, “Impey's alguazils;” and then bemoans
the outrages which, he says, these men committed upon
the native great men, whom, for the effect's sake, he
compares to English bishops put in the stocks, &c. &c.
Now, in sober truth, these native great men never ex-
posed themselves to the possibility of being thus treated;
and, if they were ever camed or pilloried, it was by
proxy, and in the persons of their vakeels; a case not
uncommon among themselves, and held to be perfectly
lawful. If a rajah or zemindar refused to pay a tax, or
was behind hand in his rent, his vakeel was sent for,
and well thrashed, and the vakeel retaliated upon the
poor ryots. These processes are universal in all Oriental
despotisms. And these, in British India, were some of
the abuses which the Supreme Court undertook to cor-
rect. The judges considered themselves bound to pro-
tect the poorer classes; but the collectors of the revenue
were not so scrupulous. Most of the latter class, as I
have said, were European magistrates in the provincial
adauluts. These gentlemen, who never appeared them-
selves, found it to their advantage to employ native
agents; who, being armed with their authority, cared not
how much they flogged and plundered the ryots, so long
as the revenue was collected. The zemindars, or large
farmers, did the same with those who farmed lands under
them.
The ryots could do nothing against these strong
men, except in getting their case made known to the
Supreme Court; but that Court issued its writs, and
not unfrequently brought the oppressors up to Calcutta,
or fined and imprisoned them if refractory. The sheriffs,
under-sheriffs, and sheriffs' officers, may, or may not, have
proceeded harshly upon some occasions; but if they so
acted, it was contrary to the instructions and intentions
of the judges. It was, however, high time to prove that
there was a law stronger than these strong revenue
agents; that there was a law before whose majesty all
ranks should be equalled, and all privileges and exemp-
tions cease. It especially concerned the newly-insti-
tuted Court, to convince the ryots that the law was the
PROCEEDINGS OF THE SUPREME COURT. 135
poor man's friend and defender. Mr. Macaulay thrusts
himself into zenanás, among Begums and their atten-
dants, who were now and then troubled because they con-
sidered their house as an asylum for delinquents; when
he ought rather to have entered the hut of the poor tax-
payer and cultivator of the soil. If, in the perfumed
air, and among the jewels and radiant muslims of the
one, the name of the Supreme Court was a name of
fear, that name was heard with very different emotions
in the other. In the lowly bungalo, women and chil-
dren blessed the judges, whom Mr. Macaulay condemns;
and cursed the oppressors and spoilers, whom he com-
miserates. In one of his private letters, written at the
time, my father says—“We are making these vultures
of the East disgorge their prey"—meaning those Eng-
lish and native revenue collectors, who hitherto had
been judges in their own causes. It was upon this, and
it was for this—exclusively and solely for this—that the
cry was raised by the servants of the Company, that
the Court prevented the collection of the revenue; that
its jurisdiction must consequently be limited; or, that
fortunes must cease to be made in India, and the affairs
of the Company go to irretrievable ruin.
In an unhappy hour Hastings lent an ear to this cry.
Proclamations were issued by the Council to the natives
to resist the officers of the Court. The sheriff, in attempt—
ing to execute the writs, came into conflict with the mili-
tary force of the Government. Now, no doubt, many out-
rages were committed on both sides; and for these out-
rages the Court, or rather the Chief Justice, was made
responsible ! In England, on such an occasion, the case
would be reversed. The reason is plain enough. Here
the sheriff raises his posse comitatus ; if that is insuffi-
cient, he applies to the Home Secretary, the Secretary
to the Commander-in-Chief, who sends out a squadron
of horse-guards, and the business is settled ; for, hap-
pily, none of these functionaries are at all concerned in
the collection of the revenue, or in any way opposed to
the courts of law; but, on the contrary, obliged to sup-
port the warrants of her Majesty's justices. In India,
on the contrary, at that time, from the Governor Ge-
neral down to the lowest Company's servant, native or
European, all were not only responsible to the Directors
136 M : SREPRESENTATION OF THE
at home, but personally interested, in every province,
for their share of the collection, either in the way of
commission or salary. The Supreme Court became un-
popular for a time in Calcutta, not because it oppressed
the people, but because it was obnoxious to the tyrannous
greed of their rulers. The sentiment expressed by my
father, that “these vultures of the East” must be
made to disgorge their prey, was not calculated to con-
ciliate the friendship of the Company's tax-gatherers.
But Mr. Macaulay again pities the oppressors, and not
the oppressed. He sheds rhetorical tears over the pre-
sumed and fanciful sufferings of native zemindars, who
farmed and extorted the Company’s revenue; but for
the native ryots, who paid and smarted under the pay-
ment of it, he has no compassion. It would not be
easy, even in all his flashy articles for magazines, or
reviews, or in the three collective volumes of “Essays,
Historical and Critical,”—which essays are but reprints
of his Edinburgh Review papers—to select a passage
more abounding in false feeling, rhodomontade, and
nonsense, than the following:—
“A reign of terror began—of terror heightened by mystery;
for even that which was endured was less horrible than that
which was anticipated. No man knew what was next to be
expected from this strange tribunal. It 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 spoke
* Mr. Macaulay, who is always so ready to censure others for not
knowing the languages of the country, is said to know himself little
or nothing of the dialects of the East. The life he led at Calcutta
—writing Edinburgh Reviews, &c.—was not likely to render him fa-
miliar with Bengalee or Hindustanee. He makes a fine sentence with his
“black water,” “people of India,” “mysterious horror,” &c., yet I may
be allowed to doubt whether he ever heard any of the people of Bengal
speak with horror of the sea, or call it the black water. Indeed, it seems
to me pretty evident, that the right honourable reviewer has borrowed the
picturesque compound “black water,” and the “mysterious horror,” from
the story of Cheetoo, the Pindarree robber-chief, as told by the late
Sir John Malcolm, with much more simplicity and effect than Mr. Macaulay
will ever attain to.
“When Cheetoo, the Pindarree chief, was flying in hopeless misery
from the English, he was often advised by his followers to surrender to
their mercy. He was possessed, however, by the dreadful idea, that they
would transport him beyond the seas, and this was more hideous to him
than death. These followers, who all, one after another, came in and ob-
tained pardon, related, that during their captain's short and miserable
PROCEE DIN GS OF THE SU PR EMIE COURT. 137
the language, or was familiar with the usages of the millions
over whom they claimed boundless authority. Its records
were kept in unknown characters; its sentences were pro-
nounced in unknown sounds.” It had already collected round
itself an army of the worst part of the native population—
informers, and false witnesses, and common barrators, and
agents of chicane; and, above all, a banditti of bailiffs' followers,
compared with whom, the retainers of the worst English
spunging-houses, in the worst times, might be considered as
upright and tender-hearted. Numbers of matives, highly con-
sidered among their countrymen, were seized, hurried up to
Calcutta, flung into the common jail—not for any crime even
imputed—not for any debt that had been proved—but merely
as a precaution till their cause should come to trial. There
were instances in which men of the most venerable dignity,
persecuted without a cause by extortioners, died of rage and
shame, in the gripe of the vile alguazils of Impey. The harems
of noble Mahommedans—sanctuaries respected in the East by
governments which respected nothing else—were burst open
by gangs of bailiffs.”
Now, this modern “Don Basile” found the raw mate-
rials for these finely-wove sentences in his great text-
book, “ Mill’s British India.” Mr. Mill found the
statements in letters written or dictated by Francis, in
parliamentary harangues, and in ex-parte evidence,
which amounted to no evidence at all ; and he set them
down in his book without examining them, and, in some
instances, without understanding them. Mr. Macaulay
took them all from Mr. Mill, merely breaking them up
into short, pithy sentences, and furbishing them up with
his peculiar varnish. It mattered not to him that this
reign of terror was a mere fable. He looked not to
discover what were really the feelings with which the
Supreme Court was regarded by the people of India,
for whose protection it had been called into existence.
He takes no pains to ascertain the truth of the fact,
sleep, he used continually to murmur, “Kala panee! Kala panee l'—
The black water | 0, the black water "-Account of Malwa.
In Central India, in the regions remote from all sight of the ocean, the
natives, indeed, call the sea the black water, and have a terrible idea of
it, and of the countries beyond it. But Mr. Macaulay was never in Cen-
tral India to hear the sea so called by the people of India; and the people
of Bengal, who, for the most part, are familiar with the sight of the ocean,
do not, as I believe, call it by any such name, or regard it with any such
terror or “mysterious horror.”
* He forgets the sworn interpreters of the Supreme Court.
138 MISREPRESENTATION OF THE
whether the judges were ignorant of the languages and
usages of the country or not. He knows nothing of my
father's laborious study of the languages, the laws, and
customs of the country; nothing of what was done by
his colleagues, who certainly had a better notion of the
duties on which they were employed, than to consume
their time in writing periodical pamphlets. He never
examined whether that army of informers, and false
witnesses, and agents of chicane, were called to their
standard by the Supreme Court, or whether they were
ever countenanced by it, or whether the severity of that
Court was not, for the most part, directed against those
evil classes of men. I believe that such men existed ;
I believe that the Supreme Court may often have been
obliged to listen to their evidence. But the Court could
not choose. A false witness must be proved to be such
before his evidence can be rejected Is not the most
upright judge, the most impartial jury, frequently
obliged to give ear to informers, false witnesses, bar-
rators, and agents of chicane 2 But, because such men
are constantly appearing in our English courts, are we
to say that our judges collect or suborn them 2 We have
Mr. Macaulay's own word for it, that the people of the
East are vindictive, venal, subservient, and monstrously
addicted to bearing false witness against their neigh-
bours. Very probably no single cause could be tried
by the Supreme Court of Calcutta without eliciting per-
jury and false evidence. But are the crimes of the wit-
nesses to be imputed to the judges 2 Was it otherwise
in the Mayor’s Court, and in the other Company’s courts
which existed before my father went to India 2 Is it
otherwise, now that my father has been almost forty
years in his grave, and that more than half a century
has elapsed since his first presiding over the Supreme
Court? Let Mr. Macaulay ask living judges, who have
presided over the courts of Calcutta, Bombay, or Madras,
or the barristers and attornies who have practised in
those courts. There are many such gentlemen now in
England; but as the right honourable reviewer, late
member of Council, and ex-Secretary-at-war, has scorn-
fully denied his being a lawyer, it is possible that he
may affect to despise the society and conversation of
men eminently learned in the law, and justly glorying
in their honourable profession.
PROCEED INGS OF THE SUPREME COURT. 139
The translator of the code of Gentoo laws,” had never
studied for the English bar, but he was well acquainted
with the native laws, and the character of the people.
I knew him well. He was a most ingenious and inde-
fatigable man; a fine classical scholar, as well as a great
modern linguist,-a quick and accurate observer.
He tells us, that he once heard at the Supreme Court
at Calcutta, a man, not an idiot, swear upon a trial,
that he was no kind of relation to his own brother, who
was then in the Court, and who had constantly sup-
ported him from his infancy.f
As for Mr. Macaulay's alliterative “banditti of bailiff's
followers,” they ought, perhaps, rather to be looked for
among those men who hounded out and ran down the
natives for revenue, than among the retainers of the
Supreme Court, who frequently interrupted their chase.
Models of virtue, humanity, and honour, are scarcely to
be looked for among jailers, bailiffs, and bailiff's followers;
but wherever there is a court of law there must be some
some such officials : but who ever yet dreamed of
making a Chief Justice answerable for the violence
committed by a bailiffº And why are these banditti of
bailiff's followers converted all at once into “the vile
alguazils of Impey’? Partly, perhaps, because Mr.
Macaulay would display his powers of illustration by
leaping from an Italian figure into a Spanish trope;
but more, I fancy, because he would make the careless
reader believe, through a mere flourish of the pen, that
all the sheriff's officers and bailiffs through the wide
limits of Bengal, Bahar, and Orissa, were especially the
retainers of my father, who had no more to do with their
appointment, than had the other three judges; or, perad-
venture, the Supreme Council itself: for its members were
too greedy of patronage and power not to thrust their
own dependants even into the precincts of the Court.j:
There were other noblemen in Seville besides Count Al-
maviva; but when “Don Basile” wished to defame that
one Count, he no doubt forgot all others for the time. So
does Mr. Macaulay with my father, and the other mem-
bers of the Supreme Court. Yet, whether this lively writer
*The late distinguished Nathaniel Brassey Halhed, Esq.
f See Preface to Halhed's Compilation of the Code of Gentoo Laws.
{ Namely, by means of their Advocate General, Sir John Day, and their
Company's standing barrister, Mr. George Boughton Rouse.
140 MISREPRESENTATION OF THE
chooses to call them banditti, in the Italian fashion, or
alguazils, in the Spanish, men who think more of facts
than of words, will believe, that the sheriff of Calcutta,
and his under-sheriff, had far more to do in their
appointment, not only than any judge of the Supreme
Court singly, but than all the Court collectively. I can
well fancy that bailiff's followers in India, being exclu-
sively, or very nearly so, natives, were a good deal
worse than bailiff's men in England. The judges
could hardly go forth with them as a colonel with his
regiment, or a captain with his troop. Mr. Macaulay
would make his readers believe they went plundering
and breaking into harems with them; that they went
forth on all occasions with the banditti, or alguazils, in
the fashion of Swift's attornies,
“Thorough town and thorough village,
All to plunder, all to pillage.”
But, in fact, the judges could only give out their writs
that they might be executed according to the forms of
law. In two instances, and no more, the one at Dacca,
the other at Cossijurah, both within the jurisdiction of
the Court, disturbances took place in consequence of the
opposition of Government to the writs of the Court. At
the former place it has been asserted that the sheriff's
officers were guilty of some violence which may possibly
have invaded the precincts of the harem,-no doubt
an unpardonable offence in the eyes of Hindus and
Mohammedans. The charge in the latter instance, is
best answered by a reference to the cause of Cassinaut
Baboo versus the Rajah of Cossijurah, which was tried
in the Supreme Court in 1779. It is much too long
to be quoted, but will be found in a letter dated
the 12th of March, 1780, from Sir Elijah Impey to
Lord Weymouth, in the Reports of the Committees of
the House of Commons, pp. 367–374 of vol. 5. I
may also refer to another letter, dated the 26th of the
same month, p.p. 182—187, which recites the circum-
stances of another cause, in which the judges checked
the tyranny and oppression of the Company's provincial
councils, or adauluts. From these two letters—though
printed in the reports for the purpose of collect-
ing evidence against Sir Elijah, might be collected
PROCEEDINGS OF THE SUPREME COURT. 141
matter sufficient for his defence in all that relates to the
jurisdiction of the Court; but then they must be taken
in conjunction with his own explanations, and coupled
with vouchers and affidavits for every fact. These
vouchers were mostly enclosed in long letters, at different
times, to the Earl of Rochford, from 1775 to 1779, and
in subsequent despatches to Viscount Weymouth, up to
the period of Sir Elijah Impey's return to England,
in 1783. Many other causes are included in the same
long correspondence, but as these two causes furnish
the matter collected as specially applicable to Sir Elijah,
they are sufficient to refer to.” An attentive and im-
partial examination of those pages, might, without going
any farther, have enabled the reviewer to arrive at con-
clusions very different from those which he has drawn;
but if he had coupled with them the voluminous records
preserved at the India House, the registers kept by the
Company’s solicitor at Draper's Hall, and the minutes
of the Privy Council, if he had consulted these with
one tithe of the labour I have applied to this investiga-
tion, the reviewer might have found himself in a better
condition to sit in judgment upon so complicated a
question as that upon which he has undertaken to
pronounce. But the man who declares Sir Elijah
Impey a judicial delinquent, without reading his trium-
phant defence on the Nuncomar charge, was but little
likely to go with any research into a charge of incom-
parably less importance. Sterne's critic merely looked
at his stop-watch, and Jedediah Buxton counted the
words and syllables without bestowing a thought on the
matter of Garrick's recitation. This Edinburgh critic
merely attends to the roundings of his periods, and looks
into nothing but the unsifted husks of Mr. Mill's history.
Of those numbers of natives highly considered among
their countrymen, who were seized and flung into the
common jail of Calcutta, without any crime and with-
out any debt, I can find nowhere any trace; none in
my father's correspondence, private or public; none in
Hastings's copious letters; none in any official or other
* See Report from the Committee on Touchett's Petition: I. General
Appendix, with references, from No. 7 to No. 39; II. Patna Appendix,
from No. 1 to No. 22; III. Dacca Appendix, from No. 1 to No. 12;
IV. Cossijurah Appendix, from No. 1 to No. 27.
142 CORRUPTION OF THE
report. The great natives, as I have said, suffered
through their vakeels. Some of these vakeels may
have enjoyed the consideration of a portion of their
countrymen, and may have been put, for a season, under
arrest for resisting the authority of the Court, or for
refusing to make restitution of the spoil unjustly wrung
from the poor ryots. Their sufferings—which, in most
cases, were mere temporary inconveniences—may touch
the tender heart of one who has such a sympathy for
tax-gatherers as Mr. Macaulay exhibits; but what
could the Court do but proceed against them according
to law Ż It was in these classes, that existed the extor-
tioners whom Mr. Macaulay dreams about. The
Supreme Court was not a court of revenue—there were
no extortioners presiding there, it was a court to put
down extortioners, and its activity in this respect, won
for it the gratitude of the poor and the hatred of their
oppressors.
The Calcutta government quarrelled with the Supreme
Court, because the judges would not allow the extor-
tioners to be at all times judges in their own causes.
Sir Elijah Impey wrote to the Secretary of State,
“It is with the deepest concern that the sense of my duty,
and the desire of the other judges, call upon me to declare to
your Lordship that, after four years’ experience, it is our
unanimous opinion that the corruption, depravity, avarice,
rapacity, and despotic principles, to which British subjects
long resident in this country have been naturalized from early
youth, and which they have been taught by constant examples,
and in which they have been strengthened by old habits, are so
universal, and the distinctions drawn by the most moderate
of them, between themselves and the natives, are so strong,
and so injurious to the latter, that the adopting the measure
proposed would be of the worst consequence to this country.
“To submit the causes of the injured to the determination
of their oppressors, would not only add insult to injury, but
would authorise the guilty to give, by the forms of justice,
both indemnity and legal sanction to their mutual crimes.
To suffer these British inhabitants to determine on the
jurisdiction of our Court, would be to annihilate it.”
The right honourable reviewer is fond of parallels,
and comparisons, and similitudes, of all kinds, however
* Letter to Lord Weymouth, dated the 26th of March, 1779.
PROVINCIAL COURTS. 143
far-fetched, but most of all he fancies such as seem
to be historical. Let me, then, ask him a question or
two in this way:-If he had been living in the rapacious
days of Henry VII.-not as a law-maker or cabinet
minister, but as a modest, plain, honest burgher—does
he conceive that he would have shed many tears upon
hearing that Empson and Dudley were flung into New-
gate, or the Fleet Prison; or does he think that there
was much weeping among the citizens of London, when
Henry VIII. put those two extortioners to death upon
Tower Hill ? I must dismiss these remarks on my last
extract from Mr. Macaulay's libel by adding, that his
story about the men of the most venerable dignity that
died of rage and shame at being put under arrest, must
be classed with that other fiction of General Clavering's
oath to rescue Nuncomar, though at the foot of the gal-
lows. There is as much discoverable foundation for the
one tale as for the other: both are oratorical flourishes,
and nothing more. Rousseau, one of the greatest of
masters himself, always doubted the truth of a story
that was too pointedly and finely told. “Alas!” said
he, “I know by experience how much of the true is
sacrificed by professed writers to the rhetorical.””
But if Mr. Macaulay had not been of the nume-
rous herd of those “who think too little, and who talk
too much ;” if he had read before he began to write,
discharging his mind, at the same time, of preju-
dice and party malice, he would have found truly
touching pictures of oppression, and stories, both ter-
rible and pathetic, in which the judges of the Supreme
Court boldly stood forward as the defenders of the
oppressed, and punished those who had been protected
by the Company's courts, and the native agents of those
adauluts. I will give the right honourable essayist and re-
viewer a story or two, upon which his rhetorical powers
might have been fairly exercised, prefacing them, as my
father did, with a few more remarks on the violence and
corruption of those courts. Sir Elijah wrote to the
Secretary of State :—
“We are likewise unanimous in our opinion, that the repre-
sentations made in England of the frauds, cruelties, and ex-
* Rousseau's Confessions.
144 CORRUPT'ſ () N OF THE
tortions committed by British subjects, or by persons deriving
power and influence from them and the Company, were by no
means exaggerated; but, on the contrary, that there exist at
present numberless sources of fraud and rapine totally unheard
of there [i. e. in England], and more especially in the pro-
vincial councils, which act as adauluts or courts of civil juris-
diction, and in the Board of Commerce, at Calcutta, composed
of senior servants of the Company. The first [the provin-
cial councils or adauluts] have been so perverted in the exe-
cution, as to be mow the greatest engines of oppression which
the miserable inhabitants of this country labour under. In
some of them, as we have been credibly informed, and of
which we entertain no doubt, the administration of justice has
been let to hire to dewams and banyans of those gentlemen,
whose duty it was to preside in those courts, and those to
whom it was let out were left to indemnify themselves by what
they could extract from the suitors. In others, the forms and
terrors of justice have been held forth merely to give colour
and force to rapine and extortion. Of two most notorious
instances of the latter we have had an opportunity of taking
judicial notice, without the least impeachment of the autho-
rities of those courts, to which, while they are suffered to
exist, we think ourselves bound to allow all the rights, privi-
leges, and immunities, which were intended to protect more
upright judicatories.
“One of the causes I allude to was tried on the 29th
March, 1777, in which Bebee Sukeen was plaintiff, and
Anderan Mullick defendant.
“The plaintiff was a widow of opulence, family, and virtue.
A charge, without the least colour of truth, was forged against
her, for having had and murdered a bastard child. This was
dome for the purpose of giving a pretence for putting a guard
over her house, and treating her with inhuman severity, by
the authcrity of the provincial council [or adaulut] and this
was done till a large sum of money was eactorted from her.
The plaintiff recovered damages to the amount of 33,575
Patna Sonaut rupees. This action was against a black agent.
Other actions were about to be commenced against British
subjects, who were suspected to have partaken of the money
extorted from the widow, but who thought—as we have been
informed—that it was more proper to make a compromise
than to stand a trial.
“The other cause was tried in November last. In that
Nanderah Begum was plaintiff, and Bahadre Beg, and other
officers attending the provincial council at Patna, were defend-
ants. In that cause, it appeared that the plaintiff, widow of
an Omrah of the empire, to whom her husband had, by deeds
PROVINCIAL COURTS. | 45
executed in his lifetime, given personal effects to the value of
some lacs of rupees, and considerable landed property, was,
under pretence that the deeds had been forged—though proof
was made to the contrary—plundered and stripped of the
whole estate, turned out, without bed or covering, into the
public streets, compelled to take refuge in a monument inha-
bited by fakeers, and to depend on their charity for subsistence.
She was then pursued by a guard of sepoys, who had orders
not to suffer any sustenance to be conveyed to her, and who
executed their orders so rigorously for three days, that during
that period she subsisted only on rice and flat cakes, which
the fakeers found means to convey through common drains or
chinks in the wall of the ruinous room which they had assigned
her for an asylum. The insults offered to her were carried to
such lengths, that her attendants called upon her to escape
from them by putting an end to her life; which fatal purpose
she was on the point of executing with a poignard, which she
had secreted for that purpose, when a timely relaxation of an
intended indignity happily prevented this enormous injury
from ending most tragically. This action was likewise brought
against black agents, whom the Council at Patna had, contrary
to their original institution, empowered to hear and determine
a petition, in which there was no allegation whatever of any
forgery. Judgment was for the plaintiff, with three lacs of
rupees damages;* and actions have been, or will be, commenced
against the Patna Council, for the severities exercised on
the lady at the monument, by their express order, to which
the defendants in this action before us did not appear to be
parties.”f
In these two tales Mr. Macaulay might have found
all the materials for a truly pathetic and dramatic nar-
rative : ladies of rank—and one of them of the very
highest rank short of royalty—defenceless widows,
merciless sepoys, compassionate fakeers, a pagoda, a
foul and ruinous chamber, famine, a threatened rape,
and a meditated suicide. But, as he found no allusion
to these two tragical stories in Mr. Mill's book, he says,
and, very probably, knows nothing about them : or,
had they come to his knowledge, I must suppose that
he would have suppressed them; for they go not to sup-
port, but to destroy his conclusions against Sir Elijah
* This was the sentence against which the Court granted an appeal in
1779, and which was dismissed by the King in Council, 1789.
f Letter to Lord Weymouth, dated 26th March, 1779.
L
146 CORRESPONDENCE O N THE
Impey and the Supreme Court. If the case had told
against them, who can doubt that it would have been
made the most of to their prejudice 2
The interested servants of the Company, or—which
is the same thing—the venal agents of those Company's
servants, might complain, murmur, and storm ; but the
business of the Court kept steadily on the increase.
The judges could do nothing to force that business; but
the Council of government could, and actually did, much
to check it, by leading the people of Bengal to believe
that the Court was not strong enough to protect them;
and that, by appealing to the Court, they must excite
the displeasure of the government. The poor natives
were but too easily intimidated; for it was no new thing
in India, for the will of a prince, or the arm of
his tax-gatherer, to overpower the law. At home, the
Court of Directors, who generally held those measures
the most legal which realised the most money, grew
very sensitive and apprehensive about their dividends.
They had not properly studied the apologue of the
goose which laid golden eggs. Their alarms were ag-
gravated by the correspondence of Francis; who, at one
and the same time, attacked the judges and the Go-
vernor General. In a letter to Alexander Eliot, who
was still in England, Sir Elijah Impey says,
“The last accounts received from England, in Maclean's
letters, are so alarming, from the turn affairs have taken, both
with regard to Mr. Hastings and the Court, that I am sure it
requires greater exertions than we can expect from our friends
to prevent a disastrous conclusion. I am perfectly satisfied I
need not call upon you at this crisis, and that you have already
done what is in your power. Maclean says that the powers
exercised by the Court are universally condemned; that the
T)irectors tremble for the revenues; that if Indian affairs were
brought before parliament the judges would meet no quarter ;
that attempts have been made to prejudice Lord Mansfield
against them; and that he fears friendships will give way to
politics. . . . . . I do positively assert, that no power
whatsoever has been assumed by the Court which would really
affect the revenues. Doctrines, indeed, have been flung out
by some friends of ours, which, if carried into execution,
would, I think, have prejudiced them to a high degree; but I
have effectually counteracted them in every instance. In this
I have been assisted by Mr. Justice Chambers. I tell you I
AFFAIRS OF THE SUPREME COURT. | 47
could not do without him. A warm friend of ours” has such
very high notions of the liberty and general protection from
the laws of England, in all revenue cases, that I found it abso-
lutely necessary to oppose him. This has been dome without
breaking in upon the harmony that existed among us. I am
bound to do justice to the support Chambers has given me.
Indeed, without it, the country might actually have been in
that confusion which it is endeavoured to persuade the ministry
and directors has taken place. Private attacks upon me, to
prejudice me with Lord Mansfield, are made.f. I have not the
honour to be personally known to his lordship, but by pleading
before him in Banco, where I do not know “he had reason to be
prejudiced in my favour.” If prejudices against me have taken
place, I can only appeal to the faithful representations of those
on the spot, who are intimately acquainted with my conduct
and motives. I have written a very hasty letter to the Lord
Chancellor, a copy of which I enclose to you. This I must
desire you to show to the friends to whom I desired my former
papers to be communicated, and, if you think it right, to
Lord Mansfield, in whose opinion, as you have frequently
heard me say, it would give me great pain to stand ill, not
only from interested views, but from the high idea I have
formed of his character.”S
At every step my father corresponded with eminent
crown lawyers and ministers at home, explaining the
motives of his conduct without reserve, and in the
clearest manner. At this time his expressions were
sufficiently warm, but it was only in cases of injustice,
extortion, or oppression. He writes to Lord Chan-
cellor Bathurst thus, for example:—
“I much fear the frequency of my letters may be trouble-
some to you. But as the ship which will convey this, will
carry an appeal in the case of Commaul versus Goring and
others, in which the evidence has run to an enormous length ;
I could not resist the impulse of my desire to stand exculpated
before your Lordship for the introduction of much matter,
neither, in my opinion, relevant to the cause, nor admissible
as proofs. I laboured as much as I could at the trial to
prevent it, but the zeal of my brother Lemaistre forced it on
* Mr. Justice Hyde.
+ Here we begin to trace the deep laid plot of Mr. Francis to make it
appear that Lord Mansfield had declared an opinion adverse to Sir Elijah's
conduct.
† Bathurst.
§ MS. Letter, dated Calcutta, 19th Sept., 1776.
L 2
148 CORRESPON DENCE O N THE
the cause by long examinations, which took up the greatest
part of the time which was spent in it.
“The Court is increasing daily in business. We are be-
ginning to make the vultures of Bengal to disgorge their
prey. Causes kept back by the timidity of the natives—
which had been much increased by assurances from those
who should have supported the Court, that the foundation
of it was unstable, and would be destroyed; and, therefore,
that they—the poor natives—could receive no permanent
protection from it—are now bringing forward by them;
and I am convinced we shall, in a great measure, give redress
for past injuries, and, by the frequency of our judgments,
strike sufficient awe to prevent great enormities in future.
“The institution of the new office for receiving and ea amin-
ing petitions of the natives, and for prosecuting the suits of
the poor gratis, has, and will continue to be, greatly conducive
to those important objects. We have, in two causes tried at
the sittings which I am now attending, had proofs of eactor-
tion and cruelties, equal, at least, to any that have appeared
in print in Europe. The salt contractors have, in those two
instances, been principal actors.
“A melancholy accident has happened here, which, I fear,
has been occasioned by this new institution. Mr. William
Chambers is the examiner of petitions. He had a principal
servant, in this country called a dewan, of uncorrupted inte-
grity, and who had been very diligent in assisting the poor
petitioners, some of whom complained of great injuries, and
had very high demands. Sums of money had been offered
to this faithful servant, which he had rejected. Last Saturday
se’nnight he was murdered in his bed, by a man who, a few
days before, offered him his services to play on the sittar, a
musical instrument resembling a guitar. There were gold
ornaments on the hands and neck of the deceased, and plate
and other valuables were in his room at the time. As none
of them were taken away, and the assassin had been with
him but a few days; and, as there had been no quarrel, or
assignable cause whatsoever, for the perpetration of so horrid
a deed, there is the greatest occasion to suspect that he was
hired by some person likely to be affected by the new insti-
tution. We have not yet been able to find any clue to dis-
cover either the murderer, or the motive of the murder.”*
As this faithful man was in the service of Mr. William
Chambers; and as Mr. Macaulay holds all the servants,
* MS. Letter, dated Court-house, Calcutta, 1st April, 1777.
AFFAIRS OF THE SUPREME COURT. 149
not only of the judges, but of the sheriffs, to be my
father's chosen creatures, that right honourable libeller
would, no doubt, have considered the murdered man as
one of “the alguazils of Impey.” But, if anything is
capable of proof, it is this : Mr. Macaulay is entirely
ignorant of the subject he discusses, and neither knows
why, nor among whom, the Supreme Court was unpo-
pular. He follows Mr. Mill, and Mr. Mill was just as
uninformed as Mr. Macaulay: and thus is history
written
At nearly the same time as the date of the foregoing
letter to Lord Chancellor Bathurst, I find my father
writing a very long and confidential despatch to Thurlow.
This despatch, like so many others, opens with the
expression of a modest doubt, lest Thurlow might be
wearied by the frequency and length of his letters; but it
shows throughout how many were the difficulties of his
situation, and how eager his desire to shape his conduct
by the strictest rules of law and equity; to avoid all
usurpation of authority, or extension of jurisdiction. In
this letter he complains of Justice Hyde, whose temper
and manners occasionally disturbed the unanimity of
the Court; and whose views, as to the extent of its powers,
ran into extremes, which it may be necessary to notice
hereafter.
Giving him every credit as an upright judge, he,
nevertheless, informs his correspondent, that Hyde had
just claimed, for the Supreme Court, the full right to
judge in causes of arrears of revenue claimed by the Com-
pany. My father, on the contrary, considered that
these causes must continue to be judged by the Com-
pany's courts, called dewannee adauluts, and that the
Supreme Court could do nothing more than prevent
extortion or violence, having neither the faculty nor the
time to judge of the revenue arrears. “It is absolutely
impossible,” he says, “that, with human powers, we
could, in the modes by which we must proceed, deter-
mine one-hundredth part of these causes; and, to me,
the question seems reducible to this; whether the reve-
nues shall, or shall not, be collected 2 I do not say the
present mode is unexceptionable; there are evils which
I wish the legislature would remedy.”
But the home legislature was too busy to apply any
150 CORRESPONDENCE ON THE
remedy to these errors; and, upon the remedial changes
suggested by Warren Hastings, a tremendous quarrel
broke out in the Supreme Council.
It was long before this time that my father and his
colleagues became fully sensible of the humiliating
effects of those parts of the Regulating Act, which left
their salaries to be paid by the East India Company;
that is to say, by the very party whose money-claims,
and other pretensions, they were so frequently called
upon to oppose. For the annual saving of a few thou-
sands, his Majesty's Government had put his Majesty's
judges in this false position. Even before the Company
began “to tremble for their revenues,” or to apprehend
that they would be lessened by the strictly impartial
administration of justice at Calcutta, the Court of Di-
rectors, not only departing from the liberality of British
merchants, but forgetful even of the principle of com-
mon honesty, behaved to the Supreme Court like mere
stock-jobbers, or exchange brokers, nicely calculating
all the changes and variations of the money-market;
which, to the uninitiated, and those who are employed
in higher avocations, must ever remain a source of per-
plexity and disadvantage. I find the judges accordingly
complaining, more than once, of this unexpected treat-
ment; whereupon Sir Elijah Impey, in behalf of him-
self and his brethren, wrote in the following straight-
forward manner to the Secretary of State:—
“The salaries of the Judges of the Supreme Court of Judi-
cature being, by Act of Parliament, estimated in pounds ster-
ling, here has been some difference as to the mode of payment,
which has caused a correspondence between the Governor
General, the Directors, and the Judges; and, as we have ever
thought it improper to correspond with the Directors, without
acquainting his Majesty's ministers with the contents of our
letters, I have the honour of laying before you the several
papers that have passed between them and us, hoping your
lordship will think our demands and proposals reasonable, and
trusting we shall have the assistance of Government to pro-
cure for us our just rights in an amicable manner.”*
These differences were settled at last, though not
much either to the honour or contentment of the Com-
pany; but it was lamentable that they should ever have
* MS. Letter, dated 19th Sept., 1776.
AFFAIRS OF THE SUPREME COURT. 151
been allowed to arise. My father always considered
this dependency of the judges for their salaries on the
Company, as one of the greatest blemishes of the Re-
gulating Act; alike degrading to the bench, and tending
to litigation and ill-will. This is a view of the subject
so obviously just, that it needs no illustration; and I
now haste to other matters of greater interest and im-
portance.
C H A P T E R W I.
CONTINUED OPPOSITION OF THE MAJORITY IN COUNCIL–
DEATH OF MONSON.—MR. WHELER APPOINTED GOVERNOR
GENERAL–DISPUTE BETWEEN HASTINGS AND CLAVERING
—DEATH OF CLAVERING—PROCEEDINGS OF THE COURT
OPPOSED BY THE COUNCIL–TRIAL OF FRANCIS.
THE opposition against the Governor General, by the
majority in Council, of which Philip Francis was the
head and front, had never ceased for a day; while the
weakness and distraction it produced became, every
moment, more and more alarming from the serious turn
which matters were taking in our American colonies;
from the great probability of France drawing her sword
on the side of the insurgents; from the presence of a
hostile fleet on the coast of Coromandel; and from
intrigues by French agents in almost every native court.
Hastings, like a great statesman, foresaw all that would
happen, and applied all his energies to prepare for the
struggle; for he was well aware that it was one which
must involve a question of no less importance than this,
“Whether France or England should hold dominion of
the East?” But he was thwarted at every step by the
majority of the Council. They proceeded to condemn,
and then to counteract, his newly-adopted system of
revenue and finance; which, though not free from faults,
was better than any that had preceded it, and far supe-
rior to that which they would have substituted in its
place. As they could conciliate the Court of Directors
only by raising the amount of remittances to England,
they were pitiless towards the tax-paying population,
CONTINUED OPPOSITION OF THE MAJORITY. 153
and the most exacting and clamorous of creditors
towards those subsidiary princes, who were in a state
of utter dependence on the Company. In the act of
tearing to pieces the treaties which Hastings had made
with those princes, they exacted from them more than
the price they were to pay for advantages which Hastings
had promised them, and which the majority had an-
nulled. And while they were grinding both prince and
people, and everywhere diffusing alarm—while they
were assuring the Directors, in Leadenhall-street, that
they were swelling their revenues—they wrote to his
Majesty's ministers, as well as to their own factious
correspondents, that the people of India were crushed
and tortured by the encroachments of the Supreme
Court, and that the whole empire was put in jeopardy
by the inordinate ambition of the Governor General.
But it was chiefly by means of the letters—the trea-
cherous, backbiting innuendos of Francis—that all
manner of false impressions were created in England.
Hastings was no less diligent in sending home com-
plaints and representations on his part; and these
were now more frequently addressed to the Prime
Minister than to the Court of Directors, of whose opi-
nion and approbation he was long distrustful, as he
well might be, after having seen with what ease they
could condemn in one despatch, what they had ap-
plauded in another, and with what rapidity they could
change their plans. Still, as the sworn servant of the
Company, the Governor General could not enter into a
scheme upon which General Clavering is said to have
embarked.
“The fact is,” says Colonel Maclean, writing from London,
under the date of the 25th of June, 1776, “a plan is formed
for reducing the Company to the simple transactions of com-
merce, and for taking possession of all its territorial rights
and acquisitions; and General Clavering has undertaken the
execution of this plan. The King is bigoted to him, and
will not hear of anything that thwarts him. And it seems
nothing short of your disgrace will satisfy his friends. Un-
less you and your friends are given up to his vengeance, he
will return in the first ship, et magna res manebit infecta.”
* Letter to IIastings, as given by Mr. Gleig, vol. II., pp. 48–70.
154 IMPARTIALITY OF THE JUDGES.
General Clavering's parliamentary connections were
very powerful; and, in the present embarrassing state
of affairs, it was a point of vital importance with Lord
North to ensure their support. The Prime Minister
himself, though confessedly an amiable and good-
natured man, had some prejudice, and, perhaps, some
political jealousy, against Hastings. I would not speak
so confidently of the feeling of his Majesty, George
III. ; but I conceive it to be very apparent, that the
Premier really wished and intended to place General
Clavering at the head of affairs in India. When, on
the 15th of December, 1775, a meeting was held at the
India House, to debate the question, whether an ad-
dress should not be sent up to the Crown, for the imme-
diate removal of Hastings and Barwell, Lord North’s
friends voted for that address. The measure was, how-
ever, rejected by a considerable majority; and this de-
cision, which left the great mind of Warren Hastings
at liberty to act for the welfare of India, gave great
chagrin to the minister, who was losing America. Still
the Governor General persevered in addressing Lord
North and his colleagues; still he continued to repre-
sent that his arms were tied, and that the greater part
of public business at Calcutta was at a stand-still ;
that the judges of the Supreme Court were insulted
and outraged by the majority of the Council, and were
only hindered from coming to an open rupture by his
endeavours, and their own regard to public order.”
The judges were not always on the side of the Go-
vernor General; being guided, not by passion, caprice,
or partiality, nor even by the conviction that, in the
main, Hastings was in the right; but by the letter, or
the spirit of the English law, which they were bound to
administer. In the course of these never-ending quar-
rels, they, more than once, delivered opinions directly
adverse to the Governor General, and favourable to
Francis, Clavering, and Monson. If, at the time, this
was resented by Hastings, he afterwards approved or
acquiesced in it. . He confessed that Sir Elijah Impey,
the calmest and firmest of the Court, had saved him
from the commission of grievous errors—had preserved
* Hastings's Correspondence, as given by Gleig.
DEATH OF COLONEL MONSON. l 55
his honour, if not his life. This Mr. Macaulay inter-
prets into an allusion to Nuncomar's execution; a more
candid critic, or a better informed historian, would have
referred it to the interposition of the judges in the
quarrel between Hastings and Clavering, which we are
now approaching, but must not anticipate.
While the war in the Council-chamber was at its
height, Colonel Monson fell sick, and was obliged to
absent himself. In the letter to his brother Michael,
dated the 10th of September, 1776, from which I have
already quoted, Sir Elijah says, -
“Colonel Monson is very ill; most people think he will
not be able to return to business, or even to live in this
country. . . . The dissensions in Council still subsist,
but they are quieter on account of the absence of one of the
majority, which has given Mr. Hastings an opportunity of
showing his moderation.”
But moderation was of no avail with men whose
passions, schemes, and ambition, were immoderate.
On the 25th of September, fifteen days after my
father's confidential letter to his brother, the majority
was reduced to an equality in number with its oppo-
nents, by the death of Colonel Monson. Thus, there
remained only two on either side, but the casting vote
of the Governor General gave him the superiority. On
the very next day after Monson's death he accordingly
writes thus :—
“It has restored me the constitutional authority of my
station; but, without absolute necessity, I shall not think it
proper to use it with that effect which I should give it were
I sure of support from home. . . . . . Thus
circumstanced, it is my wish to let the affairs of this govern-
ment remain in their present channels, and to avoid alter-
ations which, in the course of a few months, may possibly
be subject to new changes, and introduce weakness and
distraction into the state.”
And again, in a letter written on the same day, to
John Graham, Esq., he continues thus to declare his
intentions:—
“If a friend of Clavering's is sent out to reinforce his
party, I must, in that case, either quit the field, or resolve to
remain, and have a new warfare, perhaps more violent than
the last, to encounter. The first is a wretched expedient,
156 RE-ACQUIRED POWER OF
which I will never submit to. Having gone through two
years of persecution, I am determined now, that no authority
less than the King's express act, shall remove me, or death.
* G - e. I have already drawn the line of my conduct,
with the concurrent opinion and advice of Mr. Barwell and
Sir E. Impey, and have written to Lord North, to inform
him of it.”*
Being unable to defer the great question of the new
settlement of the revenue, &c., the Governor General
very soon used his re-acquired authority with boldness
and effect, deciding all measures connected with that
pressing question by his casting vote, and leaving Cla-
vering and Francis, even as they and Monson had re-
cently left him and Barwell, to protest and declaim.
But those two members of Council bore the hardships
of this, their new situation, with incomparably less
equanimity than Hastings and Barwell had borne their
two years' inefficiency. Yet, it appears, that the Go-
vernor General acted according to that moderate rule,
which he had explained to Lord North, and, with greater
freedom of detail, to a private friend in Fngland, as
partially above quoted.
But Hastings and Barwell could have no chance of
carrying out the new revenue settlement, without first
re-modelling all the provincial councils, which, during
their late predominance, Francis, Clavering, and Mon-
son, had filled with their own relatives, friends, or de-
pendents, who had long since declared themselves the
mortal enemies of the Governor General, and would
now have done all in their power to render his designs
abortive. During two years the tripartite majority,
whereof
“What seem’d its head
The likeness of a kingly crown had on’—
had appointed to all places of emolument or power. To
lose this immense patronage, to see their appointments
made void, and their cousins, or creatures, removed,
was gall and wormwood to the two surviving sections
of the King, Francis and Clavering. The General fell
sick, “being covered with boils,” as Mr. Hastings re-
* For the remainder of these letters, see Mr. Gleig's Memoirs, vol. II.,
beginning at p. 108. I extract no more than is necessary to the thread
of my narrative.
THE GOVERNOR GENERAL. 157
lated to his correspondent, Graham, in the foregoing
letter. The constitution of Francis was of sterner stuff,
and a palliative was applied to his ill temper, by an
offer from Hastings, to allow him “a fair share of the
patronage.” This offer induced him to give a momentary
assent to the new settlement. But the dark author of
the letters of Junius was never steady to any engage-
ment, but continually changing aspect and demeanour,
like the perplexing spectrum in Lord Byron's witty, but
indecorous poem:*
“Now it wax’d little, them, again, grew bigger,
With now an air of gloom or savage mirth;
But as you gaz'd upon its features, they
Changed every instant—to what, none could say.”
But to some points Francis was steady enough ;
steady in revenge, steady in pursuing every object of
his spite, steady in his love of power, as well as in
his love of money. There is, therefore, one inaccuracy
in the following account of him, as given at this
moment, by the great man whose life he embittered –
“Francis,” said Hastings, to his and my father's friend,
Alexander Eliot, “ you will perceive, has promised, in one
minute, to give his support to it—the new settlement—though
he says he disapproves of the principles on which it is founded ;
yet, in another minute, in reply to mine, thanking him for
that assistance, he retracts that promise. The movements
of that man of levity are difficult to foresee, or comprehend.
His interest is the only steady principle in his composition,
and it operates in him as powerfully as in any man I ever
knew; yet, even this cannot always concentrate him, but, by
fits, he flies from off it.”f
At this moment, not only Sir Elijah Impey, but also
Mr. Justice Chambers, made some slight efforts with
ministers, and their friends in England, to be admitted
into the Supreme Council. All the judges had long
conceived that at least one of their body ought to be a
member of that Council, where many questions were
decided which involved points of law; and, in the deci-
sion of which, the want of legal knowledge had often
been apparent. My father's proceedings in this matter
* The Vision of Judgment. Few can regret more than I that the late
excellent and revered Southey should have provoked this malicious piece
of wit, by an injudicious application of his powers to an unworthy topic.
ºf Letter, dated 23rd November, 1776, as given by Mr. Gleig.
158 A SEAT IN COUNCIL
were marked by the mildness and modesty that belonged
to his character. About a month after Colonel Monson's
death, he thus wrote to Thurlow, beginning with a me-
lancholy, but marked remonstrance, against his habitual
neglect.
“Dear Thurlow, You must excuse me for my complaints
of not having heard from you, though I have written to you
from every stage on my voyage, and almost by every ship,
since my arrival in India. The transactions here, the turn
India matters have taken in England, and the pushes made
against me by General Clavering, all add to my anxiety. e
“I now feel a degree of absurdity in showing a wish to be
appointed of the Council, well knowing I must be obliged
to my friends, if I so far withstand the attacks made upon
me, as to keep the ground I now possess. I, therefore, did
not drop a hint of this in my last. Since that I have re-
ceived a letter from the Lord Chancellor [Bathurst] dated
the 7th of April [1776] full of terms of approbation, kind-
ness, and friendship, which have given me the courage to
make the proposition. Chambers is employing himself on
the same object; and, though I could not help having some
awkward sensations if he was put over my head, yet, if I
should not succeed, I am far from wishing him ill success.
Some time or other the inconvenience of not having a member
of the Court a member of the Council will be seriously felt.
Misapprehensions, misrepresentations, and jealousies, which
could be easily cleared up, as they arise, with immediate ex-
planations, do, will, and must, ferment into animosities
and enmities.
“Your partiality to me I have experienced; and, though
your silence has alarmed me, I still cannot believe that it is
altered. If my interest is not contrary to the inclination of
Government, and their general plan, I still hope you will en-
deavour to promote my wish. It may be strongly biassed,
yet I really think that it is necessary, for the tranquillity of
the settlement, and the uniting the powers of Government in
this country, that one judge of the Court should be admitted
into the Council.”
“Whether you laugh or frown at this application I cannot
guess; and whether you think it proper to assist me in it or
not, I shall always acknowledge myself under obligations to
you. Yours, most sincerely and affectionately,
E. I. *
* MS. Letter to Thurlow, dated Calcutta, 20th October, 1776.
REQUESTED BY THE JUDGES. 159
When Mr. Macaulay was legislating,” or pretending
to legislate in India—without being a lawyer—he was
allowed a seat in the Council. Such a seat was never
granted either to my father or to Sir Robert Chambers.
Lord North, in all probability, never once gave the sub-
ject a serious thought; and I am afraid that the bustling,
ambitious, and aspiring Thurlow, did little to promote
the desire of his absent friends. He was already, and
had for some years been Attorney General; he had
attracted the particular notice of George III., by the
zeal and energy with which he had supported the
policy of Lord North's government respecting America;
and the great seal, which he actually obtained in the
summer of 1778, through the resignation of Lord
Bathurst, seemed even now to be within his grasp.
In the month of March, or April, 1777, before which
my father's letter could hardly have reached him,
Thurlow, his colleagues, and party, were involved in
tremendous troubles by the ill-success of the wretchedly
conducted war in the American colonies, and by the
increasing power of the opposition in either House of
Parliament. Canada had been invaded by the repub-
licans; General Howe compelled by Washington to
evacuate Boston. The Earl of Chatham in the Lords,
and Burke in the Commons, were denouncing the whole
war as hopeless and ruinous. Ministers had not time
to bestow a thought upon India, or on any person
connected with that portion of the British Empire.
Both the Governor General, and the Chief Justice,
were exposed to the enmity of some of the authorities
in Leadenhall Street; whose enmity was embittered
by a knowledge of their corresponding with his
Majesty's Ministers. Upon ex-parte evidence, the
Court of Directors wrote a strong reprimand to
Hastings, accusing him of having usurped an undue
authority since the death of Monson.
A considerable time before that event, when Monson
was well or active, and Hastings almost overwhelmed
by the majority of Council, he, in a moment of des-
pondence, had announced to his friends, Graham and
Maclean, that he thought seriously of resigning.
* Under Act 3 & 4 William IV.
160 APPOINTMENT OF MIR. WHELER
Colonel Maclean, after keeping this letter by him for
several months, showed it to the chairman, and deputy-
chairman, and another director in the India House;
and upon their report, the resignation was hurriedly,
yet formally, accepted, and a successor to Hastings
was chosen in the person of Mr. Wheler. Further, the
Court of Directors resolved that General Clavering, as
senior Member of the Council, should occupy the chair
at Calcutta till Mr. Wheler arrived. Mr. Wheler was
accordingly presented to the King, and accepted as the
future Governor General.
The news of these proceedings reached Calcutta on
the 19th of June: they were brought, in what Hastings
calls “a mysterious packet; ” and as soon as this
packet was opened, everything was thrown into fresh
confusion. Hastings declared that the Court of
Directors could not accept what he had never given;
that his letter about resigning had been revoked by a
subsequent letter; that Colonel Maclean had no
authority to publish a letter written in the confidence
of friendship, and expressive merely of the mortified
feelings of the moment; that nothing in that letter
amounted to a tender of his resignation, and that, even
if it had, it was annulled by a second, written not many
weeks after, and strongly declaring his intention to
remain at his post, lest British India should be ruined
and lost, by the levity, incapacity, ignorance, and rash-
ness, of Francis and his confederates.
He refused, therefore, to submit to General Clavering's
taking the chair, and summoned the Council to assemble
under his own presidency as before. On the other
hand, Clavering insisted on his right, and summoned
the Council in his own name. Barwell attended the
summons of Hastings, Francis that of Clavering; and
thus, there were in Calcutta two councils, each claiming
the supreme authority. General Clavering and Francis
met at the usual Council-table; Hastings and Barwell
at the Board of Revenue. The General immediately
proceeded to take the oaths as Governor General,
ad interim, and to deliberate and preside. Hastings
requested the judges of the Supreme Court to attend
him at the Revenue-board, to give him their opinion.
The judges met immediately, but to no purpose; for
AS COVERNOR GENERAL. 161
General Clavering had got possession of all the des-
patches from Europe, and refused not only to deliver
them up to Hastings, but also to show them to the
judges. Hastings assured the judges, in writing, that
if, upon inspection of the said despatches from Europe,
they should find any act of his from which his resigna-
tion could be deduced, he would immediately vacate
the chair. Clavering and Francis then condescended
to enclose copies of some of the despatches, upon which,
they said, their claims were indubitably and immovably
grounded. They did not offer to abide by the decision
of the judges, but they agreed to suspend the execution
of their orders as a Council, till the judges should have
given their opinion.
In the meanwhile, Clavering demanded the keys of the
fort and treasury, and wrote a letter to the comman-
dant of the fort, requiring his obedience; and Hastings,
equally active and far more self-possessed, clenched
the keys with a firmer grasp, sent opposite orders to
the commandant, and showed himself fully determined
to meet force by force. The sword of civil war seemed
half unsheathed. But the military man, Clavering,
cooled at the sight of this unexpected boldness in the
civilian; and, unquestionably, had it come to an issue,
the vast majority of the army in India would have
stood by their experienced Governor, rather than by
their untried Commander-in-Chief.
The judges were unanimously of opinion, that it
would be illegal in General Clavering to assume the
chair, or otherwise persevere in his course. Thus
baffled, the confederates wrote a letter to the judges,
acquiescing in their judgment. Francis, however,
showing his pride and malignity, seceded from the
Council re-assembled under the presidency of Hastings,
and would not apologize for his absence.
With this decided majority, that is to say, himself
with his casting vote, and Mr. Barwell, against the
General, Hastings now carried a resolution that
Clavering, by taking the oath as Governor General,
and by his violent proceedings, had vacated his seat as
senior Member of the Council, and could no longer sit
at the board in any capacity. But here the judges,
with Sir Elijah at their head, refused to go along with
M
I62 HOSTILE PROCEEDINGS BETWEEN
him, and Hastings, who took a different reading of the
law, was in his turn compelled to yield.*
This is one of many examples which might be ad-
duced of my father's perfect impartiality, and indepen-
dence on the friendship of Hastings.
The hostile parties now consented to refer their
several claims to England for decision; and, in the
meantime, to leave everything at Calcutta as it stood
before the arrival of the “mysterious packet.”
My father's letters to Thurlow, Dunning, and other
friends, closely agree with the preceding narrative of
events, nor does there appear ever to have been any
difference of opinion as to the facts here stated; Mr.
Macaulay alone, whether ignorantly or maliciously,
slurs over the decision of the judges, and hints that the
Court was partial.
In his letter to Thurlow, of the 29th of June, 1777–
the same date as that of Hastings to Lord North—my
father puts in a strong light the impetuous and uncon-
stitutional behaviour of Clavering. His words are
these :—
“On the day after the arrival of the “mysterious packet,”
General Clavering sent a letter by his military secretary, de-
manding the keys of the fort and treasury, by virtue of the
authority devolved on him as Governor General. He ordered
the secretary of both departments—viz., the general depart-
ment, and that of the revenue—to issue a summons, in his
name, as Governor General, to Mr. Barwell and Mr. Francis,
to meet in Council. The secretary of the general depart-
ment obeyed, and issued the summons accordingly, in conse-
quence of which, Mr. Francis attended, and the General
and he held a Council, at which the General took his
oaths, as Governor General, assumed the chair, and presided,
and came to several resolutions to proclaim the change of
government. At the same time Mr. Hastings, who had not
yet received the General’s letters, was at the Revenue-board,
the place where, in the routine of business, the Council was
to be held, for which the secretary of that department had,
some days before, issued a summons in the name of Mr.
Hastings, as Governor General. Mr. Barwell, who had re-
ceived his summons to attend the General’s Council, came to
* Letters from Warren Hastings to Mr. Sykes and Lord North, both
dated the 29th of June, 1777, as given by Mr. Gleig. Abstract of the
proceedings as given by Mr. Mac Farlane in “Our Indian Empire.”
HASTIN CAS AND CLAVERING . | 6.3
the Revenue-board, produced it; and, about the same time,
Mr. Hastings received the General’s letter. They answered
by requiring the General to attend the Board, and declaring
their ignorance of the power of Governor General having
devolved on him. Mr. Hastings and Mr. Barwell immedi-
ately wrote to Colonel Morgan, the commandant of the fort,
and Colonel Muir, the commandant of Barrickpoor—16 miles
from hence—acquainting them with the General’s claim, and
ordering them to obey no orders but from the Board. Colonel
Morgan instantly shut the fort, and returned for answer,
that he would obey no orders but from the Board. Colonel
Muir returned the same answer. At the same time they sent
the orders to the commandants, they addressed a letter to
me, to assemble the judges, to assist with their advice,
which was immediately followed by one desiring us to as-
semble at the Revenue-board. We went accordingly. Mr.
Hastings there repeated to us what had happened. e -
He then desired our opinions, whether the powers of Go-
vernor General were actually vested in the General, and
whether the proceedings were regular; saying that, if we
thought that the powers of the Governor General were vested
in the General, he would immediately acquiesce in that opi-
nion, and retire to a private station. We told him the two
questions must depend on the first; and that, not having the
papers, we had not the proper materials to judge. We pro-
posed that he should demand the papers, or copies of them;
he said they had been demanded, and refused. Mr. Barwell
said he would go to the General's meeting and demand them,
as a member of the Council. He went, and on his return,
reported, that the papers were in possession of the General,
who would not deliver them, but told him he might hear
them read, and required him to take his seat at that Board.
We then proposed that a message should be sent to Mr.
Auriol, desiring him to acquaint the General that the judges
were assembled, and with the questions which had been re-
ferred to them. We said, if the papers were then refused,
and he would state their contents in writing, to the best of
his recollection, we would advise him, to the best of our
abilities, with this reservation, “if the facts were accurately
stated.’ This message produced an answer from Mr. Auriol,
that the General was preparing a letter to the judges, re-
questing us to appoint a time to receive the papers, and to
consider them, and give our opinions in the absence of both
parties. We appointed six o'clock in the evening, at my
house.
“In the evening the General's secretary attended, with a
M 2
164 HOSTILE PROCEEDINGS BETWEEN
letter from the General and Mr. Francis, informing us they
had suspended their resolutions, desiring our opinions, and
enclosing the papers, Nos. 1, 2, 3, 4, 5, 6, 7. Mr. Hastings
and Mr. Barwell sent their proceedings of that day, together
with a clause of 13 Geo. III., and the commission granted
by the Company to Mr. Hastings to be Governor General,
and to command the garrison, &c. The evening was now far
spent, and, about four o’clock in the morning, we delivered
to the gentlemen attending on both sides, letters directed to
the several gentlemen, declaring our opinions, that the powers
were not actually vested in the General. At noon, we re-
ceived a letter from the General and Mr. Francis, informing
us that they acquiesced in our opinions. Mr. Hastings and
Mr. Barwell kept up the Council at the Revenue-board by
adjournment to the 23rd, when they resolved that General
Clavering had vacated his offices of senior Councillor, and
Commander-in-Chief. On the evening of this day, I received
a letter from General Clavering and Mr. Francis, inclosing a
minute which they had entered on the consultations, which
set forth the reasons for what they did on the 19th. At five
in the morning of the 24th, I received another letter from the
General and Mr. Francis, with a letter from Mr. Summer,
informing them of the resolutions of the 23rd, about the
General’s offices, and desiring the judges to point out a
means of redressing the grievances which the General com-
plained of. The judges met at ten that morning at my
house. I was desired to go to Calcutta to endeavour to
reconcile matters, which I did, having seen Mr. Hastings,
Mr. Barwell, and Mr. Francis, them in Council. Mr. Hastings
and Mr. Barwell agreed to follow the advice of the judges.
The judges, on my return to them, agreed on a letter in which
they said they could not be of opinion that the Governor
General's Council, could, by their own authority, declare
vacant the seat of any Member of their Board; and advising
them to recede from such resolutions as prevented the General
from the free exercise of his offices, and that neither party
should act on their claims, but reserve them for decision in
England. The acquiescence of Mr. Hastings and Mr. Barwell
was in two hours afterwards signified to us by a letter from
them. The General and Mr. Francis thanked us in the same
manner for our attention to their application. The next day
they all met in Council, the General re-assuming his seat as
senior councillor; and everything at present is calm. They
agreed at this last meeting to send the proceedings on both
sides to the Court of Directors. I have apprehensions from
some passages in the General’s and Mr. Francis's minutes—
though I am almost afraid to attribute conduct so illiberal to
HASTINGS AND CLAVERING. 165
them, when they well know the very disinterested part I have
taken in this business—that, even in this affair, they will
arraign my conduct in England. Perhaps Mr. Hastings may
have more reason to complain of me, which, however, he mo
way does. Last night the General came to me alone, to re-
turn me thanks, and to enter into confidential discourse, and
remained with me three hours. The General still insists that
he is by right Governor General. . . Though I love and
revere Mr. Hastings, as I find that the Administration have
made their final option, and that General Clavering is to be sup-
ported, I will not by advice or otherwise thwart the measures
of Government. Even should the government here be flung
into the hands of Clavering, I will really and truly support
his administration as far as I legally may, as much as if it
were in other hands; but from what has already passed in
England, and from the minute of the 23rd of June, I much
fear his intrigues, and that notwithstanding his professions to
me here, his intentions are hostile to me. . . . . Mr.
J. Stewart writes me the subject of a conversation you held
with him. I am much obliged for the kindness to me with
which you expressed yourself; but, to a mind agitated as mine
has been, you have no idea of the consolation it would be to
see it expressed under your hand by letter.””
Several important changes were now made among
the agents and residents at the native courts: Mr.
Middleton was again sent to reside at the court of the
Nabob of Oude, and Mr. Bristow who had been nomi-
nated by the majority, was recalled; Mr. Francis Fowke,
son of that Mr. Joseph Fowke who had been tried for
a conspiracy against the Governor General, was removed
from Benares, and other alterations were made in favour
of Hastings's friends, evidently to the great satisfaction
of the nabobs and people of India. Colonel Monson's
place in the Council was soon after occupied by
Mr. Wheler; who, although nominated as Governor
General, consented to fill a subordinate post. The
new Member of Council generally, but not invariably,
voted with Francis and Clavering, against Hastings
and Barwell; but before this party could recover the
ascendancy, it was broken up, or reduced to a minority,
by the death of General Clavering. The General died
about two months after his desperate effort to dispossess
Mr. Hastings as Governor General.
* Letter to Thurlow. In MS. letters from India, in my possession.
| 66 I) EATH ()T CLAVERING.
On the 30th of August, of this same turbulent year,
1777, my father wrote triplicate letters, as was frequently
his custom, to his three principal correspondents, Sutton,
Dunning, and Thurlow. Of these triplicates, I find
the rough draft usually inscribed “mutatis mutandis.”
To Dunning he said:— -
“I send you this to acquaint you with the death of Sir
John Clavering, who died yesterday of a bloody flux, which
he had on him for little more than a week. . . . This
event, by removing the favourite object of Government, may
give a turn to Mr. Hastings's affairs in England, and make
even the King's Ministers desirous of his remaining in India.
Perhaps it may give an opening to my friends to procure a
seat for me in Council. . . . I most sincerely think, that
the Chief Justice’s having a place in Council will contribute
much to the strengh, ease, and harmony, of the Council and
Court. If there is any way in which you can assist me, I am
sure I need not solicit you.”
The letter to Thurlow was to the same purport, and
nearly in the same words; but enclosed in it were two
other letters, one to Lord North, and one to Lord
Weymouth, which Thurlow, the Attorney General, was
to forward, if he saw nothing objectionable in them.
In that addressed to Lord North, Sir Elijah said:—
“As by this event—the death of Clavering—there will be a
vacancy in the Council, I have taken the liberty of submitting
to your Lordship, the propriety of the Chief Justice having a
seat at that Board. I do this with the strongest sense of the
rectitude of my own intentions, and of my attachment to his
Majesty, and the nation’s interest.”
The letter to Lord Weymouth was of the same tenor.
The very same day my father also wrote to Lord
Chancellor Bathurst. In this last letter, the following
passage may be worth notice :—
“Sir John Clavering was taken ill about a fortnight ago,
returning home from a visit at my house. He died, and was
buried yesterday.”
By the same conveyance he addressed his brother,
telling him, that he had made a fresh application
for a seat in the Council, but that he was not at
all sanguine in his expectations. Except from his
brother, and Dunning, it appears he received no answer
| NDISPOSITION OF SIR ELIJA H. 167
to any of these letters.” The ship which sailed from
Calcutta at the beginning of September, probably did
not reach England until the end of January, perhaps
not until the end of February, 1778.
On the 2nd of June, of that year, Lord Bathurst,
who had appointed my father, ceased to be Chancellor,
and the seals were transferred to Thurlow; a change in
the home Government by no means favourable to any
of the judges in India.
Death had thus removed, in rapid succession, two
Members of the Supreme Council. Before the death
either of Monson or of Clavering, the health of Sir
Elijah Impey, and of more than one of the puisne jud-
ges, had been seriously affected. My father had under-
gone a sharp illness. He attributed the disorder solely
to excess of mental labour, and considered that the
climate of India had not had much to do with it. At
least so he wrote to his brother, whose alarms appear
to have been excited by some unfounded reports of his
death about this time:–
“I have indeed had some very slight disorders, which must
fairly be attributed to fatigue, and not to the climate, but they
have long since vanished, and as I take great care to spare
myself, never sitting in Court after one at noon, I have no
reason to expect their return. If increase in bulk, hearty
appetite, and sound sleep, indicate health, I have the
strongest pretensions to it. I use exercise, which is esteemed
absolutely necessary here. You will hardly credit, what
nevertheless is actually fact, I mount my horse every morning,
without fail, at five o’clock, I dine at one, sup at half-past mine,
and go to bed at eleven. This is not the general mode of
living in the settlement, hours being very late and irregular :
but I intend to live for my friends and family, and will not,
even by the stream of custom, be driven from my purpose.”
Francis had outlived his two original colleagues, but
continued, nevertheless, to exercise a considerable con-
troul, by means of his ascendancy over the mind
of Mr. Wheler; not sufficient, however, to counteract
*Throughout the MSS. in my possession, there are evident traces of
uninterrupted intercourse between my father and some of his corres-
pondents, particularly Dunning; but their letters, except in a few
instances, appear to have been either carelessly preserved, or to have
fallen into hands, from which I have vainly endeavoured to redeem
them.
168 TOLICY OF HASTINGS
Hastings with his casting vote, and the steady adherence
of Barwell.
Some time elapsed before Clavering's vacancy was
filled; and, during that interval, the Governor General
assumed the real direction of affairs. On the 22nd of
November, 1777, Hastings wrote to a private friend :—
“The death of Sir John Clavering has produced a state of
quiet in our councils, which I shall endeavour to preserve
during the remainder of the time which may be allotted to me.
The interests of the Company will benefit by it; that is
to say, they will not suffer, as they have dome, by the effects
of a divided administration.”
This quiet in the Councils of Calcutta happened at a
very opportune and critical moment. When Clavering
died, danger was approaching on all sides. The vaccil-
lating policy so long pursued by the majority of the
Council, had alarmed or alienated the friends, and em-
boldened the enemies of British India. Most of the
Mahratta chiefs were looking forward to war and
plunder; complicated intrigues, plots and combinations,
were forming at Poonah; a French ship had put into
one of the Mahratta ports, a French agent was reported
to be resident at Poonah, and there exercising a predo-
minant influence over the savage mind of Hyder Ali.
Rumours were everywhere spread by Frenchmen, or
their secret agents, that the English monarchy was
falling to decay; that her fleets and armies had been
defeated, that she had lost America, and must soon lose
all that she possessed in India. It was not alone the
great body of natives that was affected by these reports
—they spread discouragement and alarm among the
officers and servants of the Company, and over every
British subject in Hindustan. A commercial as well as
bodily panic ensued in Calcutta. Every Englishman
who had money hastened to remit it home by the first
available transport, considering all property as insecure
in India. These fears increased the danger, by lessening
the means of Government to meet it. The empire which
he and the great Lord Clive had erected was tottering
on the very edge of a precipice, when Hastings, enabled
by the circumstances here narrated, and with a brave
disregard of responsibility, seized the powers of which
he ought not to have been deprived for a single day.
FOR PRESERVING INDIA. 169
Animated by his spirit, and directed by his genius, the
English officers in India proved themselves worthy of
contesting so glorious a dominion. Marches of a won-
derful length, campaigns of an unprecedented extent
and complication were undertaken, and conducted to
their close with gallantry and success. Goddard,
Popham, Bruce, and other officers of the Company, who
now first made their names known to the world, per-
formed prodigies of valour; and the veteran, Sir Eyre
Coote, who had fought with Clive at Plassey, now sur-
passed his former exploits.
It is not in my province to relate how our Indian
armies, thus put in motion by their immortal Governor
General, triumphed over the most formidable confe-
deracy which England has ever witnessed in the East—
over Hyder Ali, the Mahrattas, the Dutch, and their
French allies The brilliant story has been recently
told with what I consider sufficient accuracy, and an
adequate feeling of national renown. The whole con-
duct of the war depended on the Governor General, his
energetic loyalty, and fertility of resource. At nearly
every move, Francis and his adherents condemned these
plans, and suggested others which would have been
ruinous indeed. But, luckily, Francis could now only
figure in protests and misrepresentations. Clive himself
had never acted with more determination or intrepidity
than Hastings at this momentous crisis.
If, in achieving this great delivery, under circum-
stances of nearly every possible difficulty, discourage-
ment, and obstruction, our distinguished Indian states-
man did occasionally resort to measures which might
not be perfectly justifiable at a time less critical than
that in which he was called upon to act, a large allow-
ance must be made for every imputed irregularity. Had
he failed to do that which he did, India must have been
abandoned like America. Nay, if Francis had been en-
abled to defeat the brilliant efforts of Warren Hastings,
India would have been lost long before the American
colonies. About the last public act performed in India
by the author of Junius, was his opposition to the
splendid campaign of Major Popham, which shook the
power of the Mahrattas in the very heart of their own
territory. Harassed by his incessant cavils, and eager to
| 70 PROCEEDINGS OF THE COURT
have a united administration at so portentous a moment,
Hastings, in an unhappy hour, tried once more to effect
a reconciliation with Mr. Francis. The Governor Ge-
neral, as the event proved, could scarcely have committed
a greater mistake. The temper of Francis was uncontrol-
lable; his mind open to no conviction. On Hastings's side
there existed many justifiable suspicions and antipathies
which could hardly be removed by any compromise:
Francis had offered him insults difficult to be forgiven
by any man, unless on a death-bed. Hastings always
attributed the far greater part of the agony of mind he
had endured, to the “incendiary impressions” of the
ex-clerk of the War Office; and he had reason to ap-
prehend, or proofs sufficient to know for a certainty,
that, while listening to overtures of accommodation in
India, Francis was defaming him, worse than ever, by
his correspondence in England, and was seeking to
estrange his best friends in India. He had said on one
occasion,--
“Francis is the vilest fetcher and carrier of tales to set
friends, and even the most intimate friends, at variance, of any
man I ever knew. Even the apparent levity of his ordinary
behaviour is but a cloak to deception.” -
The hollow compact was, however, made towards the
close of the year 1779; Francis promising to cease or
moderate his opposition, and Hastings agreeing to con-
cede a larger share in the distribution of place and
profit to his opponent. The Governor General knew
the soi-disant patriotic member of Council too well to
have expected, for a single moment, that Francis was to
be swayed by any other motives than those of his own
interest and ambition. The hollow truce had scarcely
been concluded, ere the virulent spirit of Junius drove
Hastings into a quarrel with my father and the other
judges. He filled the ear of the Governor General
with tales against the Supreme Court, and he procured
more than one order for preventing execution of the
writs issued by the Court. He raised and encouraged
doubts among the natives, touching the jurisdiction of
the Court and its extent; and he twisted the defective
Regulating Act and Charter as he chose. In vain my
* Letter to Sullivan, as given by Mr. Gleig.
OPPOSED IBY THE COUNCIL. | 7 |
father had written volumes of letters to procure from his
Majesty's Government some clearer definitions: in vain
had he suggested many capital amendments to that Act
and Charter: he and his brethren were left to abide the
perilous issue of their own unassisted construction.
To support the authority of the Court, as they under-
stood it, and to carry into execution the laws of Eng-
land which they were sent out to administer, Sir Elijah
Impey and his assessors were unanimously resolute.
They, however, did nothing of the least moment with-
out reporting their proceedings to the Secretary of State;
and everything they did, was either tacitly or expressly
approved by his Majesty's Government.
It was still in decisions on proceedings connected
with the collection of the revenue, that differences of
opinion arose between the Supreme Court and the Su-
preme Council of Calcutta; or rather between the judges
and Hastings, Francis, and Wheler; for Mr. Barwell
was always either neutral in these quarrels, or decidedly
in favour of the judges; nor was it until Barwell's de-
parture for England that matters were driven to extre-
mity. In a country like India, neither sheriff's officers,
nor sheriff himself, could often execute a writ without
being attended by some armed force. By order of
Council, this force was, more than once, refused to the
sheriff; and, on other occasions, sepoys were sent, not to
strengthen the sheriff's officers, but to rescue prisoners
out of their hands. If a native had been arrested, the
cry was set up that the jurisdiction of the Court did not
reach him ; if an Englishman had been seized, no
matter how contumacious, his cause was espoused in
Council, and by all the interested servants of the
Company. In one of his letters to Lord Weymouth,
Sir Elijah says,
“So little conversant are the English here with justice,
that every cause decided against a British subject creates a
personal enmity to the judge.”
Mr. Macaulay speaks as if these quarrels of the
Council with the Court, arose solely out of oppressions
tyrannically exercised by the judges against natives of
rank and consequence. Far different was the case.
The “Board of Commerce,” composed entirely of ser-
vants of the Company, exercised very important judicial
| 72 PERSEV ERANCE OF THE COURT.
functions, and claimed an extensive jurisdiction. Their
proceedings frequently attracted the notice of the Chief
Justice and other judges of the Supreme Court. In
that very full and explanatory letter to the Secretary of
State, from which I have already made many quotations,
he says, -
“The corruption of the members of the Board of Commerce
is matter of public conversation; and it is without doubt, that
the most gross frauds, in relation to the sales and contracts
which the Company entrusted to them, were formed into a
regular system, very early after their institution, and have
been uniformly practised ever since. We are convinced that
a bill of discovery, with proper interrogatories pointed to this
charge, and brought against the members of that board, and
their black agents, would furnish matter to prove that they
had great reason to wish for the non-existence of our Court.”
This my father proceeds to exemplify, at a length
which it is important not to abridge.
“The minds of two gentlemen had been much inflamed
against the Court, on account of the unsuccessful issue of two
causes in which they had been defendants. An action had
been brought against Mr. Cottrell, who is a member of the
Board of Commerce, and keeper of a warehouse belonging to
the Company, for an assault and battery upon Jugamohun
Shaw, an opulent Hindu merchant, who had purchased copper
at the Company's sales. He, thinking the copper he had
bought was short in weight, applied to Mr. Cottrell to have
it reweighed. This so much incensed that gentleman, that,
without further provocation, besides treating the merchant
with other indignities, he struck him with his cane, and
turned him out of the warehouse. For this injury, the Court
assessed damages, in November last, at 1000 sicca rupees,
which we estimate to be equal to £100. From Mr. Cottrell,
we conceive, the Board of Commerce, and from them, the
other Company’s servants' dependants, caught the flame.
“An ejectment had been brought against Lieutenant-Colonel
Henry Watson, for part of the land on which he proposes to
make docks. It appeared on evidence, that this land had
been forcibly taken by the then government from the lessors
of the plaintiff, without pretending any right to it; that they
had received no recompense for it either from the Colonel or
the Company. The cause was tried on the 6th of February
last. The Court, after having in vain endeavoured to prevail
on the defendant to accept a compromise, which was offered
by the injured party, and which appeared to be very reason-
TRIAL OF FRANCIS. 173
able, found itself under the necessity to give judgment for the
plaintiff, which the judges expressed great reluctance in doing,
on account of the expenses the Colonel had been at in his
works, and the supposed utility of them. From that moment
the Colonel became an enemy of the Court.
“From the warmth of this gentleman, and his great assi-
duity and perseverance, we are able to account for the zeal
with which the military have prosecuted this business.”
Many other causes might be cited in which the deci-
sions of the Court were given in favour of otherwise
helpless natives against the powerful servants of the
Company. Others again might be quoted in which no
native was concerned, but in which plaintiff and de-
fendant were alike Europeans, and servants of the
Company.
Of this latter class, the most conspicuous cause of all,
was one in which Philip Francis, Esq., Member of the
Supreme Council, was defendant. And from the con-
duct of Sir Elijah Impey on that occasion, may be, in
great measure, deduced the persevering and implacable
hatred of the author of Junius. As the friend of Mr.
Hastings, I believe he always disliked my father; that
he wrote and spoke against him to public men both
in England and at Calcutta is well known ; but until the
Court sentenced him to pay rather heavy damages in
an action for criminal conversation, which I shall pre-
sently quote, he continued to frequent the house, and
to profess in public a great respect for the character of
the Chief Justice. When Samuel Tolfrey, one of the
witnesses examined in Sir Elijah's Defence in 1788,
was asked “whether there had been any coolness ob-
servable between Sir Elijah Impey and Mr. Francis,
after, or in consequence of, the trial and execution of
Nuncomar !” that gentleman deposed upon oath that
“there had been none; but that a coolness began to
appear after the crim. con. trial, in which a verdict had
been given against Mr. Francis.”
The author of Junius, to many other unamiable
qualities, added that of being vain of his reputation as
an homme aua, bonnes fortunes. This formed a conspi-
cuous part of that levity for which Hastings scorned
the man. The ex-clerk of the War Office, was eager
to figure as the gallant gay Lothario of Calcutta, if not
174 TRIAL OF FRANCIS.
in circles nearer home. In some quarters these pre-
tensions only made him ridiculous ; but in others,
they gave disgust and pain. I believe also, that,
in more than one instance, the malevolence of Francis,
if not first awakened, was increased by the checks
his vanity received from women of virtue and piety. So
little was my father given to scandal of any kind, so
averse was he to dwell upon the failings even of the
enemy who had most defamed him, that I do not re-
member to have once heard him relate the circum-
stances of the trial, nor do I find a single allusion, in
his papers, to the cause of Le Grand versus Francis, to
which I allude, and which produced so great a sensa-
tion in Calcutta at the time.
I extract the following account of the trial, from a
volume of my friend, the late eminent civilian John
Nicholls, Esq., who had ample and authentic sources of
information on the subject. Mr. Nicholls introduces this
account in his comments upon the impeachment of
Mr. Hastings, and the parliamentary proceedings
against my father, which he mainly imputes to the
ill will of Francis :—
“Mr. Francis was a man of considerable abilities. He was
a very superior classical scholar ; and he was capable of
laborious application. Strong resentment was a leading fea-
ture in his character. I have heard him avow this sentiment
more openly and more explicitly than I ever heard any other
man avow it in the whole course of my life. I have heard
him publicly say in the House of Commons, ‘Sir Elijah
Impey is not fit to sit in judgment on any matter where I am
interested, nor am I fit to sit in judgment on him.’ A rela-
tion of the ground of this ill-will may be amusing.
Mrs. Le Grand, the wife of a gentleman in the civil service in
Bengal, was admired for her beauty, for the sweetness of her
temper, and for her fascinating accomplishments. She at-
tracted the attention of Mr. Francis. This gentleman, by
means of a rope-ladder, got into her apartment in the night.
After he had remained there about three quarters of an hour,
there was an alarm; and Mr. Francis came down from the
lady's apartment by the rope-ladder, at the foot of which he
was seized by Mr. Le Grand’s servants. An action was
brought by Mr. Le Grand against Mr. Francis, in the Su-
preme Court of Justice in Calcutta. The judges in that
Court assess the damages in civil actions, without the inter-
TRIAL OF FIRANCIS. 175
vention of a jury. The gentlemen who at that time filled this
situation, were Sir Elijah Impey, Chief Justice, Sir Robert
Chambers, and Mr. Justice Hyde. I was intimate with the
first and the third from early life, having lived with them on
the western circuit. On the trial of this cause, Sir Robert
Chambers thought, that as no criminality had been proved,
no damages should be given. But he afterwards proposed to
give thirty thousand rupees, which are worth about three
thousand pounds sterling. Mr. Justice Hyde was for giving
a hundred thousand rupees. I believe, that Mr. Justice Hyde
was as upright a judge as ever sat on any bench; but he had
an implacable hatred to those who indulged in the crime
imputed to Mr. Francis. Sir Elijah Impey was of opinion,
that although no criminal intercourse had been proved, yet
that the wrong done by Mr. Francis to Mr. Le Grand, in
entering his wife's apartment in the night, and thereby
destroying her reputation, ought to be compensated with
liberal damages. He thought that the sum of thirty
thousand rupees, proposed by Sir Robert Chambers, too
small; and that proposed by Mr. Hyde, of a hundred
thousand, too large. He therefore suggested a middle
course, of fifty thousand rupees. This proposal was ac-
quiesced in by his two colleagues. When Sir Elijah Impey
was delivering the judgment of the Court, my late friend,
Mr. Justice Hyde, could not conceal his eager zeal on the
subject; and when Sir Elijah named the sum of fifty
thousand rupees, Mr. Justice Hyde, to the great amusement
of the bystanders, called out, ‘Siccas, brother Impey !’ which
are worth eleven per cent. more than the current rupees.
Perhaps this story may not be thought worthy of relation;
but it gave occasion to that animosity, which Mr. Francis
publicly avowed against Sir Elijah Impey; and the criminal
charge, afterwards brought against him in the House of
Commons, was the offspring of that animosity. I will follow
up this anecdote by mentioning the consequences of the action
brought by Mr. Le Grand. The lady was divorced ; she was
obliged to throw herself under the protection of Mr. Francis
for subsistence. After a short time she left him, and went to
England. In London, she fell into the company of
M. Talleyrand Perigord. Captivated by her charms, he
prevailed on her to accompany him to Paris, where he
married her; and thus the insult which this lady received
from Mr. Francis, and the loss of reputation, which was,
perhaps unjustly, the consequence of that insult, eventually
elevated her to the rank of Princess of Benevento.
“As I took part in the defence of Mr. Hastings on the two
charges which I have mentiomed, and was known to interest
176 TRIAL OF FIRANCIS.
myself much in the welfare of Sir Elijah Impey, I speak with
some reluctance of Mr. Francis; but the impeachment of
Mr. Hastings, and the accusation of Sir Elijah Impey, both
originated with him.” +
* “Recollections and Reflections, Personal and Political, as connected
with Public Affairs, during the Reign of George III. By John Nicholls,
Esq., Member of the House of Commons in the fifteenth, sixteenth, and
eighteenth Parliaments of Great Britain.” 2 Wols. 8vo. London, 1822.
O H A P T E R W II.
OPPOSITION OF THE COUNCIL TO THE SUPREME COURT-
COMMITTAL OF MR. NAYLOR FOR CONTEMPT OF COURT
—PROJECTS OF THE COUNCIL FOR ADMINISTERING
JUSTICE, ETC.
THE vacant seat in Council was given, not to the Chief
Justice, Sir Elijah Impey, nor to Mr. Justice Chambers—
who had also endeavoured to obtain it—but to General
Sir Eyre Coote, Commander-in-Chief of the forces in
India. This veteran was quite competent to make a
proper distinction between the ability and genius of the
Governor General, and the vain pretensions and auda-
city of that jarring member of his Council, whom, never-
theless, he was now attempting to conciliate, at no small
hazard of the public service, and at the certain sacrifice
of private friendship and personal interest. Coote saw
that the schemes of Warren Hastings, which he was car-
rying out as well as old age and infirmity would allow,
were saving and enlarging our Indian empire, which
the counter-projects of Francis must have involved in
shame and confusion for a time, if not in ultimate ruin.
Without pledging himself in all cases, but reserving to
himself the same freedom of judgment which Sir Elijah
Impey had always exercised in the same civil feuds, Sir
Eyre Coote generally, and upon conviction, voted at
the Council board with Warren Hastings. But his
duties as Commander-in-Chief kept him almost conti-
nually in the field, and at the distance of many hundred
N
178 OPPOSITION OF THE COUNCIL
miles from Calcutta. In his absence, Francis, by his
influence over Mr. Wheler, though he could not entirely
annul, could often invalidate that of Hastings and his
firm confederate Mr. Barwell; and Barwell, now weary
of the struggle, was anxious to vacate his seat and return
to England. Francis, too, had been talking of return-
ing home, but if Hastings had believed in the existence
of any such intention, it is obvious that he would never
have entered into that ill-advised compact—that “male
sarta gratia”—with Francis, which interrupted, for a
brief space, his long established, and eventually in-
separable union with the Chief Justice.
Upon discovering that he could not overrule the new
Commander-in-Chief and Member of Council, as he had
done General Clavering and Colonel Monson, and that
all his artifices to command a majority produced no
effect, the baffled agitator lost all his confidence and
singular prestige.
“Francis,” writes Hastings to Sulivan, “is miserable, and
is weak enough to declare it in a manner much resembling
the impatience of a passionate woman, whose hands are held
to prevent her from doing mischief. He vows he will go
home in November, but I do not believe that his resolution is
so fixed as he pretends.”
The vow was made when Sir Eyre Coote was at Cal-
cutta, and sitting in Council. When the Commander-
in-Chief was far away, contending with Hyder Ali and
the French, there was a noticeable revival of the spirit
of Francis, and with it the opportunity of doing mis-
chief, by embarrassing the Governor General. Hastings,
therefore, thought it necessary to conciliate him, and
few means were so likely to tend to that effect as hostile
proceedings against the Supreme Court, and a breach
in the forty years' unanimity of two most honourably
connected friends. Among all the sacrifices of feel-
ing and principle which Warren Hastings, in the
midst of many arduous struggles for the preservation
of a mighty empire, conceived himself obliged to make,
I count this not the least : but though I approach the
subject with great reluctance, and with a determination
not to expatiate upon it—for it is one from which my
father, in after times, most scrupulously abstained—yet
TO THE SUPREME COURT. 179
that the sacrifice was made I am compelled by verity to
acknowledge and to lament.
Petitions reflecting on the judges of the Supreme
Court were set on foot; one to be presented to the
Court itself, another to be sent to England, and laid
before Parliament. The signatures of the Governor
General's aid-de-camps and most confidential servants
were set to these petitions, as if to prove that Hastings
had entirely set himself against the Chief Justice and
his brethren. My father remonstrated, and endeavoured
to show that an open collision between the Supreme
Council and the Supreme Court must be attended with
the most lamentable consequences. Hastings had re-
course to general professions and protestations; but the
actual hostilities were carried on with greater heat than
ever; and, in various other cases, the authority of the
Court was notoriously defied, its judges loaded with
abuse, and its servants maltreated in the provinces.
Upon this Sir Elijah did that which he had never failed
to do: he wrote a calm account of the transactions
to his Majesty's government, and his legal friends in
England. In a letter to Thurlow—now Lord Chancellor
—dated January 11, 1780, he said,
“The process of the court has been opposed by force. . .
A capias was issued by Mr. Justice Hyde in August last,
against Rajah Soondenarain, zemindar of Cossijurah, within
the district of Midnapore, in the province of Bengal, on an
affidavit that the notice on which the cause of action arose
had been executed in Calcutta, and that the defendant was
employed by the Company in the collection of the revenues
due and payable to the Company. The Sheriff returned non
est inventus to the writ. The cause was duly proceeded in
under the Charter. Affidavits were filed for the purpose of
obtaining the sequestration. I had been so ill in October
and November, that I was obliged to be absent from the
Court. The Sheriff having received information from his
officer, who had got possession of some land and other effects
under the sequestration, that the markets or bazaars were
prevented from supplying him with necessaries, that the
country had been alarmed, that a number of armed people
were assembled, that he considered himself (being afraid to
go out) as a prisoner on the premises, and every moment
expected to be dispossessed, applied to Mr. Justice Hyde for
advice what he should do. Justice Hyde referred him to
N 2
180 OPPOSITION OF THE COUNCIL
me. I told the Sheriff that, as no actual violence had been
committed against the officer, and as the complaint consisted
more in apprehensions of what would be done than what had
actually been done, I thought it would be premature for the
Court to interpose—even if an affidavit of the facts had been
laid before it, which, from the situation of the officer, it was
impossible to procure. I advised him to send such a civil
force to protect his officer as he thought would be sufficient;
and, with them, a letter to the chief of Midnapoor, inclosing
a copy of the last clause of the Charter, and in consequence
of it requiring his assistance, and desiring him to send some
person with the Sheriff's officers to be witnesses that they did
no more than their duty. Such a letter was sent, but no
answer returned to it. The reinforcement went to the
Sheriff's officer, but they found the officer removed from the
sequestration by a company of sepoys under the command of
a Lieutenant Bomford, and under the direction of a civil
servant [of the Company] named Swainston, who had made
the officer a prisoner, seized all his papers and the inventory
he had made of the effects sequestrated, and afterwards seized,
imprisoned, and disarmed, all that had come to his assistance,
forced them on board boats, and then set them at liberty in
the town of Calcutta. The secretary of the Revenue Council
wrote to the Sheriff that some arms had been seized, and
offered to restore them. This happened in November last,
“Notwithstanding the whole of this was done by order of
the Governor General and Council, it was but last week that
the Governor General mentioned the matter to me. He came
to my house and told me he had been long uneasy lest a cir-
cumstance which had happened relative to the zemindar of
Cossijurah should disturb our private friendship. He then
complained that an armed force had marched through the
country to execute the process of the Court, which was a thing
not to be endured; and that if zemindars were to be subjected
to process of the Court, the revenue must receive great detri-
ment. I assured him that actions proceeding from sentiments
of duty, however contrary to those I might entertain, should
never operate upon me in prejudice of my private friendship.
I represented to him the subjection in which the Court would
be to the Council if the Council assumed to themselves to de-
termine on the jurisdiction of the Court, and the dangerous
consequences of defendants not subjecting the question of
jurisdiction to the judgment of the Court—resisting the com-
pulsory process by force, and being supported in it by that
power of government which ought to enforce obedience to its
orders; that, if the Sheriff was resisted by force, he had no
other means but force to effectuate the commands which he
TO THE SUPREME COURT. 181
received; and that it seemed to be extraordinary to complain
of that force which resistance had made necessary. He com-
plained that application had not been made to the Council
for assistance. I told him that it had been made to the
chief of the district; and that, if he promised me assistance
should be given on requisition, I would undertake that no
other force should be made use of but what should be bor-
rowed from his Government. He declined making me such
promise, but insisted on the defendant not being an object of
the jurisdiction, and that the affidavit was not sufficient to
ground the process on. I said I could not submit the exe-
cution of the process to the determination of the Council on
the point of jurisdiction, or propriety of the affidavit. I
again required to know whether the Council would assist in
the execution of our warrants, writs, &c., to which he would
give me no answer. I told him I was alarmed at the con-
fusion which an open resistance to the Court from the
Council would create in this country, and the effects which
it might have at home; I told him that I had been informed
that the resident at Midnapore, Mr. Swainston, had been with
the sepoys, and that they acted under his orders; that I ex-
pected the business would be moved in the term which was
to commence in a few days; that the authority of the Court
must be vindicated; and if the facts were made out, the neces-
sary consequence would be the commitment of Mr. Swainston;
that it would be very disagreeable to me to be driven to such
extremities, but that I was resolved at all events to do my
duty, if it became necessary; that I was still in hopes some
temper might be found; that if the defendant would still
plead, I would do all that lay in my power to prevent any
prosecution being carried on, and that I did not doubt I
should be able to effect it; that if the defendant was not, as
he said, an object of the jurisdiction, no prejudice could
arise to him from pleading; for that he would then have
judgment in his favour, and would be no more molested. He
seemed much moved with what I said; but told me he could
not give me any answer then, though it was what he much
wished; that he saw all the consequences, but could do no-
thing without consulting Mr. Barwell; that he would talk to
him and give me an answer in a few days; that he much
feared the consequences of the Government retracting what
they had done would be worse than their persisting. Some
days afterwards, when on a visit to him, I again mentioned
the subject. He said he was not prepared with his answer.
The term began on Friday, the 7th instant. I was informed
that the motions for the contempt would be made on Monday.
I therefore, on Sunday noon, wrote to the Governor a letter,
182 OPPOSITION OF THE COUNCIL
of which D is a copy, and received his answer E. I waited
at home for him on the Monday till I was obliged to go to
Court (and I am so punctual to my time that it is well known
at what hour I go there) without seeing him, and I have not
heard from him since, which, I suppose, is the mode in
which he means to let me know there is to be no accommo-
dation. The illness of the Sheriff has prevented the motions
being made, but I am in daily expectation of them.
“What I allude to in my letter, with regard to passages in
former conversations, which might make a favourable impres-
sion on him, had no reference to the late conversations here
related, but to former declarations from him to me, that
during his government no act hostile to the Court should be
done, and that rather than commit himself to a contest with
the Court, he would leave his government.”
Sir Elijah goes on to tell the Lord Chancellor that a
paper in the Persian language, which extravagantly
exalted the dignity and power of the Company, and de-
rogated alike from those of his Majesty and his Judges,
had been circulated without any previous knowledge of
the Court; and that the said Persian paper implied that
the writs of the Court were to be resisted by force. My
father further adds,-
“Surely, for the peace of the country, and to prevent
bloodshed, the Court ought to have received some notice of
the intended opposition, that we might have deliberated whe-
ther under the force put on us, and on account of the disgrace
the Court must incur, and the disturbances likely to ensue,
we would not surcease the execution of duties in cases where
the Governor General and Council avowed they would arm the
defendants to resist our authority with open force.
“If they were of opinion that the Court was acting against
law, and that this was the proper mode of preventing it,
surely they should have apprized us of it. But as I am of
opinion that there can be no possible means of our knowing
whether we have jurisdiction over defendants but by their
submitting the question to be tried ; and as I think the
Court, not the Council, and still less the parties accused, com-
petent to decide that question: having, as is done in all cases,
obtained an affidavit from the plaintiff that the defendant is
an object of the jurisdiction, and stating the facts by which he
becomes so, I shall not hesitate to grant process. I will, to the
utmost of my power, by legal means vindicate the authority
given by his Majesty to the Court, as long as he shall think
proper that the powers of it shall exist; and, as far as in me
TO THE SUPREME COURT. 183
lies, will not suffer it to be diminished by any authority less
than that from which it was derived. If I am obliged to
submit to force, it shall not be until every effort has been
exerted to prevent it.
“If we submit, from that moment our jurisdiction is limited
'to Calcutta, and our authority but feeble there. A court of
justice, in the ordinary exercise of its civil functions, considered
as hostile by the government of the country in which it resides,
deriving its authority from powers scarcely recognized by that
government, and opposed, instead of supported, by its secret
influence and open force, is in a situation, to which perhaps
no other was ever exposed, except the Supreme Court at
Fort William in Bengal.
“Depend upon it, my dear Lord, the opposition to the Court
in this point, as well as in many others, does not arise from
any zeal for the revenues, or any affection for the natives.
“The protection of zemindars—who are almost universally
collectors of revenue—is a most fruitful source both of power
and of wealth. They are most admirable intermediate agents to
execute all acts of despotism ; and the protection from debts,
or compulsion to pay them, is seldom procured without a pe-
cuniary compensation. Of large sums of money paid on both
accounts, I believe there can be not the least doubt, though
the proofs might be very difficult.
“In the present case, it is currently reported, that the
zemindar of Cossijurah has paid 75,000 rupees for the protec-
tion which he has received. The money is said to be paid to
Mr. Pearse, uncle of Mr. Barnet, chief of Midnapoor ; I will
not vouch for the truth; but believe the report is not without
some grounds. A gentleman had so little idea of the impro-
priety of such a transaction, that he acquainted me that a
native of this country had a demand against a zemindar for a
very large sum of money lent; and that he had not interest
enough with the Council to procure it, and was ready to give
him five amas in the rupee, if he could prevail with the Coun-
cil to suffer him to enforce payment. And the gentleman had
folly and assurance enough to desire me, on account of the
profit he was to receive, to use my influence with the Governor
for the recovery of the debt.
“To the zemindar himself, and to the revenues, if the
Governor General and Council wish justice to be done, it
must be indifferent where their debts are recoverable. All
who know how business is conducted in these provinces, must
know that the parties never attend to it themselves; they at-
tend by vakeels or agents; if not, they must attend on account
of revenues in Calcutta; and, from the intricacies, delays, and
exactions which they perpetually experience, must be in con-
184 OPPOSITION OF THE COUNCIL
tinual attendance; but personal attendance is dispensed with:
It is motorious that they are imprisoned and flogged, and
otherwise punished by their representatives the wakeels.
“There is but one thing which embarrasses me in enforcing
our process: for I should have, no doubt, to punish any
native for contempt in resisting the authority of the Court, as
I think that power incidental; for, without it, we could not
exercise our functions. But should a native, or any other
person, not subject to our jurisdiction, stay a sheriff's officer,
or any one assisting him, in executing the orders of the Court,
I do not see that the Court can have any possible authority to
punish him for it; and it would be in vain to expect justice, in
such an instance, from courts under the influence and absolute
direction of the Company's servants.
“If my word is to be taken—and I speak from positive
knowledge and experience,—I do aver that, except in the
Supreme Court, no justice, civil or criminal, is fairly and
uncorruptly administered, throughout the provinces. . The
Act of Parliament, which made some impression when it was
a new thing, is almost become obsolete; and, with such lights
as you are likely to receive from those who are, or have been,
connected with the Company, I think I may prophecy the
English legislature will never be able to apply remedies to
the numerous evils which are bringing this country to
hasty ruin.
“It is impossible, without having been on the spot, to
know the nature and different sources of corruption. Those
who have been deep in it, are too much interested to reveal
them; and those who have not, make it a point of honour of
doing nothing which may be what they call an injury to the
Sel"W1Cé. . . . . .
“I shall undoubtedly keep my word with Mr. Hastings,
and even go beyond it with regard to our private friendship;
for though I cannot, with all prejudices in favour of him, be
induced to think that he is now acting on sentiments of duty;
yet I revere him for many noble qualities, and believe him, .
when he tells me he is not left to himself in this business.
At the same time, after the frankness and openness with which
I have treated every subject relative to the powers of the
Court, and the claims of the Governor General and Council;
the ready attention I have given to his remonstrances to
accommodate our proceedings to the practices of the provincial
council, the general care and support I have uniformly
afforded to his government, and, after the positive promises
I have repeatedly received from him of private confidence, and
that no acts should proceed from him hostile to the Court,
I must confess, I think I am not without reason to complain
TO THE SUPREME COURT. 185
that a paper* of so much consequence to the power of the
Court, should, by his authority, be circulated through the
country, and,-without any previous communication with me,
—that he had issued orders to resist the Court by military
force, and that he now refuses to discuss with me such points
as portend a difference between the Court and the Council.
“I write now, or rather dictate, without time to revise.
“It is most probable, as what has been done has been long
and secretly preconcerted, that an account of this transaction,
with such glosses as the Governor and Council are able to give
it, may have been transmitted to England by an earlier ship.
I shall not fail, if I have opportunities, to acquaint you with
further particulars as they arise: and when the business is
terminated, shall trouble you with the whole, and perhaps an
enclosure to his Majesty’s Secretary of State, to be delivered,
or not, as your Lordship may deem proper
“With the warmest attachment,
“I am, my dear Lord, &c. &c.
“Fort William, January 11, 1780.
“P.S.. I have not time to write to my friend Dunning. If
your Lordship sees no impropriety in it, may I beg you to
communicate this to him 7” f
This letter to the Lord Chancellor was composed in
a great hurry, and in a very agitated state of mind; for,
although upheld by a sense of duty, my father's affec-
tionate nature could not but be touched to the quick,
by this seemingly irreconcileable quarrel with so old
and intimate a friend. I believe that, even when
most excited, his sentiment towards the Governor
General was far more nearly akin to sorrow than to
anger; in other respects, Coleridge's well-known lines
are but too applicable to the case :—
“Alas ! they had been friends in youth;
But whispering tongues can poison truth;
And constancy lives in realms above;
And life is thorny; and youth is vain;
And to be wroth with one we love,
Doth work like madness in the brain.”
Yet this letter to the Chancellor, however calculated to
excite emotion similar to that which it expresses, never-
theless conveys a much clearer and juster notion of the
* The Persian Manifesto.
f MS. in my possession.
186 OPPOSITION OF THE COUNCIL
grounds of quarrel between the Council of government
and the Supreme Court, than can be collected either
from the insipidity of Mr. Mill, or the ornamented falsi-
fications of Mr. Macaulay. It will also serve to prove
the real motives which afterwards prompted Mr.
Hastings to offer, and Sir Elijah Impey to accept, the
presidency of the Sudder Dewanee Adaulut, a com-
plicated subject, of which the right honourable essayist
seems not to possess the slightest knowledge; albeit he
pronounces upon it in so summary a manner, as to in-
duce some careless readers to believe that he really
knows something about the matter. To those, however,
whose opinion is of greater value, it must appear, that
subjects of this delicate nature—involving the cause of
historical truth no less than personal honour—merit an
investigation of deeper research and better temper than
such writers as Messrs. Mill and Macaulay are either
disposed or qualified to bestow upon them. I shall
therefore go on to develope the true nature of this
business, with a patience and fidelity more adequate to
its importance, though at the hazard of some fatigue.
The dangerous and unbecoming conflict between the
judges and the Council went on apace. It continued
until there no longer remained a rational or dispassionate
man in India, but became alarmed at its progress.
Supported by a conscientious principle, my father
would have died in that breach, rather than have for-
saken his duty as a judge and president of the Court.
Not all the zemindars, sepoys, chiefs of factories, and
revenue officers, in Bengal; nor all the native and
British troops now spread far and wide over the pro-
vinces subject to its jurisdiction, could have wrung
from him the sacrifice of so indisputable a right. Of
this, Hastings was made sensible at last; and for this—
when his temporary excitement had subsided—the
Governor General loved, honoured, and esteemed the
Chief Justice, even more than he had respected him
before : for, when once convinced, he was far too
generous and just not to acknowledge and atone for
every wrong. Several times, indeed, it appears that
Hastings would fain have put an end to this contention;
his own correspondence shows how greatly he was
grieved at its continuance; and—though somewhat
TO THE SUPREME COURT. 187
more tardily—how much he doubted whether he had
been always in the right; but Francis occupied his ear,
and was ever ready with some argument of expediency,
or some mis-statement of facts, to exasperate or mis-
guide his better judgment, against the counsels of a
truer friend.
Besides his great anxiety to neutralize the opposi-
tion of Francis in the Council, while the war was yet
pending, with all the collective forces of Hyder Ali and
his allies, Hastings had, at this most critical juncture,
the strongest motives for gratifying all the superior
servants of the Company, of whom not a few were but
too much disposed to thwart his plans, and to misre-
present his policy.
Now, these selfish agents of the Company, being the
very “vultures” attacked by the Supreme Court, could
not have been more effectually propitiated than by
taking part with them against that Court.
In discussing a case of such delicacy, where it may
well be supposed my feelings as a son and as a friend
are almost equally affected, I may surely be allowed
a moment's pause, ere I presume so much as to hold the
Scales, far less to decide the balance. For Warren
Hastings I would even here make that allowance which
I claim for him on less questionable occasions. His
predominant object was that of a disinterested politician
—to save India, at whatever private cost. My father's
was equally unselfish, nor less patriotic : but he pre-
tended to no politics. Bred a lawyer, and appointed a
judge, he was resolved to uphold the law. Yet would
he fain, if possible, have reconciled his charter of justice
to the exigency of the times. If these were made ir-
reconcileable by the legislature itself, could he adjust
them 2 If he remonstrated with the Government at
home, and with the authorities abroad, without prevail-
ing with either, was he to be blamed for the result 2
Was he not rather to be extolled, if, nevertheless, he
persevered in his public duty at the expense of an un-
appreciable private loss 7 I am no man's idolator, and
though on this side idolatry I reverence no two men
more, I can form as impartial an estimate on the res-
pective characters of the Governor General and the Chief
Justice, as if the one had not been my father, and the
188 OPPOSITION OF THE COUNCIL
other my friend. “Fortunati ambo tº The first will
descend to posterity as a heroic statesman, the latter as
a righteous and uncompromising judge.
That they were not exempt from the frailties of
humanity, nor gifted with supernatural intuition, I am
not so weak as to deny. They may possibly both at
times have been unduly impressed with the relative im-
portance of their own peculiar objects; but that those
objects, either when coincident or disagreeing with each
other, were therefore of necessity base, dishonest, crimi-
nal, or corrupt, is a deduction as illogical as unfair; and
it will require a much more powerful reasoner than Mr.
Macaulay, to establish a conclusion so absurd, as that
the same man could have been at once partial and im-
partial, servile and independent, a firm opponent and
yet a mercenary tool.
Be it admitted, then, that the Governor General’s pri-
mary object was to save British India; and that, in the
unprecedented difficulties in which he was placed, among
other expedients, he grasped at one of the most likely
means to promote that end : and none was more likely,
however irregularly brought about, than unanimity
among the Company's servants.
The contrary humour in certain of these servants had
often deranged some of his best schemes; as any reader
will perceive, if he attentively studies the history of the
war, from its commencement in the year 1777, to its
conclusion in 1782. But greatly, also, did the tyranny,
corruption, extortion, and rapacity, of some of these
same Company's servants, thwart the high-minded
Governor General, and commit the great cause for
which he was nobly contending. These were the abuses
which the Supreme Court attempted to correct; but
Hastings, though he owned the motive, was, for a time,
persuaded to resist the interference; the rather, perhaps,
as during that long and arduous war, he found himself
grow poorer and poorer, while these money-making
Council-men and collectors were growing richer and
more influential every day.
In discharge of their duty, on the other hand, Sir
Elijah Impey and the other judges continued to issue
process. Undeterred by the threats, or by the actually
perpetrated violence of the Council, chiefs of districts,
TO THE SU PRRME COURT. 189
and military men, they sent forth their writs whenever
and whithersoever the law of England prescribed.
The Governor General published a proclamation
authorising disobedience to the process of the Court;
and supported it by an armed force. The Chief Justice,
insisting upon his chartered right, issued warrants for
apprehending the soldiers who acted under the direction
of the Council, and arrested them in the very heart of
their camp; attempts were even made to put this pro-
cess in execution in the highest quarters, civil as well as
military.*
At the beginning of the month of March, the Gover-
nor General and the Members of Council were severally
served by theCourt with summonses, on a plea of trespass.
Mr. Barwell appeared to action, but the rest refused.
The judges endeavoured to show that there could be no
degradation in making appearance, and that the highest
in dignity, no less than the lowest, were bound to res-
pect his Majesty's Court of Justice. This reasoning
had no effect; and Hastings, as well as Francis his new
ally, continued to disobey, and both were clearly in con-
tempt of Court.
In consequence of these events, my father suffered no
less in personal feeling, than in the interests of his
family: so long as he had been on friendly terms with
the Governor General, he had looked forward with no
unreasonable expectation of some share of that patron-
age, which has always been bestowed upon men of emi-
ment station. He had consequently been recommended,
about this time, to procure a writership for one of his
sons,'t a youth of great promise, who, under the
guardianship of his uncle, with the especial superintend-
ence of Dunning, had already distinguished himself at
Westminster, and at Tiverton School. But under the
present circumstances, Sir Elijah displayed his usual
spirit of independence, by declining to ask the slightest
* See First Report from the Select Committee of the House of Commons,
appointed to take into consideration the State of the Administration of
Justice in the Provinces of Bengal, Bahar, and Orissa. Printed in the
year 1782.
º, f My brother, the late Archibald Impey, Esq., well known at the
English bar, and afterwards as Counsel to the East India Company, and
latterly as Commissioner of the Court of Bankruptcy.
190 OPPOSITION OF TII E COUNCIL
favour of any one connected with the East India
Company.
On the 12th of March, 1780, he wrote thus to his
brother :-
“The unfortunate turn that things have taken here makes
it totally impossible for me to be of any assistance to him,
except he was to come out in the service of the Company; for
the Governor General and Council, without any provocation
whatsoever, have committed public hostilities to the Court. I
can do nothing for him myself, and am in no situation to ask
anything of any member of this government. . . . . . .
The contention which I am now involved in, the particulars of
which you may learn from Mr. Dumming, or Sir Richard
Sutton, for I have not time to give you the detail, makes my
remaining extremely disagreeable to me, but both my private
fortune and public duty require it.”
In this confidential letter, which of course was never
meant for publication, Sir Elijah relates in the simplest
terms, an anecdote which does honour to his humanity
and munificence.
A young cadet, who was merely known to him
through a letter of introduction from no very intimate
friend in England, had fallen mortally wounded in a
duel, near his residence. He caused the young man to
be brought'ſſe, his house, where he died; and after his
death, he discharged a debt which he owed to some
native schroff, or banker.
In writing another explanatory letter to Dunning, on
the 2nd of March, about seven weeks after the date of
that long narrative addressed to Thurlow, from which I
have given such copious extracts, Sir Elijah thought
himself under the necessity of resorting to a precaution
which was altogether unusual with him. It is thus ex-
plained in the opening paragraph of the letter itself:-
“You will receive a large packet, and a long letter, by the
Swallow packet, which brings this ; they are in the hands of
the chief mate, Mr. Tomkyns. I am in that situation as not
to think it prudent to trust any papers of business in the
packet made up by the Company’s servants.”
Opening his heart to Dunning more freely than he
could with Thurlow, he gave a detail of his many wrongs
and sufferings since the commencement of this quarrel
between the Court and Council, solemnly declaring to
TO THE SUPREME COURT. 191.
the man from whom he concealed nothing, that he had
only endeavoured to do his duty, and that the violence
all proceeded from the other side.
His words to Dunning are these :—
“The public outrages committed against the Court, have
been without any provocation. The power which is exerted
against me would not have existed in the hands in which it is,
if I had not myself helped to keep it there, and it was used
against me at the time when, to all appearance, I was living
in the utmost confidence and familiarity with the possessor
of it.”
He goes on to complain, like the frank, straight-
forward man he was, of the temporising policy of his
friend :-
“I was,” he says, “a guest in his house, when he medi-
tated these hostilities, without my receiving the least intima-
tion of his discontent with the Court. I only learnt it by the
military force of the Company being used to oppose the pro-
cess of the Court in the ordinary course of justice.
“This has hurt me much more than any anxiety which I
felt during all the time that I knew Clavering was endeavour-
ing to ruin me in England. . . . . . . No situation
can possibly be more irksome. I have scarcely a social com-
fort beyond my own family: the flattering eapectation of
credit and reputation, from the happiness I was bestowing on
this country, and the benefits I thought would from thence
have been derived to my own, totally blasted, and my private
fortune and public duty compelling me to remain where I
must waste my life in perpetual vewation and ineffectual
struggle.”
It is at the time when my father was almost sinking
under the weight of these oppressions, that he is repre-
sented by Mr. Macaulay as an imperious tyrant, exult-
ing in his success, and taking advantage of the powers
given him by a defective Act of Parliament, to cripple
the hands of government, and disturb the internal tran-
quillity of British India . But did it never strike this
clumsy logician, that here, as in other instances, he is
detecting his own preceding fallacies? If Sir Elijah
Impey had sold his conscience, or bartered his inde-
pendence to Mr. Hastings; if, in the case of Nuncomar,
there had been any truth in that atrocious libel—every
allusion to which, while it blots my page, will justify
192 OPPOSITION OF THE (JO U NC I,
the bitterness of its invective, if that charge were not
utterly and scandalously false, how could my father
ever after have ventured to oppose his alleged accom-
plice How could he have resisted Hastings in his
attempt to banish Clavering from his seat in Council'
Or how could he afterwards have stood forward, boldly
and fearlessly—as Mr. Macaulay is obliged to allow—
in defence of the dignity of his Court? Would he have
dared to drive such a man, possessed of such a secret,
to the verge of fury and desperation ?
Though born, and living at Calcutta, I was but an
infant at the time; but I know from other sources,
besides the touching letters which are now before me,
the anguish of mind, most acutely felt, though manfully
endured by my father at this painful crisis; nor am I
ashamed or afraid to confess, that the confidential
papers, thus, for the first time, forced by public slander
into public notice, have caused in my own breast a
feeling of unmitigated wrath and defiance.
While the disputes between the Court and Council
were still raging, but before they had reached their
climax, Mr. North Naylor, a gentleman employed by
the Governor General and Council as attorney to the
Company, was attached by the Supreme Court for con-
tempt; and, on his refusal to answer interrogatories,
committed to prison. The committal took place on the
lst of March, and his release on the 16th of the same
month. He was in his usual state of health when
committed ; he was equally so when released ; and in
the same health he continued for some months after.
But he them fell ill of one of those diseases of the
climate, to which men of delicate constitutions, or care-
less in their way of living, are very obnoxious. He was,
and had been ever since his arrival in India, the friend
of Sir Elijah Impey, to whom he had been recommended
as one of the protégés of Dunning, and was the dearer to
him on that account.* Private friendships and par-
* Mr. North Naylor was son of the Rev. Thomas Naylor, of Ashburton,
in the county of Devon. John Dunning—as many an anecdote reminds
us—was a Devonshire man, with strong local attachments. He was a
native of Ashburton, and when raised to the peerage in the spring of 1782,
took the title of Baron Ashburton of Ashburton, in the county of Devon.
Naylor was not the only Devonshire man he recommended to the patron-
age of his friend in India.
CO M MITTAL OF M R. NAYLOR. 193
tialities of course could not influence the Court in the
discharge of its duties; but Naylor's imprisonment, in
which my father took no active part, did not for a
single moment interrupt the good feeling which existed
between him and the Company's attorney. My father
watched over him in his sickness, and grieved for his
decease. In a letter written between the 2nd and 10th
of August, my father says to Dunning :-
“All your young men are well except Naylor; who, in
truth, has hardly ever been quite well since he has been in this
country, for any length of time together. Lately he went to
a place called Biercaul with a party for the benefit of the sea
air. He profited much by it, but on his return up the river
to Calcutta, he caught what is here called an Ingelee fever,
from the name of a swampy, unhealthy, moxious country,
which he passed. It was intermittent, with rhost violent
paroxysms ; one of the most dangerous disorders in this
country, when caught at the season of the year in which it
attacked him, the middle of June, at the commencement of
the rains. He recovered from that, and went up the river to
confirm his health by change of air, continued well till about
ten days ago, when he returned to Calcutta with a violent
disorder in his bowels, which has turned out a confirmed dys-
entery. From the debility and exhausted state to which his
habitual illness and late severe fever reduced him, there can
be, on this new attack, but small chance of his recovery; and
he proceeds so rapidly to his dissolution, that I fear I shall
mot be able to despatch this without my apprehensions for
him being fatally realized. I have a great ſove and esteem
for him. He is an excellent young man, and has given me,
since the scrape he got into [the attachment and committal by
the Court], most convincing proofs of his attachment to me.
On account of his health, I have suspended giving any
judgment on the attachment by the Court. I see him myself
every morning, and my cousin Fraser goes to him every
evening. No man can be taken more care of.”
In a subsequent letter to the same common friend,
dated the 19th of August, he thus announces his
death :—
“What I so much dreaded has happened. My poor Naylor
is no more. He expired early this morning. He has left one
daughter by his deceased wife. I inclose you his will, and
an estimate of his estate drawn up by his most intimate
friend, Mr. Joseph Cator, one of the guardians of his child
O
194 COMMITTAL OF M R. NAY LOR.
and executor of his will.” The dear child will be very amply
provided for; as, besides what Naylor has left her, Mr. Cator,
who had always undertaken to educate and provide for her,
had, with uncommon generosity, settled £5000 upon her be-
fore poor Naylor's death.”
The young lady, Miss Harriet Naylor, whom I well
remember as a most amiable and interesting orphan,
though living till the day of her marriage in her
guardian's house, was always treated by my parents with
the same tenderness as if she had been a daughter of
their own. The playmate of their children, and one of
the most frequent of their guests, she looked up to them,
and regarded us, next to the family at Beckenham, as
her dearest friends. That lamented lady is no more;
but the sons of Joseph Cator—than whom there needs
no more honourable witnesses—live to attest the truth,
or at least the tradition of those facts; and yet—can it
be believed?—between malice and ignorance, efforts have
been made to represent Sir Elijah Impey as the perse-
cutor of North Naylor The atrocious attempt was not
begun until Francis returned to England, and Naylor
had been two years in his distant grave. It was then
that, instigated by Francis and his willing dupes, Sir
Gilbert Eliot, as in the case of his brother Alexander's
death, took advantage of Naylor's decease, to prefer
those charges against my father, which, had they been
living, both would have repelled with astonishment and
disgust, as equally monstrous and absurd.
Such is the real history of the Select Committee of
the Commons having inserted in their first report of
1782, that “Naylor's death had been, in all probability,
hastened, if not caused, by his sufferings under confine-
ment; ” then, grossly misrepresenting the facts of the
case, they described his imprisonment as having been
rigorous, and upwards of a month in duration, and
affirmed that he had died “soon after his release upon
bail.”:F
When foul insinuations and direct falsehoods like
* Naylor's will, a copy of which is among my father's papers, bears date,
the 10th of August, 1780, only nine days before his death. Appended to
the will, was a very confidential letter from Mr. Cator to Sir Elijah, which
is also in the same collection of MSS. in my possession.
f See Report of the said Committee, p. 48.
#: º:
; ; ; ; ; . *
comMitTAL or M.R. NAYLOR. 195
these could be admitted into parliamentary reports, and
published to the nation, six years before the threatened
impeachment of Sir Elijah Impey, we need not be much
astonished at the accumulated falsehoods which found
their way into those charges, when the fury of impeach-
ment was at its height; when the Governor General
and the Chief Justice were considered by the managers
to º implicated, and both alike discredited,
ruined, and helpless victims.
I have advisedly abstained from any strictures, be-
yond the few words in my preface, on the gross igno-
rance, and shameful neglect of documentary evidence,
displayed by the Company’s clerk and historian, Mr.
Thornton; but here I think it is imperative on me to
expose one glaring instance of that writer's ignorance
and temerity.
Mr. Thornton, whose general style is as unornamental
and dull as any business letter of the Court of Directors,
becomes flighty and rhetorical wherever he finds Mr.
Macaulay is so; and, in narrating the history of Sir
Elijah's administration of justice in India, his thoughts
and phraseology are little else than an imitation, as far
as in him lies, of those exhibited in the Edinburgh
Review, by his great paragon Mr. Macaulay. But,
as if resolved to have one topic all to himself, or
as if to give proof that he too could be figurative
for the nonce ; or, perhaps, to make a vain show
of research and familiarity with a subject which even
Mr. Macaulay has not ventured to revive; Mr.
Thornton makes a solemn stand on this allegation :
and boldly advancing beyond the mere insinuations of
the Committee's first Report, he directly charges my
father with extra-judicial tyranny and oppression in
the committal of Mr. Naylor.” It is too painful to soil
these pages with the revolting nonsense alluded to ;
but to refute the despicable remnant of this story, if it
has not been sufficiently refuted above, I need merely
say, that Sir Elijah Impey was not in Court—was not
in Calcutta—was not within many miles of that presi-
dency during the greatest part of these proceedings.
On the 1st of March North Naylor was committed to
* See “History of the British Empire in India.” By Edward Thornton,
Esq., vol. II., p. 145. *
O 2
196 PROJECTS OF THE COUNCIL
prison at Calcutta, on the 16th he was set at liberty.
From the 6th of July, 1778, to the 15th of March, in
the following year, my father was with his family at
Chittagong,” above 316 miles north-west from Calcutta.
He was in ill-health, and my mother brought to bed at
that place, which will account for so long an absence;
and during those seven months, Mr. Justice Hyde pre-
sided in the Supreme Court. It was Hyde, therefore, and
not the Chief Justice, who committed Naylor to prison.
If any harsh words were used, they are doubtless to
be regretted. That Hyde might have used them I
will not dispute; but my father was distinguished
through life for the suavity of his temper; and had he
been present, instead of far away, such words would
never have been uttered by him. He who never re-
sorted to unbecoming language against the most worth-
less criminal ever brought to the bar, could never have
employed it against a man he loved and esteemed, and
whose offence amounted to nothing more than too im-
plicit obedience to his employers.
I have now done with Mr. Thornton. But if
the Honourable East India Company must needs
keep a historian, as the vender of patent razor strops
kept a poet, surely it will behove them to look out for
a writer of more accuracy and judgment.
The decided conduct of the Supreme Court in attach-
ing and imprisoning Mr. Naylor, did not work any
change in the resolute hostility of the Council. Look-
ing up to Hastings as to a sovereign prince, and
believing that the Court must succumb to his authority,
the timid natives almost entirely ceased making any
further application for the Court’s protection. Man
of them indeed—including not a few who had bene-
fitted in person and in fortune by the courage of the
judges, and the protection of English law—were induced
to sign a petition against the Supreme Court.
But Hastings, whatever was the recklessness of his
new ally, was far from being at ease, or satisfied with
his own ascendancy. He had contemned, and for a
time effectually annulled a power delegated by the
Crown, and he doubted whether he could answer for it
* Chittagong, the same as Islamabad. See Major Rennell's “Descrip-
* f the Roads in Bengal and Bahar, &c.”
TOR ADMINISTERING JUSTICE. 197
before his King and country. He therefore very pru-
dently applied for, and obtained, an act of indemnity
against so questionable a measure; and besides this—
though impelled by the most exalted and best-intentioned
motives—he saw that the event was throwing nearly the
whole of British India into a lamentable state of uncer-
tainty and confusion. Various schemes were either sug-
gested to him, or originated in the resources of his own
fertile mind, to avert the catastrophe. At one time the
project was started, and strongly advocated for trying
all civil—including revenue causes—like criminal causes
of action, by jury.
But the jurymen were all to be British subjects and
servants of the Company—military officers, writers,
revenue collectors, and the like. This would have
made the monstrosity complete, for one and the same
party would then have been plaintiff, witness, º
and jury, in the same cause! “Who,” exclaims Sir
Elijah in one of his letters, “who ever heard of trying
a thief by a jury of highwaymen º' But the whole
scheme, with its inevitable tendency to increase the
power and tyranny of the Company's servants over the
natives, was luminously exposed by the Chief Justice to
the Lord Chancellor, to Dunning, Sutton, and others,
as well in India as in England. Neither the Regula-
ting Act, nor the Charter, gave the Council liberty to
adopt any such excessive change.
The Company's advocate,” and such other lawyers as
were at Calcutta, and dependent on the Governor
General and Council, demurred, and shook their heads
at this preposterous expedient. Even Francis was com-
pelled to give it up as impracticable, and highly dan-
gerous to himself. Still, the government felt that
matters could not remain as they were, but that some-
thing must be done to restore a semblance of justice,
and an appearance of harmony between the two con-
flicting authorities.
At last, after a variety of opinions, the Council came
to these conclusions:—“That the provincial dewannee
adauluts should be re-organized ; that the natives who
sat in them, should be all turned out, and their places
filled by junior servants of the Company :" tha is, by
* Sir John Day. -
198 PROJECTS OF THE COUNCIL
young and inexperienced writers, whose interests, both
official and personal, would thus necessarily be thrown
into the balance of justice against the natives. And
these remodelled courts were to be independent of the
Supreme Court at Calcutta; and if the natives were to
be allowed any appeal, that appeal was to be made, not
to his Majesty's judges, but to the Governor General
and Council.
The star of Hastings must have been eclipsed by the
intervention of Francis when it underwent this disastrous
change. But Hastings repeatedly declared in private,
“ that he was impelled by others: that he was not a free
agent.” These very expressions occur in more than one
of my father's letters written at the time.
Mr. Barwell continued to be strongly opposed to all
these projects; declaring that it was, and ever had been,
his opinion, that the Council or government had not,
nor ought to have, anything to do with the ordinary
administration of justice; and that no real exercise of
legal power in India, resided anywhere except in the Su-
preme Court.
After the words I have cited, my father added the
following in a narrative too long to transcribe —
“Mr. Barwell said, if he was called on in England, he
should give the same opinion. This is not the only conver-
sation in which Mr. Barwell has said the same thing; he has
constantly held this language from the first establishment of
the Court. I have experienced so much candour, openness,
and sincerity from that gentleman, that there is not a man
existing on whose word I can more confidently rely; I know
him to be possessed of that manly honour which renders him
incapable of professing sentiments he does not really entertain;
of disavowing any part he has taken, or even of submitting to
an explanation, except for the purpose of not being misunder-
stood by those for whom he entertains a regard.”
But the proposed measure was carried and adopted,
not on the 11th of April, as stated by Mr. Mill, but on
the 28th of March.* On the last-named day,+
* Here the error of a few days is not perhaps of much importance, histo-
rically or otherwise; but gross errors of date, which really are of import-
ance, occur in Mr. Mill’s “History of British India; ” and as this writer
made pretensions to great correctness, and has found admirers who mistake
dullness for accuracy, his chronological slips ought to be pointed out.
Mill is even guilty of an error in the date of Colonel Monson's death,
FOR ADMINISTERING JUSTICE. 199
“The Governor General and Council established another
plan for the administration of justice throughout the provinces;
by which they ordained that there should continue to be
courts of civil judicature in each of the grand divisions therein
mentioned; and that over each of these courts, a Company’s
covenanted servant should preside under the title of Super-
intendent of the Dewannee Adaulut, and his jurisdiction was
to be independent of the provincial councils; that the pro-
vincial councils should try and determine all revenue causes;
and that the Superintendent of the Dewannee Adaulut should
try and determine all other civil causes. They also established
various other regulations. By these regulations an appeal
was given, in certain cases, from the Dewanmee Adaulut to the
Governor General and Council, in the Court of Sudder
Dewannee Adaulut.”*
By these regulations, which it took some time to
carry into effect, the revenue causes were to be separated
from the other causes, but the judgment and decision
of both were to be left solely to the covenanted servants
of the Company.
Now, the great mass of the civil causes to be tried in
the country arose out of the revenue claims of the Com-
pany; and were, by their very nature, inseparable from
revenue causes. Two results were inevitable : I. The
natives found that both the provincial councils and the
new dewannee adauluts held it their primary duty to
increase the amount of money paid by their several
districts into the Calcutta treasury: II. The members of
the provincial councils, and the superintendents of the
dewannee adauluts, found that they could rarely, if ever,
agree where the jurisdiction of the one court ended, and
where that of the other began. There was no separa-
ting the inseparable. Neither the members of the pro-
vincial councils, old or new, nor the junior servants of
the Company appointed to preside over the adauluts,
were men that had received a legal education—some of
them had received but little education of any kind.
a very important event, attended by immediate consequences. Monson
died on the 25th of September; Mill says, “early in November, 1776,
Colonel Monson died.” I could, but I need not, multiply examples of
this kind.
* Appendix No. 3, to First Report from the Select Committee appointed
to take into consideration the state of the Administration of Justice,
A.D. 1782.
200 PROJECTS OF THE COUNCIL
This doubly confounded the confusion; this of itself
made the quarrels between the two bodies more
irregular, violent, and illogical, than they otherwise
might have been ; but even if the two separate offices
had been filled by the very ablest lawyers in Great
Britain, the disputes about respective authority and
jurisdiction could never have been set at rest, for they
were inherent in the act of Council of the 28th of March.
This new conflict, to which not a single allusion is
made by Mr. Macaulay, or by any of the defamers from
whom he takes his cue, soon embarrassed the Governor
General and Council quite as much as their disputes
with the Supreme Court. It became ultimately, and
not long after, the main cause which induced Hastings
to appoint the Chief Justice President of the Court of
Appeal or Sudder Dewannee Adaulut. This, as I shall
show in the next chapter, was strongly avowed by
Hastings himself, and accordingly entered upon the
minutes of Council.
On the 16th of August, after he had had time to
watch the operation of this divided authority, Sir Elijah
Impey wrote to the Lord Chancellor:—
“The corruption and mal-administration in the adauluts, or
country courts of justice, in which the members of the pro-
vincial councils presided, was so notorious, that when the
resolution was taken to oppose the legal functions of the
Supreme Court, it was thought necessary at least to preserve
some appearance of having justice administered in the pro-
VIIlC6S.
“The Government, therefore, abolished the old adauluts,
and erected new ones; over each of which is placed one of the
junior servants of the Company as judge, who is (which was
never exacted before of any judge of an adaulut) to take an
oath to administer justice impartially, and not to accept bribes.
The gentlemen appointed are . . . . .”
Here the Chief Justice enumerates the names of no
less than six gentlemen, affixing the dates, and place of
each appointment. These names, for obvious reasons,
I shall not repeat. He then continues,
“Each of these, except the two last, decides, not only on
more property than the Supreme Court, but, I am inclined to
think, than all the Courts in Westminster Hall put together.
Though the provisional councils had complained of the
FOR ADMINISTERIN. C. JUSTICE. 201
adauluts, 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.
“Mr. Morse, one of the advocates of the Supreme Court,
had applied to the members of the Council and obtained a
promise of being appointed a judge to one of these courts;
but when it was known to the Company’s servants, it raised
so general a clamour, that the promise was not adhered to.
“It would maturally be imagined, as these judges are
selected not from the senior servants of the Company, that
they were persons who had distinguished themselves by their
abilities or integrity. But none of them, except, perhaps,
Mr. Campbell, are eminent for any particular qualifications
for their offices, either by knowledge of jurisprudence or the
lauguages of the country. One of them, Mr. *****, is of
the meanest capacity, totally illiterate in his own, and igno-
rant of any Eastern language, and one of the most expensive,
dissipated men in the country. I doubt whether he is of
a 96.
*Another, Mr. **** ****, considered the salary of
the office, viz., 1200 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 hesitated some time whether he would
submit to the test.
“There has not been the least intimation, public or private,
of these innovations in the country courts to me, and I believe
there has been none to the other judges.
“The Sudder Adaulut, or Court of Appeal, which had
been discontinued ever since the appointment of the Governor
General and Council, was at the same time revived, but has
not yet sat. Causes of consequence involving rights to ze-
mindars, &c., are not, as formerly, determined there; but by
the Board at large, simply on the report of an English gentle-
man called Keeper of the Khalsa [Exchequer] Records,
without any evidence coming before the members of the
Council.”
In the same letter to the Lord Chancellor—of which
nearly a counterpart was written to Dunning, in order
to be shown to Sir Richard Sutton and other common
friends—my father thus dwelt upon the condition to
which the Supreme Court had been reduced.
“Although our process beyond Calcutta has been almost
universally disobeyed, the sheriff's officers abused, and in
202 PROJECTS OF THE COUNCIL
some cases the plaintiffs imprisoned, * yet the orders of the
Governor General and Council have spread such terror, that
but one application has been made to the Court in consequence
of these outrages. . . . . . . This will prove the
truth of my assertion, that the natives have been given to
understand that the powers of the Court had been, by the
authority of Government, restrained to the town of Calcutta.
Beyond it, in fact, they are annihilated, though the jurisdiction
of the Court be ever so clear. The business of the town
merely, will not furnish subsistence to the advocates, attorneys,
and officers of the Court.
“A clerk of the Quarter Sessions having been removed from
his office without cause, sued for the salary which had been
fixed to his office, and enjoyed by his successor, and was suc-
cessful. Since which, the Governor General and Council have
absolutely refused to hold quarter sessions; and from that
time the town has been without constables or other peace-
officer than the Sheriff.f
Also in this same letter to the Chancellor, Sir Elijah
alluded to the harsh and unjust manner in which he
and his brother judges were treated in money matters;
to the serious shocks which his health had sustained,
and to his earnest desire to be provided for anywhere
in England, or even in Ireland. The extracts will show
how little my father had gained, in a pecuniary sense,
by five years' residence, and five years’ trouble and vex-
ation in India.
“It is now two years since the Company have allowed bills
to be drawn on them; and when they do, I am not by any
means certain that the judges will be indulged with any share
of them by the Council here. I understand that the Directors
make considerable profits in England by granting to old
Indians at home remittances for money here. I feel the not
procuring the Company’s bills very severely, for I know of no
means of remittance, except by sending specie, which I shall
not be able to do, after payment of insurance and freight, at a
smaller loss than 25 per cent.
“This you will think very heavy to me, when I assure you,
though I live with the greatest attention to economy, which
is sharpened by my wish to return to my family and friends,
so many contingents, expenses from sickness and other causes,
* This is “a reign of terror” not mentioned by Mr. Macaulay or by
Mr. Mill.
# From the original draft, in my father's hand, in my possession.
FOR ADMINISTERING JUSTICE. 203
continually arise, that I have not been able to lay up more
than £3000 in any year. When, indeed, and how, we shall
have our salaries paid here I cannot tell: they are at present
in arrears, and when we apply for payment to the treasurer,
the answer is, there is no money in the treasury. tº gº e
“My health, I thank God, is at present better than it has
been for some time past; but, as I am subject once or twice a
year to violent attacks of the cholera morbus, here called the
nort de chien, and to other disorders in my bowels, and to a
nervous affection which seized me about two years ago, and
nearly deprived me of the use of my right arm,” leaving a
numbness in my fingers and hands, which has rather increased
this summer; I cannot but consider my health as pre-
carious.
“As I should not, except under the most urgent necessity,
desert my post, without express license from England, it
would be a great relief to me, if I could be indulged—should
my constitution absolutely require to be recruited by my
native air—with leave to absent myself from it, till restored;
or for such limited time as should be thought reasonable to
try the experiment. . . . . But my finances are such,
that I must run all risks rather than resign my office. Should
what I request be not thought unreasonable, though it is a
delicate subject to mention, I must beg leave to suggest to you
the expediency of the appointment of an efficient judge as
successor to Lemaistre, for the transacting the ordinary busi-
mess of the Court. I do not again trouble you with solicita-
tions for a seat in Council. If you think it advisable, I have
before said enough of it; if you do not, too much. All that
I will add on that head is, that notwithstanding what has
passed, and though I do not think I have been treated as I
deserved, yet Mr. Hastings and I continue on good terms, and
I esteem him so much the properest man to hold the office of
Governor General, that I should give him my most hearty
support, as, indeed, I should think it my duty to do, to any
other person, whom his Majesty should think worthy to be
honoured with so high a trust.
“After all, I should think myself much happier to obtain
an office in England or Ireland, which would furnish me with
a competent livelihood, than to enjoy much greater emolu-
ments in this country.”
In going to India, my father had anticipated a diffi-
cult and laborious career, but one which would be
* Of this last symptom my father had frequent returns during the re-
mainder of his life.
204 AUTHORITY OF THE COUNCIL.
benficial to that country and to England, and honour-
able to himself. He grieved for the overthrow of these
expectations, and doubly felt the indignities offered to
himself as a faithful servant of the Crown, and a zealous
lover of his country. In a narrative of events which he
drew up at this time, he says,
“Many circumstances combine to render the contentions I
am now involved in particularly disagreeable; it proceeds
from a quarter, from whence I think it should not have come;
the benefits which I was conscious of having diffused in this
country, and flattered myself with the hope of deriving to my
own, are at one stroke annihilated ; the King’s power is in-
sulted in my hands ; I personally incur in the public eye
degradation almost to contempt. . . .
“The suffering the territorial acquisitions to remain in the
Company, and the clear right of the Crown to them to be con-
sidered as equivocal, creates in the Company, who must know
the weakness of its title, a perpetual jealousy of every act of
sovereignty eatercised by the King, and a desire to thwart it.
Too impotent to enforce obedience to its orders, when the will
or interest of their servants are opposed to them, it is still
strong enough, with their hearty concurrence—which it is
always sure to have in every measure which increases their
power, or promises them immunity—to resist his Majesty's
authority, and almost to keep back his Royal name from
public motice.
“It is a settled principle in this government, to enforce
nothing which cannot be done by its own authority. To call
in the aid of a court of justice is considered as showing imbe-
cility, and a confession that its authority does not extend to
the case. Hence—though Calcutta is, for convenience, order,
and health, the worst regulated, and most in want of police, of
any civilized town in the known world, but one bye-law has
been tendered to the Court by the Council, and that forced
from them under very particular circumstances. Every other
regulation that has been made for the town has been by edict
of the Council, and not by any ordinance authorised by Act of
Parliament.”*
In the same narrative, Sir Elijah states the frequency
and impunity with which the Act 13 George III., had
been evaded or set at defiance, the continuance of
forbidden monopolies, and the perseverance of the Com-
* From the original MS. in my possession,
MonoPoll Es of THE COMPANY's SERVANTs. 205
pany's servants in private trading in spite of the Act.
[Among these private traders and speculators were, at
different times, several Members of the Supreme Council,
and in this number, Philip Francis was particularly
accused of trading in company with his brother-in-law
Macrabie.] My father dwells at most length upon
the opium monopoly.
“Opium, notwithstanding the Company’s orders, still
continues a monopoly. It was granted to Mr. John Mac-
kenzie, who having been an ensign on the Bombay establish-
ment, and secretary to the late General Wedderburn, by the
means of the present Attorney General, was appointed by the
Company a factor here: and soon after his arrival, in conse-
quence of the recommendations he brought out with him, was
put into a very lucrative office—that of customs-master.—
The profits from this monopoly are immense. They have
been extorted not only by compelling the cultivators of poppy
to sell it to the monopolist at the price fixed by him, and by
imprisonment and corporal punishment to prevent the disposal
of it to others, but by forcing, by the same means, those whose
lands are not employed in that culture, to convert it to the
raising of poppy only. The opium grows chiefly in Bahar.
No private force would be sufficient to these ends. By some
agreement with Mackenzie, the chief and provincial council at
Patna, who are in possession of full powers over the province,
became the monopolists and sole traders in opium. Mr. Kerr,
a surgeon, who had some dealings in that commodity, and was
obstructed by the Patna council, made his complaints to the
Governor General and Council, but could not prevail on them
to interfere; he then commenced a qui-tam action against
certain members of that council, for trading contrary to the
statute. But either fearing to incur the odious name of
informer, or having compromised the matter, he has not gone
on with the suit. This is the only essay to a prosecution on
the Act since the erection of the Court. But I do not re-
member, out of the different suits ordered by the Directors,
that one has been commenced. Of this I am sure: mome
have been prosecuted with effect. And whilst the King's
authority remains secondary in India to that of the Company,
and no stronger controul is exerted over its servants, than can
be felt from the impotent hands of despised Directors, I may
take upon me to predict, not only that no public suits will be
instituted by Government, but private prosecutions on the
Act will be so discountenanced, that few will have resolution
enough to engage in them.
206 REMAIRKS ON THE ESTABLISHMENT
“My attention has been always anxiously directed to
support the authority of Government, and to facilitate the col-
lections of the revenue; and though patronage, influence, and
arbitrary will, may have met with some small check, the legal
and avowed powers of the state have received no diminution
from the Court. They might have acquired strength, if the
administrators of it would have condescended to make use of
the King's anthority in his Court of law.
“I can recollect no ea ample in history, of any court but this,
which has been erected by an authority different from that
which has been in the possession of the evecutive power of the
country in which it was established, and which the eaecutive
power undermined by its own secret influence, and opposed by
its open hostility.”
Without being anything of a lawyer, that ex-law-
giver for India, Mr. Macaulay, may surely comprehend
the difficulties of a situation like this. I am no lawyer
myself, and regret it, though I have no cause to blush
at disclaiming a knowledge to which I never pretended;
but it has been my happiness and pride to associate
and converse with many able and virtuous men of that
profession, who have bestowed no slight attention upon
this subject, and are in every way competent to give a
sound and unprejudiced opinion upon it. By their tes-
timony, living as well as dead—if not sufficiently guided
by my own common sense and honest investigation—I
am justified, as far as I have yet gone, in these con-
clusions:—
I. That the primary establishment of a Supreme Court
of Justice in a province, where hitherto there had
scarcely been any laws recognisable by a mixed popu-
lation, except the will of a commercial company and its
agents, was in its nature of the highest consequence;
and, in its various and complicated details, one of ex-
ceeding difficulty to conduct.
II. That to compile rules and regulations for such a
court, invested with wide and ample powers, to check the
most inveterate and crying abuses, to protect and con-
ciliate natives accustomed to none but the most mis-
taken notions of jurisprudence, to put down the tyranny
of their foreign rulers, and to uphold the authority to
which both were amenable—required not only an en-
OF THE SUPREME COURT. 207
lightened study and capacious mind, but one which
came armed, moreover, with every constitutional sup-
Ort.
III. That far from receiving that support, the Court
itself, thus newly organised, and exposed to every vulgar
prejudice, had, besides, from its very beginning, to
struggle with every possible obstruction from those
quarters where it was, by right, entitled to all assist-
a. Il C6.
IV. That in spite of their accumulated labours, per-
plexities, and wrongs, the Chief Justice and Assessors
of the Supreme Court—embarrassed by the ambiguity
of their Act and Charter, discountenanced and neg-
lected by the ministers at home, and opposed with open
violence by the provincial government—did, nevertheless,
all they could, by legitimate means, to maintain the
dignity and efficacy of their commission.
I have arrived at these conclusions by advancing no
speculative theory, but by deductions drawn from pre-
mises which rest upon substantial and well authen-
ticated facts. .
Whatever may be the effects, or no effects, produced
by this documental record on the minds of men reso-
lutely bent on slander, and pre-determined to shut their
eyes to all evidence, I cannot but believe that the dis-
passionate reader, after an attentive perusal of this
Chapter, will widely differ in his estimation of those
which Mr. Macaulay has taken upon trust from Mr.
Mill, and Mr. Mill from the impression made by Mr.
Francis, respecting the judicial administration of Sir
Elijah Impey, and the jurisdiction and authority
claimed by the Supreme Court. Upon this subject I
shall myself say no more. There is a letter to Sir
Richard Sutton, in which my father reasoned on
the point of law as to the refusal of the Governor
General and Council to put in appearance when sum-
moned by the Court, and in which he demonstrated that
his proceedings thereupon were strictly conformable to
English law, and to the Regulating Act and Charter.
That letter is too long to be quoted here, and has not
sufficiently a documental character to be inserted in my
Appendix. But, by the time this volume is published,
208 REMARKS, ETC.
it will be lodged, with the rest of Sir Elijah's papers, in
the Library of the British Museum, where any inquirer
may consult it.
With this additional reference, I persuade myself that
sufficient argument will have been used, and sufficient
vouchers produced, to explain and verify this portion of
my narrative. º,
C H A P T E R W III.
COALITION OF FRANCIS AND HASTINGS-THE QUARREL
AND DUEL–EXTENSION OF POWERS OF THE SUDDER
DEWANNEE ADAULUT-SIR ELIJAH IMPEY ACCEPTS THE
PRESIDENCY—FRANCIS RETURNS TO ENGLAND, ETC.
SIR ELIJAH IMPEY clearly foresaw that the compact
between Hastings and Francis would not be binding;
and, that their sudden political friendship would be
succeeded by an exasperated enmity. He knew the
rectitude of his misguided friend too well, to believe
that he could persevere for any length of time in a
wrong course; and he had too long experienced the
faithlessness of his unprincipled enemy, to expect that
he would ever adopt a more honourable one.
No great man was ever yet without a sense of proper
pride; and the pride of Warren Hastings was daily
wounded by the concessions he found himself obliged to
make to his former adversary, and by the arrogance with
which they were exacted. He had not forgotten the days
of Clavering and Monson, when Francis had declared
—“We three are king :” he recognised a revival of the
same haughty tone, and was not disposed to crown his
colleague anew, or to elevate him into a dictator.
For proofs of the galled and irritated state of the
great Governor General's mind at this period, I need
only refer to his own letters, as published by Mr. Gleig,
whose record will retain a permanent and substantial
value, when the baseless fabric of his reviewer shall
have sunk into oblivion.
P
2] () COAL ITION OF FRANCIS AND IIASTINGS.
On the 5th of May, 1780, my father wrote to his
friend and physician, Dr. Fleming, who was then in the
camp, with the army of Sir Eyre Coote:—
“I have been made a sacrifice to new connections. But
however close the present union may be between Mr. Hastings
and Mr. Francis, I believe you will join with me in thinking
that it cannot be durable. . . . . But though the
treatment I have received is not what I had reason to expect,
I am resolved not to act as adversary to him [Hastings] in
any respect, but in the cases in which he has or shall make it
necessary to me so to do for self-defence.”
It should be stated in fairness, that Mr. Barwell’s
great anxiety to quit the Council and return to England,
had had much to do in forcing upon Mr. Hastings this
incompatible league and alliance. At the united prayer
of the Governor General and Chief Justice, Barwell had
repeatedly deferred his departure; but he had not ceased
to represent that he must be gone as soon as he possibly
could. At last, at the end of March of this year, 1780,
seeing that the coalition was formed, and hoping that it
would act well, or that Francis would at least be true
to the more important parts of his engagement, Barwell
sailed for England. Hastings had soon cause to regret
his departure. My father had his misgivings from the
first. In a letter to Dunning, dated the l8th of August,
1780,-the very day on which the duel was fought
between Hastings and Francis, he said,
“Mr. Barwell left this country on the strongest assurances
that Mr. Francis would coincide with Mr. Hastings, or he
would never have gone.”
There was never any sincere coincidence, except when
the Member of Council carried the Governor General
along with him into extremities against the Supreme
Court. To divide two such friends as the Governor
General and the Chief Justice, was an enjoyment suited
to the malignant nature of Francis.
The ship in which Barwell embarked had scarcely
descended the Hooghley, ere the quarrel between the
Council and Court rose to its highest pitch. Every
overture for reconciliation was argued down by Francis,
or through his agency counteracted and annulled. One
THE QUARREL. 21 |
unalterable condition of his alliance was, that there
should be disunion—for enmity he could never effect—
between the former friends. Hastings must either feel
the piercing thorn of Francis for ever in his side, or
altogether renounce his legal monitor, and the cause of
justice legally constituted in India.
But when the Member of Council attempted to make
usurpations upon the authority of the Governor General,
in matters wherein the Supreme Court was not con-
cerned, and when he again began to thwart the policy,
and to disturb the arrangements under which the
war was so successfully proceeding * on the side of
Bombay, Poona, and Surat; when disgrace upon dis-
grace was everywhere falling upon our flag in the
western world, to be redeemed only by our triumphs in
the east; then it was, that, after fruitless representations
and remonstrances, the spirit of Warren Hastings rose
superior to the base mind which had held it too long in
thraldom.
As early as the month of June, he accused Francis of
duplicity; by the beginning of July, he complained to
friends at home of his seeking to break the compact;
and before the end of that month, he found that the
renewal of his opposition had renewed alike every
former difficulty,+exposing him to the hazard of open
º derision, and defeat. “I am not Governor,”
wrote Hastings in the bitterness of his soul, “all the
powers I possess are those of preventing the rule from
falling into worse hands than my own.” +
A flagrant breach of the contract on the part of
Francis brought matters at last to a crisis. On the
14th of August, 1780, Hastings, in answering a minute
of Council, declared :—
“I do not trust to Mr. Francis's promises of candour, con-
vinced that he is incapable of it. I judge of his public conduct
by his private, which I have found to be void of truth and
honour. . .”
“Judging it unbecoming,” writes Hastings to a friend, “to
surprise him with a minute at the Council-table, or to send
it first to the secretary, I enclosed it in a note to him that
evening. The next day, after Council, he desired me to
* Under General Goddard and Captain Popham.
ºf Letter to Mr. Sulivan, as given by Mr. Gleig.
P 2
212 THE DUIEL.
withdraw with him into a private apartment of the Council-
house, where, taking out of his pocket a paper, he read from
it a challenge in terms. I accepted it, the time and place of
meeting were fixed before we parted, and on the morning of
the Thursday following, between the hours of five and six,
we met.” +
If the shot of Francis had proved fatal to Hastings,
two things, in all probability, would have happened :-
I. Francis, for a brief space of time, would have
succeeded—as, being the challenger, he seems to have
contemplated—to all the rank, power, and patronage,
of Governor General.
II. British India would have been as utterly lost as
the thirteen provinces of Americal
But, happily, there was no sacrifice of life, and it was
not Hastings, but Francis, that was wounded. “Unpro-
tected by the impenetrable mist” that then hung over
him as the author of the Letters of Junius, tº the Member
of Council was not invulnerable to his adversary's ball.
They had both fired nearly at the same moment.
Francis fell, and was conveyed to a house in the neigh-
bourhood; but in two hours it was ascertained that his
life was in no danger.
Writing on the day of the event, my father gives the
following account of it:—
“This morning Mr. Hastings and Mr. Francis fought with
pistols. They both fired at the same time; Mr. Francis's
ball missed, but that of Mr. Hastings pierced the right side
of Mr. Francis, but was prevented by a rib, which turned the
ball, from entering the thorax. It went obliquely upwards,
passed the back-bone without injuring it, and was extracted
about an inch on the left side of it. The wound is of no
consequence, and he is in no danger. Mr. Francis had de-
parted from his engagements with Mr. Hastings, and a
minute from him accusing Francis of breach of the faith and
honour which he had pledged, provoked the challenge from
Francis, which ended in this duel. Shall we have no end put
to the distractions of this Government 2 . . . . Sir Eyre
Coote, who has been absent from the Presidency for nine or
ten months, is returning, with intentions amicable to Mr.
Hastings. Mr. Francis and Mr. Wheler form a majority now,
* Letter from Hastings, dated the 30th of August, as given by Mr. Gleig.
t C. Mac Farlane. “Our Indian Empire.”
RETURN OF SIR. EY RE COOTE. 21.3
and next week the balance will be turned on the other
side.”*
Four days after writing this, Sir Elijah said in a
postscript to a duplicate of this letter to Dunning :-
“Mr. Hastings and I, notwithstanding what has passed,
are on good terms. It is in vain to think of a real reconcilia-
tion between Mr. Hastings and Mr. Francis. Mr. Francis,
since the duel, has, by a formal message, refused to admit a
visit from Mr. Hastings; and, by the same, declared that he
would not meet him but in Council. This, he said, proceeded
not from resentment, but what he esteemed propriety.ºf
Whoever is Governor General, be it Mr. Hastings, or any
other person, he ought to have his hands strengthened both
with mew powers and determined friends in Council. Nothing
but vigorous and uniform measures, can give a chance of prop-
ping this tottering empire even for a few years longer.
“Hyder Ali has entered the Carnatic, laying all waste with
fire and sword. He is in the neighbourhood of Madras: the
garden-houses are deserted, and the people all in the utmost
consternation.
“Our salaries were paid yesterday.”
This last underlined sentence is full of much signifi-
cance; for it shows that immediately after this duel, and
final rupture with Francis, the Governor General held
up the olive branch to the judges of the Supreme
Court, whose pecuniary claims had been purposely
kept in arrears for many months, evidently at the
instigation of Francis. Sir Eyre Coote returned, took
his seat in Council, and forwarded this reconciliation.
Excuses, expressed chiefly by an altered demeanour, and
in deeds rather than words, were offered to the Chief
Justice for the insults to which he had been exposed.
It was confessed that the newly-remodelled provincial
councils and adauluts had ended in a complete failure;
and it was intimated that some important change must
take place—some decisive measure be taken to restore
harmony to the country, and justice to its native popu-
lation.
* Letter to Dunning, dated the 18th of August. On the 20th of
August, my father wrote an account of the duel to his brother, in very
nearly the same words.
+ I believe there were few persons at Calcutta that did not smile at
Francis's new-found sense of propriety, or that were unaware of his
implacable resentments.
214 EXTENSION OF POWER OF THE
On the 29th of September—just six weeks after the
duel—the Governor General entered this minute in
Council :-
“The institution of the new courts of dewannee adaulut
has already given occasion to very troublesome and alarming
competitions between them and the provincial councils, and too
much waste of time at this Board. These, however, manifest
the necessity of giving more than an ordinary attention 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 encroachments upon it.
“To effect these points, would require such a laborious and
almost unremitted application, that, however urgent or im-
portant 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 already overcharged.
“That which I have to offer, will, I hope, prove rather a
diminution of it. By the constitution of the dewannee courts,
they are all made amenable to a superior court, called the
Sudder Dewannee Adaulut, which has been commonly, but
erroneously, understood to be simply a court of appeal. Its
province is, and necessarily must be, more extensive. It is not
only to receive appeals from the decree of the inferior courts,
in all causes exceeding a certain amount; but to receive and
revise all the 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. Hitherto the
Board has reserved this office to itself, but has not yet entered
into the execution of it, nor, I will venture to pronounce, will
it ever with effect, though half of its time were devoted to this
single department. Yet, without both the support and con-
troul of some powerful authority held over them, it is impos-
sible for the courts to subsist; but they must either sink into
contempt, or be converted into the instruments of oppression.
“This authority, I repeat, the Board is incapable of ea'er-
cising ; and if delegated to any body of men, or to any in-
dividual agents, not possessing in themselves some weight in-
dependent of mere official power, it will prove little more
effectual. The only mode which I can devise to substitute
for it, is included in the following motions, which I now
submit, on the reasons premised, to the consideration of the
Board:—
“That the Chief Justice be requested to accept of the
charge and superintendency of the office of Sudder Dewannee
SU DDER T) EW A N N E E A DAU LUT. 215
Adaulut, under its present regulations, and such other as the
Board shall think proper to add to them, or to substitute in
their stead; and that on his acceptance of it, he be appointed
to it, and styled the Judge of the Sudder Dewannee Adaulut.
“I shall beg leave to add a few words in support of this
proposition 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 popular prejudice, as its
real tendency will be misunderstood by many, misrepresented
by more, and perhaps dreaded by a few.
“I shall patiently submit to the consequences, because I am
conscious of the rectitude of my intentions, and certain that
the event will justify me, and prove, that in whatever light it
may be superficially viewed, I shall be found to have studied
the true interests of the service, and contributed the most
effectually to its credit.
“The want of legal powers, except such as were implied in
very doubtful constructions of the Act of Parliament, and the
hazards to which the superiors of the dewannee courts are
exposed in their own persons, from the exercise of their func-
tions, has been the cause of their remissness, and equally of
the disregard which has been in many instances shown to
their authority; they will be enabled to act with confidence;
nor will any man dare to contest their right of acting, when
their proceedings are held under the sanction and immediate
patronage of the first member of the Supreme Court, and with
his participation in the 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 tendency, that
I believe every Member of the Board foreboded the most dan-
gerous consequences to the peace and resources of this govern-
ment from them. They are at present composed; but we can-
not be certain that the calm will last beyond the actual vaca-
tion, 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 eatremities, prove fatal.
“The proposition which I have submitted to the Board may,
216 ExTENSION OF POWER OF THE
nor have I a doubt that it will, prove an instrument of con-
ciliation with the Court; and it will preclude the necessity of
assuming a jurisdiction over persons, exempted by our con-
struction of the Act of Parliament from it; it will facilitate,
and give vigour to the course of justice; it will lessen the
cares of the 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 the Court,
where that portion of authority which is proposed to be given,
is given only to a single man of the Court, and may be revoked
whenever the Board shall think it proper to resume it.”
On the 24th of October, there was another consulta-
tion in Council, nearly a month having been allowed
for deliberation on the question, whether Sir Elijah
Impey should or should not be president of the Sudder
Dewannee Adaulut. Sir Eyre Coote, modestly profess-
ing a soldier's ignorance of the law, supported the Go-
vernor General, wishing the experiment to be tried, but
reserving to himself the right of voting against it, if here-
after he should find that it proved detrimental either to
the government or to the community. He said in his
minute of consultation, that this, his assent, was “for
the trial of an expedient which might be attended with
favourable consequences, and not for its absolute estab-
lishment.” -
Now it seems to me, that this brave and unpretending
veteran, explained the nature of the arrangement far
better than any of those who professed a clearer insight
into the subject. It was experimental,—it was the trial
of a provisional means,” resorted to under most difficult
and embarrassing circumstances, and at a moment of
great danger; it was never intended as an absolute or
permanent establishment, either by the Governor
General, the Chief Justice, or the puisne judges, who
approved of the arrangement—as they expressed it—
“pro tempore.”
Mr. Wheler, who, it will be remembered, had been
appointed in England to succeed Mr. Hastings as Go-
vernor General, on the mistaken supposition that he
had resigned, but who had afterwards accepted the seat
* As I shall presently show, in his own words, Hastings himself em-
phatically declared that it was a temporary remedy, adopted through the
urgency of the case.
SU DIDER DEWANNEE ADAULUT. 217
in Council vacated by the death of Colonel Monson—
had usually, but not always, voted in opposition to the
Governor General. He adhered to the same course in
this instance; and acting, no doubt, as he ever had done,
upon fair and honourable principles, now entered a very
long minute against the proposition. He expressed,
nevertheless, great deference and respect for the cha-
racter and learning of the Chief Justice; but still
thought that the expedient proposed by Mr. Hastings
did not fall within the scope of the Regulating Act, and
doubted whether the Governor and Council could legally
grant the appointment. He also thought that the pro-
posed measure would be injurious to the power and
splendour of the Governor and Council. “Such an
influence,” said he, “possessed by the Chief Justice of
the Supreme Court, might too much hide the government
from the eye of the natives.” He accordingly suggested
various other expedients: “1. That the Council, reser-
ving to itself the right of hearing all appeals, should
introduce into the court of appeals the Company's own
chief law officer, the Advocate General, Sir John Day;
who, if a judge of appeals should be created, had the
most natural right to it. 2. That the Supreme Court,
and Governor General and Council, might sit together
as a court of appeals. 3. That one of the inferior
judges might advantageously be substituted for the
Chief Justice. 4. That, what would be better still,
the judges should sit in rotation.”
Mr. Wheler did not explain why it would have been
more consistent with the Regulation Act to confer the
appointment on Sir John Day than on Sir Elijah Impey.
They were both officers appointed by the Crown: Sir
John had been very jealous of his privileges and pre-
cedence in that capacity, over all the Company's ser-
vants. This had not prevented him, however, from
having already accepted an increase of salary by a grant
from the Council, for which he lay under a censure of
Parliament at that moment. He had also much ob-
structed the business of the Supreme Court, though he
did not go all the lengths of his employers. As little
did Mr. Wheler make it appear why an inferior judge
would have been more eligible in conformity with the
Regulating Act; or what advantages would have been
218 EXTENSION OF POWER OF THE
gained by the judges sitting in rotation; or what pur-
pose could have been answered by the Supreme Court
and Supreme Council sitting together, except to intro-
duce upon the bench itself those unbecoming disputes
which it was the very object of the new Sudder
Dewannee Adaulut to set at rest. I venture upon
these comments only to explain the reason of my dis-
sent from Mr. Wheler's suggestions, as far as relates to
their practical operation; not as implying, in the re-
motest degree, any question as to their motive. Mr.
Wheler and my father, though differing sometimes
widely in their opinion of men and measures, always
expressed the highest esteem for each other, and never
ceased to live in harmony together.
Francis entered a minute still longer, and more wordy,
than that of Wheler. He, too, but with none of his
colleague's sincerity, professed great deference to the
character and learning of the Chief Justice. As all
present in Council, and every European in Calcutta,
knew the circumstances of his crim. con. trial, and the
undisguised hatred he had ever since borne to Sir Elijah
Impey, the author of Junius was very emphatic on this
point, as those are always apt to be who are conscious
that their assertions must be disbelieved. He entered
thus into his long minute:
“I hope it is unnecessary for me to say, that no idea of
personal disrespect to the Chief Justice, can be intended by
anything I shall offer on the public question before me; if
any expression that may appear to have such a tendency,
should escape me, I disclaim it.”
Long before this Francis had secretly represented, to
his correspondents in England, the Chief Justice as the
judicial murderer of Nuncomar; and within a few
months, being himself then in England, he was spread-
ing that abominable calumny now openly, now clandes-
timely, by word of mouth and in printed pamphlets. No
new light could have broke in upon him. He knew every-
thing connected with the Nuncomar case as far back as
the year 1775—he never pretended to have made any
after discoveries—yet at the close of 1780, he could de-
clare, under his own hand, that he had no disrespect to
the Chief Justice Is it not almost incredible that any
SU DDER DEW A N N E E AIX AULUT. 210
faith should ever have been given to the testimony of
such a man 7
With equal consistency, and in no less pointed terms,
Mr. Francis revived the recollection of the late violent
contest between the Supreme Court and Council, touch-
ing the jurisdiction of the Court, and then added—
“The Chief Justice cannot be supposed to have changed
the opinions which he has at all times so steadily maintained;
and those opinions would lead him to submit to the juris-
diction in many instances in which the Council, upon their
principles, would resist it. Thus the Council, by making the
Chief Justice Judge of the Sudder Dewanmee Adaulut, would
put into the power of the very man with whom they have been
contending, to give up what they hitherto insisted on as their
essential rights.”*
Notwithstanding this opposition to the motion of Mr.
Hastings, but with the approval of Sir Eyre Coote, it was
resolved on the same day—the 24th of October—“That
the Chief Justice should be requested to accept of the
charge and superintendence of the Sudder Dewannee
Adaulut, under its present regulations, and such other
as the Board shall think proper to add to them, or to
substitute in their stead; † and that on his acceptance of
it, he be appointed to it, and styled the Judge of the
Sudder Dewannee Adaulut.”f On the very next day,
before anything had been settled as to salary or emolu-
ments, Sir Elijah Impey accepted the charge and su-
perintendency of the office; expressing to the Governor
General and Council his sense of the honour conferred
upon him by the trust confided to his care. He mani-
fested also great readiness to devote his vacant time to
the service of the public.|
* The arrangement did, in matters of appeal and revision, give this
power to the Chief Justice; and hence arose that tranquillity which Mr.
Macaulay can attribute only to the effects of a “bribe” given to a British
judge in the shape of a paid place; a place, be it remembered, of most
difficult and laborious occupation.
f Many alterations and reforms were contemplated in the provincial
councils and adauluts, and were carried into effect by Hastings shortly
after the departure of Francis. Men of better education and better
morals were put into the adaulut courts; and the worst of the function-
aries left in those courts were kept in awe by the knowledge that appeals
lay with the Chief Justice, and by the certainty that he would sharply
revise their proceedings.
# Extract from Bengal Consultations in East India House.
| See his letter as printed in the First Report of the Select Committee,
220 SIR ELIJAH IMPEY
Immediately after this adjustment, Francis, who had
talked of returning to England, prepared for the voyage,
calculating that he could now carry with him the means
of ruining, or at least of procuring the recall* of Sir
Elijah Impey. On the 12th of November, before
the Governor and Council made the tender of the
salary and allowance, the Chief Justice wrote to his
brother—
“Since my last, Mr. Francis has declared his resolution of
vacating his seat in Council. He proceeds to Europe on
board the Fow, Captain Blackburn, who will sail either the
latter end of this or the beginning of next month. This, I
apprehend, will create an opening for the new arrangements
of Mr. Hastings's government; the first symptom of which
is, that, notwithstanding the disagreeable contests, during
which I have made it my duty to support the independence of
the Supreme Court against the aggression of Government, the
Governor and Council have solicited me to accept the super-
intendency of the native courts of justice, and to preside in
the tribunal of dernier appeal called the Sudder Dewannee
Adaulut. Such a trust, reposed in me 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, cannot but be flattering to me. This new office
must be attended with much additional labour; yet, in the
hope that I may be able to convert these courts, which, from
ignorance and corruption, have hitherto been a curse, into a
blessing, I have resolved to accept it. No pecuniary satis-
faction has been offered or even mentioned to me, but I do not
imagine it is intended that my trouble is to go unrecom-
penced.”f
On the 22nd of December, a month and ten days
after the date of the preceding letter, the Board of
Council at Calcutta, resumed the consideration of the
Governor General's minute proposing the salary and
* This he contrived by means of Mr. Burke's ascendancy over the mind
of Lord Rockingham, during his lordship's last short administration, in
1782. The Earl of Shelburne, on the resignation of Lord North, having
been called upon to arrange the new cabinet, had placed the Marquis at
the head of it, and retained for himself the office of First Secretary for the
Southern Department, where, shortly after, yielding to the preponderance
of the Rockingham party—among other measures which he did not ap-
prove—nevertheless consented, by an official letter, which I shall hereafter
quote, to the recall of Sir Elijah Impey, upon the sole charge of accept-
ing this appointment.
f MS. Family Letters.
ACC EPTS THE PRESIDENCY. 221
allowance to the Chief Justice, and agreed to the pro-
position that it should take place from the date of his
appointment; and the Court of Directors were advised
of the appointment.*
In the meanwhile Francis had left India, having
sailed in the Fow on the 3rd of December. His depar-
ture contributed most materially to that peace and una-
nimity, the cause of which is so grossly misrepresented
by Mr. Macaulay, but of which the real enjoyment was
an inappreciable benefit, as well to the natives of India,
as to the Europeans, who either ruled or resided in the
settlement, and were amenable to its laws. It was to
obtain this blessed end, not for the base love of lucre,
which has been imputed to him, that my father was in-
duced to accept a new and toilsome office, at a time
when his health was much shattered, and required rest
instead of an increase of labour. On the 27th of
January, 1781, he wrote to Barwell—
“The Sudder Dewanmee Adaulut is placed under my
management. It will be no agreeable thing to me, but as it
was the Governor's act, I am contented.
“The resignation of Francis, and the inability of Wheler,
make me think it is barely possible, if my friends would exert
themselves, that I might now be put in Council. This has
been suggested to me. You, who are on the spot, will know
the feasability of it.”
Sir Elijah incurred great labour, and not a little ex-
pense, in drawing up rules and regulations for this
Sudder Dewannee Adaulut. His disorders were
seriously aggravated by this increase of toil. But he
soon doubted the propriety of taking any pay or allow-
ance whatsoever, without the previous consent of his
Majesty's Government, which had appointed him Chief
Justice of the Supreme Court; and on the 4th of July,
1781, many months before he could by any possibility
know how successfully Francis was blackening his cha-
racter in England, for accepting the new office, my father
addressed a letter to the Board, informing them, “that
he should decline appropriating to himself any part of the
salary anneared to the office of Judge of the Sudder
Dewannee Adaulut, till the pleasure of the Lord Chan-
* Extract from Bengal Consultations in the East India House.
222 CON DUCT OF SIR. E.I,IJA II
cellor should be known.* Sir Elijah Impey did more for
nothing, than Mr. Macaulay has since done for the
enormous sum of money which was paid to him during
his residence in India.
Accompanying this letter to the Council, there was
the fruit of many month's hard labour, in the shape of
a code, which Sir Elijah had compiled, of rules, orders,
and regulations, for the Sudder Dewannee Adaulut, &c.
Of this code, the Board expressed their warm and
entire approbation :-
“We cannot,” they said, “testify in too strong terms our
sense of the trouble you have taken, and the ability with
which you have executed and compiled this laborious work,
which we have ordered to be made public as soon as copies
can be printed, both in its present form, and in the languages
of the country; it being our desire to render them of public
and permanent utility, not doubting that they will be pro-
ductive of the most salutary effects to the inhabitants of these
provinces, by the introduction of a uniform administration of
justice, and by facilitating its process.”
With respect to his scruples about accepting the
salary as Judge of the Sudder Dewannee Adaulut, they
said,
“We can offer no opinion upon that resolution, which ap-
pears to have proceeded from a delicacy of which you yourself
can be the only proper judge. But we must express our
regret that you should have thought it necessary to prescribe
to yourself this forbearance, because the labour and importance
of the office which you have accepted from us would most
certainly entitle any person who possessed it to an adequate
recompense, and must, in our estimation, be considered as
more especially your due, from the very qualifications which
are immediately connected with the only circumstance that
could have given occasion to your doubts of the propriety of
receiving it.” -
Sir Elijah's doubts, however, were not removed by
this letter; and he not only refused to accept the salary
offered to him, but he kept a regular account of the
fees paid into the Court during the very short time that
he presided over it, in order that such monies might be
paid into the treasury of Calcutta. And, that these
* Extract from Bengal Consultations, in the East India House.
DURING THIS PRESIDENCY, 223
monies were so paid, I have a most authentic and official
evidence, which I shall presently produce. -
My father's preparatory labours were long and
arduous; but he did not preside over the actual busi-
ness of this new court longer than six months, during
which time, the receipt of fees and other payments
amounted only to £2548 14s. 8d., or thereabout.*
Some men may have an alacrity in sinking into infamy
and acquiring wealth; but it would have been difficult
for any man, even if he had put all these proceeds into
his pocket, instead of paying them into the treasury as
Sir Elijah did, to have grown “infamous and rich’’ upon
them : yet these are Mr. Macaulay's words. During
my researches in the East India House, I discovered
the following letter and official account, which seem
to me so important and conclusive, that I prefer placing
them under the reader's eye in the body of my book, to
throwing them into the appendix.
Extract from Bengal Revenue Consultations, November 15th,
1782.
To the Honourable the Governor General and Council, &c. &c.,
in their Revenue Department.
Honourable Sir and Sirs,
I have the honour to transmit to the Governor General and
Council, a true copy of the accounts made out by the ac-
countant and treasurer of the Sudder Dewanmee Adaulut, of
all sums of money, as well received from the Mofussil de-
wannee adauluts, as in the Sudder Dewannee Adaulut, on
account of deposits during the months of April, May, June,
July, August, and September, 1782, which said copy is
signed by the accountant and treasurer, and countersigned by
the Judge of the Sudder Dewannee Adaulut; and likewise my
reports for the months of April, May, June, July, August,
and September, 1782, verifying from what judges of Mofussil
dewanmee adauluts I have, during that period, received, as well
the accounts of the sums of money required to be transmitted
from them to the Sudder Dewannee Adaulut, and also the other
accounts, papers, transcripts, proceedings, and records, re-
quired to be transmitted by the courts of Mofussil dewannee
adauluts; and when I have not received the same, ascertaining
from whom I have not received the same; and where I have
received part, ascertaining what part I have not received,
* I have taken the current rupee at 2s.
224 SUMS RECEIVED IN THE ADA UILUTS.
together with the names of the defaulters in that behalf, ac-
cording to the eighty-ninth and ninetieth articles of the regula-
tions for the administration of justice in the courts of Mofussil
dewannee adaulut, and in the Sudder Dewannee Adaulut,
passed in Council on the 5th of July, 1781, which said copy
and report are hereunto annexed. *
I have the honour to be,
(Signed) E. IMPEY.
Fort William, October 25, 1782.
An account of the sums of money received from the Mo-
fussil Dewannee Adauluts, as in Sudder Dewannee Adaulut,
on account of deposits during the months April, May, June,
July, August, and September, 1782.
Received of Mr. William Johnson, Re-
gister of the Sudder Dewannee Adau-
lut, on account of deposits, from the 1st
of April to the 30th of September,
1782 . . . . . . . . . . . . . . Sicca Rupees 10695 13 0 12407 3 0
Received of Mr. John Champain, Judge
of the Mofussil Dewannee Adaulut, at
Derbungah, on account of deposits,
during the months April, May, June,
1782. . . . . . . . . . . . . . . . . . . . . . . . . .
Received of Mr. Richard Goodlad, Judge
of the Mofussil Dewannee Adaulut, at
Rungpore, on account of deposits, from
the 1st of April to the 30th of Sep-
tember, 1782 . . . . . . . . . . . . . . . . . .
Received of Mr. John Addison, Judge of
the Mofussil Dewannee Adaulut, at
Nattore, on account of deposits, during
the months April, May, June, 1782 723 8 11 839
Received from Mr. Alexander Duncan-
son, Judge of the Mofussil Dewannee
Adaulut, at Dacca, on account of
deposits, April, May, June, 1782. . . . 35 1 8 40 l l 9
Received also of Mr. Alexander Duncan-
son, Judge of the Mofussil Dewannee
Adaulut, at Dacca, during the months
July, August, and September, 1782. . I 19 11 3 138 13 6
Received of Mr. Edward Otto Ives,
Judge of the Mofussil Dewannee
Adaulut, at Moorshedabad, on ac-
count of deposits, during the months
April, May, June, 1782 . . . . . . . . . .
Received also of Mr. Edward Otto Ives,
Judge of the Mofussil Dewannee
Adaulut, at Moorshedabad, during
the months July, August, September,
1782 . . . . . . . . . . . . . . . . . . . . . . . .
1517 14 3 1760 12 0
180 9 9 209 8 3
5
2
1402 6 11 1626 13 2
AND PAID INTO THE TREASURY. 225
Brought forward. . . . . . . . 17806 11 5
Received of Mr. Lawrence Mercer, Judge of
the Mofussil Dewannee Adaulut, at Raje-
haut,” on account of deposits, during the
months of April, May, June, 1782 . . . . 101 || 1 | 17 3 7
N.B. An account of sums of money
received from the following Mofussil
Dewannee Adauluts, omitted to be sent
to the Sudder Dewannee Adaulut in time
to be inserted in the former account.
Received of Mr. Shearman Bird, Judge of
the Mofussil Dewannee Adaulut, at Mid-
napore, on account of deposits, from the
1st of December, 1781, to the 30thf of
February, 1782. . . . . . . . . . . . . . . . . . .
Received of Mr. Alexander Duncanson,
Judge of the Mofussil Dewannee Adau-
lut, at Dacca, from the 1st of October,
to the 30th of December, 1781 . . . . . . 43 3 0 50 || 9
Received also of Mr. Alexander Duncanson,
Judge of the Mofussil Dewannee Adau-
lut, at Dacca, from the 1st of January
to the 31st of March, 1782 . . . . . . . . . .
Received of Mr. John Addison, Judge of the
Mofussil Dewannee Adaulut, at Nattore,
on account of deposits, from the 1st of
January to the 31st of March, 1782 . . 61
Received of Mr. Hugh Austin, Judge of the
Mofussil Dewannee Adaulut, at Burdwan,
on account of deposits, from the 1st of
January to the 31st of March, 1782 ... 1180 7 5 1369 5 2
Received of Mr. Benjamin Grindall, Judge
of the Mofussil Dewannee Adaulut, at
Janjepore, on account of deposits, from
the 1st of January to the 31st of
March, 1782 . . . . . . . . . . . . . . . . . . . .
Received of Mr. Thomas Law, Judge of
the Mofussil Dewannee Adaulut, at
Patna, on account of deposits, from
October, 1781, to March, 1782 . . . . . . 3335 3 0 3702 0 1 1
634 0 0 735 7 0
7
3
()
8
5
3
7
l
71 4 4
1402 7 8 1626 1 4 0
Current Rupees 25487 5 1
(Signed) E. IMPEY,
EDM. MORRIS, Treasurer and Accountant.
* Quaere Rajemal.
† This and one or two other trifling discrepancies occur in the docu-
ment; in consequence of which I returned it to the East India House, to
be compared with the original, and I have received the following obliging
communication from T. L. Peacock, Esq.:—
“Dear Sir, The paper has been compared with the original, and is
correctly copied; it will not, therefore, be right to alter it. It is a mani-
fest clerical error. “I remain, &c., &c.,
“T. L. PEAcock.”
Q
226 SALARY RER USEI) LSY
An account of the sums of money received from the Mofussil
Dewannee Adauluts, on account of fines, during the months
of April, May, June, July, August, and September, 1782.
Received of Mr. John Champain, Judge
of the Mofussil Dewanmee Adaulut, at
Durbungah, for the months of April,
May, and June, 1782, the sum of
Sicca Rupees I () () () Il () 9
Received of Mr. Edward Otto Ives,
Judge of the Mofussil Dewannee
Adaulut, at Moorshedabad, during
the months of April, May, June, July,
and August, 1782, the sum of. . . . . . 106 15 .3 124 1 3
Current Rupees 135 11 0
(Signed) E. IMPEY,
EDM. MORRIS,
Treasurer and Accountant.
Mr. Macaulay might have found these documents
where I found them ; but he preferred the easier process
of defamation ; and without any research, or any know-
ledge at all of the subject, he declared that my father
had grown “infamous and rich,” by his acceptance of
the presidency of the Sudder Dewannee Adaulut. Sir
Elijah was never a rich man ; and if he was infamous,
them is virtue infamous, honour infamous, and an im-
maculate conscience as black as Tophet.
Surely, nothing looks less like selling his conscience
for an additional salary than the conduct of the Chief
Justice throughout this business; nor does it seem as if
it had ever entered into the mind of the Chief Justice,
who must be supposed to have been well acquainted
with the scope of the Charter and Regulating Act,
under which he acted, that there was any illegality in
his accepting the presidency of this remodelled court.
His only doubt was touching the emoluments ; and
therefore he determined not to accept of a single rupee
until his scruples were removed by the highest legal
authority, and until the Government at home, and
Court of Directors, should confirm the appointment
and the offer of the salary. And yet, as he afterwards
showed, there were precedents for his accepting the
SIR. ETLIJAH IMPEY. 227
additional salary without any delay or scruple what-
ever.*
If the Governor General could have bought and the
Chief Justice could have sold a conscience, then Mr.
Hastings must have had the power, within himself,
of paying the price, and Sir Elijah Impey must have
been satisfied to take it at his hands; but the Governor
General had no such power, and the Chief Justice
would take nothing without the consent of His Majesty's
Government, and the approval of the Lord Chancellor
of England,-things not to be obtained clandestinely,
and not likely to be demanded openly by a man
conscious of being engaged in a nefarious compact.
Sir Elijah wrote upon the subject not only to the
Lord Chancellor, but also to the Attorney General
and other eminent lawyers. It has been seen how
frankly he mentioned the matter to his honest right-
minded brother; and he wrote with equal frankness
to his best and most virtuous friends in England,-
to men who would have shrunk from any illegal and
dishonourable action, and from the perpetrator of it.
Mr. Francis, who first raised the outcry, knew per-
fectly well that my father had accepted the onerous
office without any salary. He was himself present
when the proposal was carried to appoint the Chief
Justice to be Judge of the Sudder Dewannee Adaulut.
The word salary was not then mentioned. Francis, as
I have shown, sailed from Calcutta on the 3rd of De-
cember. Now, it was not until the 22nd of December,
that the Board of Council definitely and unanimously
resolved, that a salary and allowance should be attached
to the new office. On the same day, they advised the
Court of Directors of the appointment. Francis, being
on the high seas, could not know what passed at Cal-
cutta on the 22nd of December. Allowing about six
months for the voyage, he did not reach England till
till June, 1781. But it has been shown that, as early
as the 8th of August following, it was known at Cal-
* The amount of the proposed salary has been variously stated. Some
have carried it to as high a figure as £8000 per annum. On the minutes
of the Revenue-council, and in Sir Elijah Impey’s correspondence, it is
specified at £5000 per annum; but as Sir Elijah never received it, or any
part of it, the difference is of no consequence.
Q 2
228 SALARY REFUSED BY
cutta, that he had already accused Sir Elijah of having
accepted the office with the salary.
It would appear then, first, that he had accused him
of what he knew to be untrue; and secondly, that he
had accused him before he left India, which of course
could only have been done by letter. Now, in the library
of the British Museum, there is an anonymous pamphlet,
published by Debret, in 1781, entitled, “Extract of an
Original Letter from Calcutta, relative to the Adminis-
tration of Justice by Sir Elijah Impey.” The Introduc-
tion states, that “it was written by a gentleman in
Bengal to a person of station in England, and received
in October, 1781.” On the title page is a quotation
from Tacitus—“Ut antehac flagitio nunc legibus labor-
atur.” On the fly leaf is a manuscript note, signifying
that the pamphlet was written by Sir Philip Francis;
and, indeed, the style and tenour of the composition, the
coincidence of dates, and the classical malignity of the
motto, all bear the strongest evidence of the fact. And
it seems equally probable, that “the gentleman of station
in England” was no other than Mr. Burke : for all his
biographers agree that he corresponded with Francis
while in India; * and it is too well known how com-
pletely that gentleman had gained the ear of the Com-
mittee to require any farther proof by whom and in what
manner their report was influenced.
By these clandestine means, not only the Select Com-
mittee, which began to sit in 1781, and of which Mr.
Burke was a member, but the Court of Directors also,
were misled into the belief that the Chief Justice had
accepted the office with the salary; so that when they
applied to counsel for their opinion, two out of the four
—Mr. Mansfield and Mr. Rouse—were adverse to the
appointment, though not on legal grounds; while Sir
James Wallace the Attorney General, and Mr. Dun-
ning, who had both been better informed, were of a
different opinion : and the Chancellor, Thurlow, to
whom Sir Elijah had likewise written, warmly defended
him in the House of Lords.
This subject will be made still more clear in a subse-
* It has since transpired through a recent publication of “Burke's
Correspondence,” that their acquaintance began as early as 1773. See
p. 25 of this volume.
SIR ELIJAH IMPEY. 229
quent chapter. Upon the minor charges against my
father, I shall say but little : his very prosecutors seem
to have been ashamed of them. The crushing weight
of scandal lies in the Nuncomar charge, which, if
substantiated, would have made him a judicial mur-
derer; and in this Sudder Dewannee Adaulut charge,
which, had it been proved, would have made him the
meanest of mankind,-a trafficking judge, a lawgiver
capable of selling his soul and conscience for gold!
But the first was disproved, and the last not so much
as even brought forward after all.
C H A P T E R IX.
SIR WILLIAM JONES SUCCEEDS JUSTICE LEMAISTRE-IN-
SURRECTION AT BENARES-DEFEAT OF CHEYTE SING—
HASTINGS’S TREATY WITH ASOFF-UL-DOWLA—SIR ELIJAH
IMPEY'S JOURNEY TO BENARES AND LUCKNOW — HE
RECEIVES THE AFFIDAVITS RELATING TO THE INSUR-
RECTION, ETC.
THE climate of Bengal proved fatal to two out of the
four judges of the Supreme Court. The amiable and
accomplished Sir William Jones, who so efficiently
supported and continued the efforts of Hastings to en-
courage and promote the study of the Oriental lan-
guages, antiquities, laws, and customs, was appointed
to fill the vacancy of Mr. Justice Lemaistre, who died
in 1778-9. Upon his arrival at Calcutta, Sir William
became intimately acquainted with Sir Elijah Impey, to
whom he was the bearer of letters from several common
friends. Among these letters there was one from Lord
Ashburton—Dunning. Sir William was also the
bearer of a letter from Lord Shelburne, his patron, to
Mr. Hastings.
As Sir William did not arrive in India until late in
the year 1783, and as Sir Elijah quitted the country at
the close of that year, their personal intercourse was of
short duration: but, while it lasted, it was of the most
intimate and friendly kind; and when Sir William was
removed by death in India, and his widow returned to
this country, the intimacy between Lady Jones and our
family was renewed.
If Sir William Jones had entertained those notions
on the two cases, of Nuncomar and the Sudder De-
A PPOINTMENT OF SIR WILLIAM JONES. 231
wannee Adaulut, which were afterwards promulgated
by my father's enemies, could this intimacy and friend-
ship have ever existed ? Sir William Jones was an
honourable man, an upright judge, and the declared
foe of everything which bore the name and character of
faction. He had lived in the closest intimacy with Burke,
but when—after his arrival in India—Burke, stimulated
by the malice of Francis, and carried away by his own
impetuosity, declared open war not only against Hast-
ings, and all the friends of Hastings, but also against
every man that was neutral in the quarrel, or that re-
quired evidence before he would commit himself to an
opinion on the case, Sir William met him with a bold and
spirited remonstrance. He loved Burke, and he owed
him obligations; but he could not, in his conscience,
submit to the vassalage which Burke required of him.
The following letter is honourable to the judge, and
contains matter characteristic of the orator and states-
man. It will enable the reader to judge to what an
extent the passions of Burke were enflamed.
“Garden House, near Calcutta,
“April 13, 1784.
“To Edmund Burke, Esq.
“My dear friend, &c.,
“. . . . . You have declared, I find, that if you hear
of my siding with Hastings, you will do everything you can
to get me recalled. What! if you hear it only! without ex-
amination, without evidence! Ought you not rather, as a
friend, who, whilst you reproved me for my ardour of temper,
have often praised me for integrity and disinterestedness, to
reject any such information with disdain, as improbable and
defamatory ! Ought you not to know from your long ex-
perience of my principles, that whilst I am a judge, I would
rather perish than side with any man 7 The Charter of
Justice, indeed, and I am sorry for it, makes me multilateral;
it gives me an equity side; a law side; an ecclesiastical side;
and, worst of all, in the case of ordinances and regulations,
a legislative side; but I neither have, nor will have, nor
should any power or allurement give me, a political side. As
to Hastings, I am pleased with his conversation, as a man of
taste, and a friend to letters; but, whether his public con-
duct be wise or foolish, I shall not, in my present station,
examine, and if I shall live to mention it after examination in
the House of Commons, I shall speak of it as it deserves, with-
232 APPOINTM ENT OF SIR WILLIAM JONES.
out extenuation, if it be reprehensible, and without fear of any
man, if I think it laudable.” +
This is just what my father did, both before the
Commons, and in the House of Lords; these are pre-
cisely the sentiments he always expressed ; and it was
in this spirit that he said, in reference to the party dis-
tractions in India, “ The judges, of course, are of no
party.” The Charter of Justice also made my father
multilateral, without making him a partisan, or giving
him “a political side; ” and yet, without any examina-
tion into circumstances, without any evidence, he was
accused by the vehement, impetuous Burke, of siding
with Hastings; he, also, because Burke had heard cer-
tain clandestine and unauthenticated reports, was not
only threatened, like Sir William Jones, but was actually
recalled; and was, after his recall, subjected to the worst
species of persecution that could beset any man in a
free and civilized country. And simply upon the void
evidence of Burke's parliamentary speeches, and the
speeches and impeachment-articles of men who acted
with him, and under him, historians, reviewers, and
essayists, have held up Sir Elijah Impey to the abhor-
rence of the world.
With a confident hope that every candid and intelli-
gent reader will be sensible of all the bearings of Sir
William Jones's remarkable letter, I pass to other events
which were antecedent to the date of that letter.
I must again disclaim any intention of dwelling upon
the complicated political history of India, during the
last few years of Mr. Hastings's administration. It is
* Correspondence of the Right Honourable Edmund Burke, between the
year 1744, and the period of his decease in 1797. Edited by Charles William,
Earl Fitzwilliam, and Lieutenant General Sir Richard Bourke, K.C.B. In
four volumes. London: 1844. Vol. III., p. 30.
Mr. Nicholls, in his “Recollections,” gives a parallel case to this.
“I put,” says he, “this question to him—i.e. to Burke—‘Can you prove
that Mr. Hastings ever derived any advantage to himself from that mis-
conduct which you impute to him 2'. He acknowledged ‘that he could
mot.' . . . . . . Before the charges were laid on the table, I had
a second conversation with Mr. Burke on the subject. When he found
that I persevered in my opinion, he told me, ‘that in that case, I must
relinquish the friendship of the Duke of Portland.’ I replied, ‘that would
give me pain; but I would rather relinquish the Duke of Portland's
friendship than support an impeachment which I did not approve.’ We
parted, and our intercourse was terminated.” Vol. 1, pp. 293–4.
INSURRECTION AT BEN ARES. 233
very generally known that those were years of unpre-
cedented difficulties and alarms, and that the ability of
no great statesman was ever more severely put to the
test than was that of the truly great, though not always
faultless, Governor General. The expenses of the war
were tremendous, and were left to fall almost entirely
upon the treasury of Calcutta. Thus Hastings was
obliged to raise money in every way he could. No
doubt he occasionally went beyond the line of strict
justice; but the whole country was in statu belli, and the
point at issue was, whether England should be dispos-
sessed by the French, or retain her Indian empire. Some
of the native princes, who owed their political existence
to the power of English arms, and who were entirely
dependent upon the government of Calcutta, were known
to possess hidden treasures of immense amount. In
some cases these princes were nothing but tributaries to
the country, and were bound to aid in the support of
that power to which they owed their musnuds. Man
contributions seem to have been paid with tolerably
good will; but, in some instances, they were refused
or delayed, on the plea of poverty. Cheyte Sing,
the Rajah of Benares, who had owed his rank
and half his possessions to the English, broke
several promises and engagements he had made
with the Calcutta Council. The Governor General,
who saw his resources exhausted at a moment when
money and troops were most wanted, resolved to brin
this rajah to account. For this purpose he quitted Cal-
cutta to proceed to Benares. So little did he anticipate
danger, or the possibility of resistance, that he took
with him little more than the body-guard which at-
tended him on ordinary occasions. He even conducted
Mrs. Hastings with him up the country as far as
Monghire. Arriving at Benares on the 14th of August,
1781, Hastings sent to Cheyte Sing a long paper.
The Rajah replied in an evasive and arrogant tone;
and upon this he was arrested in his own palace
at an early hour of the following morning. The
arrest led to a popular insurrection, in which much
blood was shed, and from the fury of which the
Governor General himself escaped with extreme dif-
difficulty. The Rajah went into the country and raised
234 HASTINGS's TREATY WITH
troops to fight against the English; the Governor
General withdrew to the strong hill fortress of Chunar.”
Troops were marched rapidly to the support of Hastings;
and before the 21st of September, Cheyte Sing was
beaten at all points, and an end put to the insurrection.
Hastings seated upon the vacant musnud a young
nephew of Cheyte Sing, and took the entire jurisdiction
and management of Benares into his own hands. B
this revolution, a prospective addition of about f200,000
per annum was made to the revenues of the Company;
but the Governor General could not find the store of
ready money he so much needed; the flying Rajah
having carried off his hidden treasures with him.
Asoff-ul-Dowla, Nabob of Oude, stood indebted, on
the Company's books, in nearly one million and a-half
sterling. Like the Rajah of Benares, he was entirely
dependent on the Company, and on the protection of
their troops against the plundering Mahrattas and
Rohillas, as well as his own turbulent subjects.
The Nabob had been repeatedly warned that money
must be forthcoming. He was journeying between
Lucknow and Benares, to meet the Governor General,
when he received accounts of the insurrection. He did
not retrace his steps, as might have been expected, but
continued his journey to Chunar. In that fortress,
while 30,000 insurgents were gathering round him,
Hastings calmly negotiated with the Nabob. Asoff-
ul-Dowla protested that he had no treasure to bestow,
but that two ladies in his dominions had far more
money than they ought in justice to have retained.
These two Begums were, one the mother of the late
* It was on this occasion that the rabble of Benares reviled Mr.
Hastings in these doggrel rhymes:–
“Hatee pur houdal ghora pur zeen,
Juldee jao, julde jao, Warren Hasteen ’’
Which may be translated—
Horse, elephant, houda, set off at full swing,
Run away, ride away, Warren Hasting.
And it is to these self-same rhymes that Mr. Macaulay alludes, when he
talks of “a jingling ballad about the fleet horses and richly-caparisoned
elephants of Sahib Warren Hostein,” with which nurses sing their children
to sleep, as if they were sung to the praise of, instead of in triumph over
their enemy This is, doubtless, a trifle; but it is by trifles, no less than
matters of consequence, that the inaccuracies of a writer like Mr. Ma-
caulay, are often liable to detection. g
THE NABOB OF OU IDE. 235
Nabob, Sujah Dowla, the other his wife, and the parent
of the reigning Nabob. It was said that great doubts
might be entertained as to the validity of Sujah
Dowla's testamentary bequests; that the will under
which the Begums claimed, had never been produced;
and that the deceased Nabob could not lawfully alienate
the treasure and territory or jaghires of the state, which
of right belonged to his successor. It was agreed be-
tween Asoft-ul-Dowla and Hastings, that the two
Begums should be dispossessed of a great portion of
their immense estates, and that the Nabob should have
and hold these jaghires; that the Begums' hidden trea-
sures should be seized, and the money paid over to the
Company in partial or entire discharge of the debt which
the Nabob owed to the Company. It was pleaded, in
justification of this seizure, that the two Begums had
promoted insurrection in Oude, and had encouraged
the partizans of Cheyte Sing, immediately after the out-
break at Benares. This much at least appears to be
certain, that there had been commotions in Oude, and
that detachments of the Company's troops had been
attacked by the retainers of the Begums. There were
Englishmen, as well as Indians, who swore to the facts,
that the Begums, or their agents, were privy to the
Rajah's plans, and had sent Cheyte Sing assistance
as soon as he began to collect an army to wage
war upon the Company. The insurrection at Be-
nares happened on the 16th of August; the treaty
of Chunar was signed on the 19th of September.
The Nabob of Oude undertook to obtain possession
of the jaghires for himself, and of the money for
Hastings. He returned to Lucknow, and from that
city he went to Fyzabad, the residence of the Begums.
Those two ladies were very tenacious of their money.
The hidden treasure was not to be found. Severe
and unjustifiable measures were resorted to, not by
Hastings, but the Wabob, to extract a confession; and,
by slow degrees, money was extorted from two eunuchs
of the household, to the amount of about £500,000.
As this fell far short of the estimated amount, other
acts of severity were practised, which I do not mean to
justify; but abundant evidence has been adduced to
prove how much they have been exaggerated. I shall add
236 SIR ELIJAH's Journ EY TO
one more proof. In 1803, Lord Valentia found at Luck-
now, well, fat, and enormously rich, Almas Ali Khan,
on whose sufferings Burke had been so pathetic. After
all the cruel plunderings he was said to have undergone,
this eunuch was supposed to be worth half a million
sterling. He was upwards of eighty, six feet high, and
stout in proportion; he had been an active and intriguing
courtier, he was now almost in dotage, and the Nabob
was eagerly looking after his inheritance. He had been
notorious for the rigour with which he had extorted taxes,
when he administered Oude. The younger of the two
Begums was also alive and hearty and—very rich.* The
money obtained was immediately applied by Hastings to
the support of the ruinous war in the Carnatic; to the
operations on the side of Bombay, and in subsidies to
keep the Mahrattas quiet. But for the money ob-
tained at Fyzabad, India must have been lost.
These pecuniary exactions were continued through
many months, and the most violent of them had not
been resorted to at the time when Sir Elijah Impey,
at the request of the Governor General, received the
depositions which were given in to verify and sup-
port a narrative of the insurrection which Hastings
drew up with his own hand at Benares. Situated as
my father was, and being where he was at the time, it
was impossible for him to refuse taking these depositions;
and he took them in a regular manner, as they would
have been taken by any lawyer, and as they might have
been taken by any reputable party, acting as an amicus
curiae on the occasion. Yet this was included, by parlia-
mentary orators, among my father's crimes; this was
the theme upon which Sheridan exhausted his ribaldry
and abuse—and it is of this that Mr. Macaulay says,
“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. But there was something inexpressibly al-
luring, we must suppose, in the peculiar rankness of the in-
famy which was then to be got at Lucknow. He hurried
thither as fast as relays of palankin-bearers could carry him.
A crowd of people came before him with affidavits against the
Begums, ready drawn in their hands. Those affidavits he did
* See Lord Valentia’s Travels.
B ENARES AND LUCKNOW. 237
not read. The greater part, indeed, he could not read; for they
were in Persian and Hindostanee, and no interpreter was em-
ployed. He 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 palankin, and
posted back to Calcutta, to be in time for the opening of term.
The cause was one which, by his own confession, lay altogether
out of his jurisdiction. Under the Charter of Justice, he had
no more right to inquire into crimes committed in Oude, than
the Lord President of the Court of Session of Scotland to hold
an assize at Exeter. He had no right to try the Begums,
nor did he pretend to try them. With what object, then, did
he undertake so long a journey : Evidently in order that
he might give, in an irregular manner, that sanction which in
a 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 not properly belonging
to it, from the signature of the highest judicial functionary
in India.”
There is not a word in this false and flippant pas-
sage but can be confuted. Sir Elijah Impey made no
hurried journey from Calcutta. He was travelling up
the country, with the intention of going, at least, as far
as Benares, when he received Hastings's request that he
would take the depositions. As the insurrection had
been so easily subdued, and as perfect tranquility had
been restored, to the infinite satisfaction of the great
body of the quiet, industrious population, there was no
great danger in the journey. Sir Elijah was accom-
panied by his lady and the usual train of slow-moving
Indian servants. He took with him his confidential
moonshee, or interpreter, Gunsian Dass; although, as
far as he himself was concerned, he stood in no need
of any interpreter.” There was no racing in palankins,
there was no hurry of any kind.
My father and mother, with their numerous attend-
ants, proceeded by water up the Ganges, as far as that
* Gunsian Dass was one of the most faithful and affectionate of Indians.
He became a sincere and intelligent convert to Christianity. My father,
after his recall, obtained a small pension for him, and corresponded with
him with that kindness and regard which he paid to every deserving man
that had ever been in his service. Among the relics I possess of this
good Indian, is a well-used English prayer-book.
238 SIR ELIJAH's Journ EY TO
mode of travelling was convenient and direct; and after
quitting the river, they proceeded by slow stages towards
Benares. At Monghire they joined Mrs. Hastings, who
had suffered agonies of alarm on account of the Benares
insurrection, and the imminent danger to which the
Governor General had been at one time exposed. This
journey had been projected by my father, not only be-
fore the insurrection had broke out, but even long
before Hastings reached Benares to call Cheyte Sing
to account.
Sir Elijah quitted Calcutta at the end of the month
of July; and the events at Benares had not taken
place till the 16th of August. On the 3rd of Au-
gust, Sir Elijah was at Daudpour,” whence he wrote
to the Governor General. On the 12th of August,
being then, as the head of his letter intimates, “on the
way to Benares,” Hastings wrote to my father, begging
him to send him his route, and the dates of his proposed
visit to each English station, in order that he might be
received with every mark of respect and attention. In
this letter, Hastings ingeniously instructed my father
how to keep his pinnace, on the Ganges, cool, by means
of a canvass awning, and a little mechanical arrange-
ment; which, to make it clearer to his conception, he
accompanied with a slight pen-and-ink sketch. The
whole of this affectionate letter shows the mind of the
writer to have been perfectly at ease. He complains of
the bad conduct of the Rajah of Benares, but anticipates
no resistance, and no difficulty whatever in dealing
with him. It should appear, that at this moment, it
was not even certain that Sir Elijah would go so far
up the country as Benares. The following passage
from Hastings's letter, will sufficiently demonstrate how
slowly my father was travelling.
“I wish you to see Benares, and shall be glad to see you
there: but you must regulate your visit thither by my return
to it, of which I will give you timely notice—a precaution
perhaps not necessary—as my motions are likely to be
rapid, and as you are likely to meet with many stops
in your way. . . . . I am well, and wish you were
as well.” -
* Daudpour is about six miles beyond Plassey, on the road by Monghire,
from Calcutta to Patma. See Rennell's map.
BEN ARES AND LUCKNOW. 239
In fact, Sir Elijah, on quitting Calcutta, had proposed
to inspect the different local courts that were subject to
the Sudder Dewannee Adaulut; and the tour was under-
taken partly for recreation and health, and partly for bu-
siness. And now, may I not ask, what becomes of Mr.
Macaulay's hurried and unconsidered assertion, that Sir
Elijah Impey “hurried” to Lucknow, “as fast as relays
of palankin-bearers could carry him " ? Or how can we
estimate the implication of that writer, that Sir Elijah's
journey had no other object than that of taking the
depositions at Lucknow, “in an irregular manner,” &c.?
When the insurgents had driven the Governor General
from Benares to the rock of Chunar, and when his life
was in peril, he wrote a hasty note, in pencil, to the
Chief Justice. The purport of it was, to request him to
urge on the marching of troops to Chunar, where, for
some time, the Governor General was left with only
fifty men; Sir Elijah did urge on the troops, and pro-
moted, by other measures, the relief of Mr. Hastings
from his perilous situation. My father and mother
remained some time at Monghire, with Mrs. Hastings,
whose health had been seriously affected by her anxiety
of mind.
On the 1st of October, the Governor General wrote
from Benares to the Chief Justice, to thank him and
his lady for their kind attention to Mrs. Hastings.
“She will entertain you,” said this letter, “with the history
of our late successes. . . . . . I see no possibility of
future danger. I have written that I should desire Mrs.
Hastings to proceed to this place; and in that case, I shall
still hope that you and Lady Impey will be of the party.” "
It should appear from these words, that even now
Hastings had some doubts whether my father would go
on as far as Benares. These doubts, however, must
have been removed in the course of a week or two, for
on the 15th of October, I find the Governor General—
still at Benares—writing to Lady Impey :-
“I, with the greatest pleasure, contemplate your near
approach to this place, but cannot suffer you to reach it with-
out giving you that assurance, and expressing the impatience
with which I look for your arrival, and have already begun to
* MS. letter in my possession.
240 SIR ELIJAH's Journ EY To
compute the distance which I hope is daily lessening
between us. Allow me, my dear madam, at the same time to
thank you, which I do most heartily, for your kind attention
to Mrs. Hastings. I shall reckon it amongst the most fortunate
incidents of my life, that on such an occasion, she had the
comfort and support of such society as that of your ladyship
and my friend Sir Elijah.
“I shall have the pleasure of meeting you between this and
Buxar, and hope that the novelty of this scene, and the
beauty and fine air of Chunar, will repay you for all the trou-
bles and fatigues of your journey. The escort of tents will
set off from hence either to-morrow or next day, and will be
on the shore opposite to Buxar, by the 21st.”
It was not until the 25th or 26th of October, more
than two months after the insurrection at Benares, that
Sir Elijah Impey and his lady arrived at the latter city.
The overland journey from India to England is now
commonly performed in much less time than they had
occupied in travelling from Calcutta to Benares.*
After spending some time at Benares, Sir Elijah, who
had the curiosity of a traveller to gratify, readily agreed
to go on from Bahar into Oude, in order to receive the
written affidavits which Hastings was collecting to cor-
roborate his long narrative of the transactions at Be-
nares, and in Oude. Sir Elijah did not pretend to go as
a judge, or even as a magistrate—his jurisdiction could
in no case extend beyond Bahar; but merely to verify
Mr. Hastings's narrative by written depositions to facts
relating to the insurrections at Benares, and to the
troubles excited by the agents of the Begums. And
he determined to proceed, at the Governor General’s
request, not to hold an assize of oyer and terminer, to
try, hear, and decide, upon any case, civil or criminal,—
not to advance any pretence whatever of exercising
jurisdiction over the province which had been the seat
of the transactions; but simply and solely to act as
amicus curiae, and for the specific purpose of collecting
affidavits which Hastings had prepared in his own jus-
tification. Whether true or false, this narrative had
nothing to do with the punishment which had been
inflicted upon Cheyte Sing and the Begums; it was
* The distance from Calcutta to Benares, by Monghire, is computed by
Rennell at 565 miles and 6 furlongs.
BENARES AND LUCKNOW, 241
merely meant to prove to the Council at Calcutta, to
the Court of Directors, and to the Government at
home, that there had been a formidable insurrection
at Benares, and troubles in Oude.
The Governor General’s letters show that all the
service he expected from the Chief Justice was, that he
would take the affidavits, which Sir Elijah or any other
man assuredly could take, without any breach of law.
My father, in effect, did no more than this; and yet, for
this, he is compared to the Lord President of the Court
of Sessions in Scotland holding an assize at Exeter
It is true that the Chief Justice of the Court at Calcutta
had no more right to try the Begums, or any other
criminals at Lucknow, or at Fyzabad, than the Lord
President of the Scotch Sessions had to open an assize
in Devonshire; but there was nothing to hinder either
the one or the other, if called upon so to do, from
justifying the acts of an official man by taking affidavits.
The Lord High Chancellor, or the Lord Chief Justice of
England, might have done all that the Chief Justice of
Bengal did, without degradation of his office; for he
would have acted not in his judicial, but in his private
character; and in his private character, there was nothing
in law, there was nothing in equity, to prohibit the little
that was done by my father at Lucknow. Any private
gentleman might have taken the affidavits. It was not
necessary that he should be a lawyer. The captain
of a man-of-war, nay, even the commander of a mer-
chant ship, is not unfrequently called upon, in foreign
and remote countries, to receive affidavits affecting the
interests or the characters of British subjects settled in
those countries. The insurrection at Benares had been
of too formidable a nature to allow any man in British
India to doubt of its existence; it was not for Sir Elijah
to decide whether it had, or had not, been provoked
by Hastings, in his eagerness to get money to carry on
the war, and to preserve our Indian Empire; he could
no more sit in judgment upon Hastings, than upon
Cheyte Sing and the Begums; but it is clear, from his
declarations upon oath, that he had been induced to
believe, that Cheyte Sing's revolt was pre-concerted,
and that the Begums favoured it by means of their
agents. But while at Lucknow, my father was not
R
242 SIR ELIJAH's Journ EY TO
called upon either to investigate the facts, or to deliver
any opinion on them. He had nothing to do there but
to receive the affidavits, nor did the Governor General
ever expect more from him.
Parliamentary rhetoric may deal in achronisms, but
history ought not. It was made to appear in the
oration of sº-na the same is implied by Mr.
Macaulay's Historical Essay—that there was the
closest connection between Sir Elijah's journey to
Lucknow, and the treatment of the Begums and their
household : but these extremities were not resorted to
by the Nabob of Oude until months after the return of
the Chief Justice to Calcutta; nor does my father appear
to have known anything about those transactions, until
they were revealed, and monstrously exaggerated, in
Hastings's impeachment and trial. In the course of
that trial—on the 6th of May, 1788—my father, who
yºly appeared before the Lords, declared upon
Oath, L
“That his journey to Lucknow in 1781, was merely, and
for no other purpose, but to authenticate the ‘Narrative' of
Mr. Hastings. He himself had recommended that measure
then, and avowed it now, as a method of establishing the
ground upon which Mr. Hastings had acted, and for verifying
the statements he had made in that narrative; that he did not
consider those affidavits as affording grounds for seizing the
treasure, or for resuming the jaghires of the Begums; nor
did he, as a private individual, affix in his own mind any
motive beyond that of authenticating the Benares narrative;
that he was not acquainted in detail with the contents of those
affidavits, neither did he then, nor should he now, acknowledge
that to be necessary.”
During this part of his evidence, Sir Elijah, alluding
to some insinuations which were audibly cast upon his
testimony from the managers' box, said, -
“My Lords, I trust it is understood that I stand here as a
voluntary witness. I am upon oath. I speak to the best of
my recollection; and I have a character to support. That
character the honourable manager shall not invade by any
indirect insinuation. Your lordships will bear me out when I
submit, that were it my intention, I might justly hesitate to
answer many of these questions pending the inquiries re-
lative to myself in another place. But all hesitation I dis-
BENARES AND LUCKNow. 243
dain. I will speak freely and fairly, because I have nothing
to conceal; but with submission to your lordships, I will not
passively allow words to be put into my mouth which I have
never uttered, or conceived in my thoughts.”
To this the lords nodded their assent. Sir Elijah
Impey then deposed, that the confederation of the
Begums with Cheyte Sing, was as notorious as that of
the Jacobites with the Pretender, in 1745; but that
the insurrection had been since subdued, and the
country which he had traversed, reduced to a peaceable
state; that his own retinue was not warlike—not
numerous; he travelled leisurely, with a moonshee, a
surgeon, and two or three hircars: that Mr. Hastings's
situation, at that time, was peculiar, and called for
peculiar assistance: that he considered it his duty to
offer him all the assistance in his power, for the pre-
servation of India, at that critical period. Here Mr.
Burke burst out into this ironical rhapsody,
“O ! miserable state of the Indian Empire O ! aban-
doned fortune of the Governor O ! fallen pride of
England, when mo assistance could be found but that of Sir
Elijah Impey ! a man providentially sent to act in an extra-
judicial capacity, in districts to which his jurisdiction did not
extend . . . .”
“After some pause, Sir Elijah continued to state ‘that
though indeed his sojourn at Lucknow was in no official ca-
pacity, yet he was aware that his character in the country—
and, might he presume to add, some reputation as a lawyer,
not unacquainted with the law of nations—gave that autho-
rity which would have been wanting had they been irregu-
larly sworn before persons unacquainted with the forms to be
observed in such a process; that in Mr. Hastings's position,
at that moment, opposed by the rest of the Council, aban-
doned by his own agents, and acting on his own responsibility,
he considered him entitled to all the support he could afford,
and that that support was not illegal, though extra-judicial.
He admitted that he neither had, nor pretended to have, any
legal jurisdiction in that district; yet, in a situation which
involved a question of international law, he considered his
conduct to be justified by the highest legal authorities.’”
On cross-examination by Mr. Plumer, it was proved
that the affidavits were taken with no “indecent haste,”
—that Hyder Beg, a mussuluman of rank, was not the
only native of high credit who had deposed to the con-
R 2
244 SIR ELIJAH's Journ EY TO
spiracy of the Begums with Cheyte Sing—that several
Europeans of station in the Company’s service had
sworn to the same fact; among whom were Colonel
Hannay and Captain Wade; the latter having made
affidavit, that had he been asked by any indifferent
person, then resident in the province, whether there had
been a rebellion in Oude, he should have “thought the
question put in jest.” In conclusion, Sir Elijah used
words to this effect:
“My Lords, it has been objected to me that I deviated
from my official character, in taking these affidavits; that, in
doing so, I acted as the secretary, or as some have more
coarsely expressed it, as the tool of Mr. Hastings. I did so:
and I am yet to learn that official men are restricted, by the
exact line of their peculiar functions, from doing essential,
though extraordinary service, to the State. The reverse I
acknowledge to have been ever my practice and opinion. I
trust, therefore, that upon examination it will be found, not
only in this instance, but in many more, that I have stepped out
of the ordinary course, to perform a public benefit, and I con-
tend, that herein I have not only done my duty, but more
than, by mere prescription, was required of me. The minutes
of the East India Company, both abroad and at home—the
testimony of various inhabitants of India—native and Eu-
ropean—the recollection of many witnesses examined this
day—the very reports of two committees which have col-
lected evidence against me—and above all, the evidence of
my own conscience, bear witness for me, that I have never
been wanting in the service of my country. I have gone
forth when health, ease, and personal security might have
prompted me to stay behind. I have advised, when I might
have coldly spared my counsel. I have made peace when
I might like others, have formented discord; and when, either
by standing aloof, or leaning to the stronger side, I might
have earned a guilty gain or worthless popularity. But I
thank God, that the memory of these things raises no blush
upon my face, nor compunction at my heart. What I did
then I am free to acknowledge now.”*
To make use of a familiar illustration, I may here
mention, that a master in Chancery, though quietly
seated in his chamber at leisure for any investigation,
* See Topham's Trial of Hastings, where the honest reporter adds—
“At the close of business, several of their lordships discoursed with the
witness; but they never after troubled him to appear before them.”
BENARES AND LUCKNOW. 245
and transacting business in all due form and regularity,
is never expected to be acquainted in detail with the
contents of affidavits sworn before him. Nor in other
cases is it considered necessary for those before
whom affidavits are made, to examine into their
allegations ; it is sufficient if they are regularly
sworn: and that the affidavits presented at Lucknow
were regularly sworn, was in evidence on Hastings's
trial. The affidavits may, or may not, have been
collected in a hurry by Hastings and his friends;
but with this the Chief Justice had nothing to do; and
as more than two months had elapsed between the in-
surrection at Benares and the arrival of the Chief
Justice at Lucknow, and as Hastings was never taken
by surprise, but always methodical, it is presumable
that the affidavits had not been collected in a hurry. It
has been imputed to my father, not merely as an irre-
gularity, but as a crime, that he did not read the affi-
davits; but I trust it has been shown that there was not
even so much as irregularity in his not reading them.
It has been said by Mr. Macaulay that he could not
read them, if he had wished, as they were in Persian
and Hindustanee, and as no interpreter was employed.
Sir Elijah's moonshee, or interpreter, was with him
during the whole time, and the Chief Justice himself
was an excellent Persian and Arabic scholar, and spoke
fluently the Bengalee, if not the Hindustanee dialect.
This is the single instance in which Mr. Macaulay,
in republishing his review as an essay, acknowledges
that he may have been detected in an error by Mr.
Mac Farlane. He concludes that Mr. Mac Farlane
must have had private sources of information. This is
true; but Mr. Mac Farlane also derived the fact that
Sir Elijah Impey was well acquainted with Persian and
Bengalee, from public documents, which were as open
to Mr. Macaulay as to himself, and which Mr. Macaulay
ought to have read, before asserting, in his trenchant
manner, that Sir Elijah was ignorant of the official lan-
guage of the country, and of Hindustanee. Mr. Bogle,
the gentleman who had travelled into Bootan, and
as respectable and as trustworthy a witness as any one
of the hundreds who were examined in the whole course
of these India proceedings, affirmed that Sir Elijah
246 SIR ELIJAH's journ EY TO
spoke both Bengalee and Persian with considerable
fluency; and other evidence to the same effect, will be
found in every printed account of Hastings's trial. If
Mr. Macaulay had chosen to examine things not quite
so public, but still very accessible—the “Bengal Con-
sultations” in the India House—he would have disco-
vered that Sir Elijah knew the Persian language. Mr.
Macaulay sneers at an author far better informed than
himself for having mentioned the Bengalee language;
which he says, in his smart manner, is of no more
use in Oude, than Portuguese is in Switzerland.
This last assertion, will hardly stand the test of
truth; since the Hindustanee, which is spoken in
Oude, and a great many other parts of India ; and
the Bengalee, which is spoken in the lower provinces,
are cognate dialects. But there is reservation and sup-
pression, unfairness or ignorance, in the sentence which
conveys this sneer. The mass of the affidavits that
were not in English were in Persian ; and, therefore, a
knowledge of Persian was quite enough to have enabled
the Chief Justice to read most of the affidavits given
in at Lucknow, if he had thought it necessary so to do.
I have been favoured with a communication, confirma-
tory of this assertion, by a gentleman high in the Com-
pany's civil service, who was attached to the political
department in the Governor General's office at Calcutta,
in Lord Wellesley's time, who afterwards held a very
responsible situation under the Marquis of Hastings,
and was associated with the Hon. Henry Wellesley,
now Lord Cowley, in a commission to settle the terri-
tory ceded by the Nabob vizier to the British Govern-
ment in 1805-6. He acted on that occasion as inter-
preter to the commissioners for enclosing the northern
district of the province of Oude, and was long resident
at Lucknow for that purpose. A more competent
authority upon the point in question could hardly be
found. This gentleman says:—“ In verbal negotia-
tions, sometimes the Hindustanee, and sometimes the
Persian, is used, at the option of the parties. Nobles
and learned men prefer the latter. The poorer and un-
educated classes use the Hindustanee from necessity.
It is difficult to write or decipher the Hindustanee,
which is in what is called the Nagree character; nor is
BEN ARES AND LUCKNOW. 247
yº
tt ever done, except on very rare occasions. But what-
ever is spoken in Hindustanee in courts of justice, or
the like, is instantly translated and recorded in the Per-
sian language and character. When I was interpreter
for the enclosing commission in the upper provinces,
the commissioners for settling Cuttack met Lord
Hastings at Lucknow, and all their personal intercourse
was carried on in Hindustanee with the chiefs, rajahs,
&c. But, on the other hand, all matters of Record and
written correspondence were conducted in the Persian
language.”
But, as Sir Elijah himself avowed, he did not read
the affidavits, and never considered that he was bound
to read them, this dispute about his philological at-
tainments is of little consequence, except as showing the
unvarying spirit of ignorance and unfairness with which
all parts of his conduct have been held up to obloquy.
The Persian is the diplomatic, official, and documental
language of all Hindustan; and, as was proved, and
particularly pointed out by Lord Thurlow, and by the
Bishop of Rochester (Dr. Horsley), on Mr. Hastings's
trial, the greatest part of the affidavits were in Persian
and in English. These affidavits, moreover, bore the
signatures of the most respectable men, both native and
European, in that province; including the names of
several English officers who were in the service of the
Nabob of Oude; and who, like the natives, deposed that
the whole country had been in a state of revolt, and
that the insurgent Cheyte Sing had been supplied with
funds by the Begums.
After the business of the affidavits was finished, the
Chief Justice returned to Calcutta with his wife and
attendants, travelling leisurely, though not quite so
slowly, as he had done from that capital to Lucknow.
He was thanked by the members of the Supreme Council,
and by nearly every Englishman in Calcutta, for the
trouble he had incurred. And so far were the members
of Council from expressing any disapprobation of what
Hastings had done at Lucknow, at Benares, or at
Chunar, that they drew up and presented to him a
warm congratulatory address. Hastings gave a dupli-
cate of this flattering paper to my father, who carefully
preserved it among his other vouchers. Perhaps more
248 SIR ELIJAH's Journ EY, ETC.
has been said than was requisite to meet an accusation
so essentially frivolous. It appears, indeed, to have been
originally advanced for no other purpose than to mul-
tiply the articles of impeachment moved by Sir Gilbert
Elliot;* and it is worthy of observation, that the hostile
committee of the Commons resorted to the same expe-
dient, in swelling the charge relative to the extension,
as it is called, of the Court's jurisdiction, into three ar-
ticles instead of one, viz. “the Patna,” “the Cossijurah,”
and “the Extension of Jurisdiction charges;” the latter
clearly comprehending within itself the two former
articles.
* Throughout Chap. V. for “Eliot” read “Elliot.”
C H A P T E R X.
FRANCIS ARRIVES IN ENGLAND–OBTAINS A SEAT IN PAR-
LIAMENT— PROCEEDS TO MISREPRESENT SIR ELIJAH
IMPEY—LEGAL OPINION ON SIR ELIJAH'S ACCEPTANCE
OF THE SUDDER DEWANNEE ADAULUT-ADDRESS TO
PROCURE HIS RECALL, ETC.
MR. FRANCIs arrived in England in the summer of 1781.
From that period the hostilities against the Governor
General, and against the Chief Justice, who has ever
been most unfairly and absurdly coupled with him, were
carried on with far greater heat, and with more intensity
of purpose than ever. Political circumstances soon
occurred which gave an all-commanding power to Mr.
Burke, who had been long the distant acquaintance and
correspondent, but was now the close associate of Philip
Francis. These attacks had been prepared by an insi-
dious communication which Francis had carried on,
during his residence in India, with various political
allies, and principally with Edmund Burke, through
the medium of his relative, William Burke, who had re-
sided in India most part of the time employed in these
transactions.
I have cursorily stated in a preceding page, that these
gentlemen had been acquainted with each other before
Mr. Francis left England for the east: the fact is cor-
roborated by some recently published correspondence of
the great parliamentary orator. On Wednesday, the
29th of October, 1773, Burke, writing from Beacons-
field to the Marquess of Rockingham, says,
“Francis will be here, by appointment, to-day. I shall
wait no longer than his return, which will be to-morrow,
Thursday morning, when I hope to receive your Lordship's
250 PROCEEDINGS OF FRANCIS
commands at Grosvenor Square. I find that this Mr. Francis
is entirely in the interests of Lord Clive.” +
The man, thus thought to have been so entirely in
the interests of the great Clive, whose services were re-
warded in England by defamation, and threats of im-
peachment, had now returned home, nearly eight years
after this visit at Beaconsfield, with the fixed determina-
tion to bring about the impeachment of the equally
great, and no less injured Warren Hastings To this
end, he united himself most intimately with Burke,
whose passions had already been inflamed against
the Governor General, and whose grand object at
this time was, to annihilate the political existence of
the East India Company, and to transfer its immense
patronage to that home Government, in which, through
the Rockingham party, Mr. Francis had every prospect
of soon obtaining an eminent place. By that interest
he shortly after obtained a seat in Parliament; where,
first as member and prompter of the Committee which
drew up the report, and afterwards as witness in Sir
Gilbert Elliot's accusation, he gave evidence against my
father in his place in the House of Commons.
Francis, though professing an exclusive adherence to
Burke and Fox, courted both sides of the incongruous
coalition ministry. He endeavoured to ingratiate him-
self with Lord North, by means of his lordship's secre-
tary, Mr. Brummell;f he beset Lord North’s house,
and would have crawled up its back stairs; but he
found no opening there. The following private letter was
written by Mr. Barwell shortly after his return to
England, and addressed to Mr. Hastings in Calcutta.
“Ormond Street, Feb. 1, 1782.
“It is with pleasure I inform you that Francis daily loses
round. The petulance and captiousness of his character have
totally sunk him in the opinion of the Directors, and his
manners have caused that disgust which breaks forth into
reproach whenever his name is mentioned. Your friend, Mr.
Sullivan, has, with infinite ability, defeated him in his at-
tempt on the direction, and his impatience under it has com-
* Correspondence of the Right Honourable Edmund Burke, between
the year 1744, and the period of his decease, in 1797. Edited by Charles
William, Earl Fitzwilliam, and Lieut. General Sir Richard Bourke, K.C.B.
In four volumes. London: 1844. Vol. I. p. 446.
† Father of the late Beau Brummell.
AFTER HIS ARRIVAL. 251
pleted the business. Just after Francis's arrival, he gave out
how well he had been received, and how much distinguished
by Lord North. Within six weeks of the promulgation of
this puff, I had the satisfaction of detecting him; for upon
questioning Mr. Brummell, his lordship’s secretary, he laughed,
and observed, Mr. Francis had been at Bushy once, and from
that period to this had never repeated his visit to Lord North.
Lord Mansfield positively declined his first visit, and I do not
find that any one of the King's Ministers hold any intercourse
with him. Thus circumstanced, he no longer exults, but,
chagrined and mortified, complains in bitterness of spirit, and
prophecies the loss of India under any government but his
own. For God's sake keep on good terms with Impey. I
fear much his appointment will be abolished, and that the
abolition may be followed by some very disagreeable and harsh
measure. I cannot, however, adopt the opinion that they
will be able to effect his removal. I have written to him
pretty much at large upon this point, and refer you to him.
Intelligence from your government of the good that has re-
sulted from placing Impey at the head of the dewannee courts
has been of more service to you in the public opinion than
anything your friends can urge in vindication, without such
avowedly good and solid grounds. It is fit that you should
both know your friends as well as those who by proper expla-
nations my be conciliated to your interests. My old acquaint-
ance, the Archbishop of York (Markham), called upon me two
days ago with a letter from his son : regarded as a compo-
sition, it was elegant ; as the effusion of a heart overflowing
with gratitude and honest indignation, matchless. The old
man was in rapture, and dwelt upon it with that sedate dig-
mity which marks his character and commands respect.
Barber is a warm friend, Pechell and Calliaud merit a diamond
statue from you both. Boughton Rous is shuffling, and
worth nought. Macpherson Fingall ought to be cultivated.
Harrison and old Savage, Directors, may be all you wish by
a polite letter. Secretary Robinson is open to conviction.
Thurlow, Dumming, Dempster, I need hardly mention as fast
friends, and powerful supporters of Sir Elijah Impey. I have
thus grouped a number of men who are, have been, or may
be useful to you and to our mutual friend.
“I remain,
“Most affectionately and sincerely,
“RICHARD BARWELL.”*
* I gladly take this opportunity of acknowledging my obligation to the
executors and representatives of Mrs. Hastings, in allowing me to copy
this letter from the original, which is preserved among the papers in their
252 PROCEEDINGS OF FRANCIS
To the great orator and statesman, with whom he
became thus closely connected, I impute no unworthy
motive; but I believe Mr. Burke to have been inspired
with a more than ordinary love of power and influence;
to have been resolutely bent on the subversion of the
Company's Charter, and to have conscientiously believed
that the native population of India would be better
governed by his Majesty's Ministers than by an asso-
ciation of merchants and shareholders. It was, there-
fore, in conformity with his views, or, as a modification
of his plan, that, in 1783, about two years after the re-
turn of Francis, that Mr. Fox's India Bill was brought
before Parliament. That unfortunate bill, indeed,
although it bore the name of Fox, was well known to
have been almost entirely the production of Edmund
Burke, not unassisted, as, I believe, by Philip Francis.
In addition to the personal hatred which he bore to
Hastings and my father, the prompter and promoter of
all these movements was impelled, by the ambitious
hope, if not of immediately succeeding Mr. Hastings in
his post, of becoming, sooner or later, Governor General
of India. From the Company he had little to expect;
but, should his political friends secure themselves in the
Cabinet, he speculated, perhaps not altogether unfea-
sibly, on a chance of that promotion. This was no tran-
sient scheme, or short-lived expectation. May it not
even have entered into the heart of Francis, when he
fought the duel in 1780? Will it not be remembered
that Francis was the challenger on that occasion ?
That he was then senior Member of Council 7 and that,
had Mr. Hastings fallen, the survivor, Mr. Francis,
for a season, at least, would have occupied the post to
which he so ardently aspired ? That catastrophe, most
happily, never took place, and Fox's India Bill was
overthrown; and not only overthrown, politically
speaking, no less fortunately,–but so universally repro-
bated, that it ruined and broke up the coalition.
Yet Francis was far from abandoning his lofty
pretensions. The hope of becoming Governor Ge-
possession at Daylesford House. It has never been published before, but
was returned to the family by Mr. Gleig, who has omitted it in his Me-
moir, probably because he considered it unnecessary to his subject. To
mine it is essential.
TO MIS REPRESENT SIR ELIJAH. 253
neral deluded him almost to the last of his political
career.”
I have already noticed the activity with which the
English press, at this epoch, laboured under the
auspices of a domineering party. Immediately after
the return of Francis from India, there was a fresh
issue of pamphlets, levelled at almost every proceeding
which had taken place in India during the political and
legal administration of Mr. Hastings and my father.
I have already mentioned the anonymous pamphlet in
the library of the British Museum, entitled, “Extract
of an original Letter from Calcutta, relative to the
Administration of Justice by Sir Elijah Impey. London:
Printed for Debret, 1781.” The introduction states that
the letter was not intended for publication; but that it
would be injurious to suppress it at a time “when the
administration of justice in Bengal is coming under the
review of Parliament.” The letter itself is dated De-
cember 1st, 1780, and professes to be written by “a
perfectly impartial writer.” At page 12 of this pamphlet
I find these words:—
“The legal murder of Nuncomar, as it is pointedly called
by the great and good Lord Mansfield, showed every person
in Bengal what he was to expect.”
The whole pamphlet, like many others which fol-
lowed it, is a laboured calumny upon the character and
judicial conduct of Sir Elijah Impey; and written,
though with great plausibility, without any attention
to truth, or even decency. It was precisely such a
letter as Junius might have written for the Public
Advertiser. At the conclusion is the following post-
script:—
“In looking over what I have written, I find I have been
more severe on the judges than I intended. Whatever may
be thought by passionate men, or said by others, it is not
true that there is no mixture of good in the character of
these gentlemen. The Chief Justice is, undoubtedly, a man
of ability. He is punctual in his attendance in the court, and
despatches the common business with great readiness. Mr.
* See “Lord Brougham's Sketches of Statesmen of the time of
George III.”
254 PROCEEDINGS OF FRANCIS
Hyde is slow and formal, but it is thought he does not mean
to do wrong; and he is suspected of no other bias on his
judgment than what maturally arises from real prejudices, and
very real obstimacy. Sir Robert Chambers is thought to have
more learning, and better intentions, though less vigour than
the Chief Justice.”
All this ostentatious display of candour, coupled with
the author's concealment of his name, the description
of himself and his correspondent, the classical malignity
of the motto, the coincidence of the date with Mr.
Francis's departure from India, conspire to fix the
authorship upon him.
The probability is as great that the “person of station,”
to whom the letter is addressed, was no other that Mr.
Burke; as it seems to have furnished the great orator,
among many other unwarrantable expressions, with that
to which he gave utterance on Mr. Hasting's trial, on the
27th of April, 1788, and for which he incurred the censure
of the House of Commons, six days after, on a motion
made by the Marquis of Graham, and carried by a ma-
jority of more than two to one, the numbers being 135
to 66. The same words had been traced by my father
in his defence, two months before, to this book and an-
other I shall presently quote, and for those words the
publisher, Debret, was prosecuted by the Attorney Ge-
neral in the same year.
This virulent pamphlet was soon followed by others
in the same spirit. In the course of 1782, the year
after Francis's return, there appeared a work in two
octavo volumes, entitled, “Travels in Europe, Asia, and
Africa: describing Characters, Customs, Manners, Laws,
and Productions of Nature and Art: containing various
remarks on the Political Interests of Great Britain, and
delineating in particular a New System for the Govern-
ment and Improvement of the British Settlements in
the East Indies: begun in the year 1777 and finished
in 1781.” Like the letter attributed to Sheriff Macrabie,
Francis's brother-in-law—of which much has already
been said, and more will be said hereafter—this book
of Travels, in the form of letters, bears internal evidence
of having been, if not written, at least revised and aug-
mented by Francis himself, though it passed under
the name of Macintosh.
TO MTS REPRESENT SIR. ELIJAII. 255
“The name of Macintosh,” says the author of “Our Indian
Empire,” “ is clearly a nom de guerre. If such an indivi-
dual had existed, and if he had been capable of writing so
well, without assistance, he would have been heard of again;
and he could scarcely have failed, in that day, when good
writers were far from numerous, of attaining to celebrity.
No such Macintosh was ever heard of after the publication
of the book... The writer of that book shuns all the subjects
in which Philip Francis was awkwardly implicated during his
residence at Calcutta; for example, he says not a syllable
about Monsieur and Madame Le Grand, and the crim. con.
trial, at which Sir Elijah Impey presided—and he dwells
most emphatically upon all those subjects and projects which
Francis held to be honourable to himself, as member of the
Council, and opponent of Hastings; he applauds all those
individuals who took part with Francis, and he condemns,
with all the virulence of Junius, those who took part with
Hastings. His attack on the Chief Justice is more guarded;
and it is worthy of remark, that, though he gives the name
in full length of Sir Robert Chambers, and the initials of the
two other judges, and of many other functionaries, he gives
neither the name, nor so much as the initials, of Sir Elijah
Impey. The whole story of the trial and execution of Num-
comar is related very briefly. This looks like the performance
of a man who was laying a foundation for future calumnies.
Instead of the elaborate account of the execution contained
in Macrabie's letter, we have here but one short sentence:—
“He [Nuncomar] was found guilty, condemned to be hanged,
and was publicly executed, within a few paces of Fort William,
to the utter astonishment and terror of all Hindostan!' Short
as the account is, it contains, nevertheless, the germ of nearly
every slander and misstatement that was afterwards introduced
into Sir Gilbert Elliot's speech, and the charges against Sir
Elijah Impey. Yet this account makes two of the judges as
guilty as the Chief Justice, and exonerates only Sir Robert
Chambers in the affair of Nuncomar. It says, “All the
bench, except Sir Robert Chambers, declared that he was
amenable to that law.”
“But Sir Robert Chambers, as we have said—and, as it is
proved, by abundant evidence—never doubted that the Rajah
was amenable to the law of England; never did anything
more than offer a suggestion that he should be tried under
the statute of Queen Elizabeth, which was milder, indeed,
but which was clearly repealed and obsolete. Chambers con-
curred in the sentence which Impey pronounced, merely as
the organ of the Court. If, therefore, there was guilt or
256 LEGAL OPINION ON SLR ELIJAH's
error, it was incurred by all the bench, and by Chambers,
just as much as by Impey.”
There was, indeed, no exception to be made in favour
of Sir Robert Chambers with respect to the trial and
condemnation of the Rajah, although, as the reader will
remember, Chambers would have dealt more leniently
with the purse of Francis on his trial for criminal con-
versation ; and it has always appeared to me, that it
was for this consideration, and, perhaps, also to avoid
the charge of an indiscriminate severity, that Francis
always spoke of Sir Robert Chambers with palpable
partiality. It seems that “Macintosh's Travels,” as the
work was called, obtained a wide circulation ; and, for a
time, considerably biassed the public mind. This im-
pression being once created, no efforts were spared by
Francis and his party to confirm and deepen it.
Hastings had many enemies at the East India House;
and my father but few personal and influential friends
in Parliament. With Leadenhall Street he had no con-
nection whatever.
Between the appearance of Francis's pamphlet, in
1781, and of the so-called “Macintosh’s Travels,” dated
the following year, the question of Sir Elijah Impey’s
acceptance of the Sudder Dewannee Adaulut,” which
he and the Governor General had frankly and openly
announced, was brought under discussion by the Court
of Directors. They had, at first, expressed their un-
qualified approbation of the measure; that is to say, so
long as they understood the appointment to have been
accepted—as it had been—without the salary. But at
the close of 1781, six months after the return of Francis
from the East, taking umbrage at his report of the ac-
ceptance of a salary, the Directors resorted to legal
advice. The counsel they consulted were Dunning,
Wallace, and James, afterwards Sir James Mansfield,
to whom they applied, through Mr. Smith, the chair-
man of their select committee, in the following form :—
“The Court of Directors request that you will consider
* I write these words as they are usually spelt in Parliamentary re-
ports ; but the right orthography, according to Sir William Jones, is
Sedr Diwanei Adálet, which means the Supreme Court of Civil Judica-
ture annexed to the office of Divan. See “Correspondence of the Right
Honourable Edmund Burke.” Vol. II., p. 458.
FRESIDENCY OF THE ADA UILUTS. 257
the Act of Parliament of the 13th of George III., cap. 64,
and the several minutes and arguments of the Governor Ge-
neral and Council upon the occasion of appointing the Chief
Justice to be Judge of the Court of Sudder Dewanny
Adawlut, and, upon the whole, to advise them.
“Question. Whether the appointment of the Chief Jus-
tice to be Judge of the Sudder Dewanny Adawlut, and giving
him a salary to that office, besides the salary he is entitled to
as Chief Justice, was illegal, either as being contrary to the
said Act of 13 George III., cap. 64, or incompatible with his
duty as Chief Justice of the Supreme Court 7 and whether
he may be continued Judge of the Sudder Dewanny Adawlut,
consistent with the Act of 21 George III., cap. 70, sec. 21 7”
To this the three eminent lawyers replied:
“Answer. The appointment of the Chief Justice to the
office of Judge of the Sudder Dewanny Adawlut, and giving
him a salary, besides what he is entitled to as Chief Justice,
does not appear to us to be illegal, either as being contrary
to the 13th George III., or incompatible with his duty as
Chief Justice. Nor do we see anything in the Act 21 George
III. which affects this question.
“(Signed) “J. DUNNING.
“JAS. WALLACE.
“JAs. MANSFIELD.
“Lincoln’s-imm, 19th Dec., 1781.”*
Mr. Mansfield, three days after he had subscribed to
this opinion, retracts it in the following note, addressed
to the Chairman of the Select Committee:–
“The Solicitor General presents his compliments to Mr.
Smith, and having considered farther the question relating to
the late appointment of Sir Elijah Impey since he subscribed
the opinion upon it, he encloses to Mr. Smith his present
ideas upon the subject, which he wishes to be laid before
those to whom his former opinion is communicated.
“Since I gave my opinion on the question relating to the
appointment of Sir Elijah Impey to the office of the Judge
of the Sudder Dewanny Adawlut, great doubts have occurred
to me on the question; and, although there is no particular
provision in the statute of the 13th George III., cap. 63,
which seems to have been intended to prohibit any of the
judges of the Supreme Court from accepting such an office,
yet it is by no means clear to me, that the acceptance of such
* Extract from the first Report of the Select Committee on the Ad-
ministration of Justice in India.
S
258 LEGAL OPINION ON S1 R ELIJAH's
an office, with a salary, or other profit annexed to it, is not
forbidden and rendered illegal by that law. The great object
of that law was to erect a court which might more effectually
control the British subjects within its jurisdiction than any
former judicature had done. The judges who composed it
were to be named by the King, and their salaries are fixed by
the statute. They do not, in any respect, depend on the India
Company, except that the Company are to pay the salaries.
To give effect to the Court of Judicature, it seems to be ne-
cessary that the judges should be, as far as possible, indepen-
dent of the servants of the Company. I therefore doubt,
whether the acceptance of such an office, with a salary,
especially to be held at the pleasure of the Governor and
Council, be not contrary to the spirit and principle intention
of the statute. If it be so, it may, perhaps, not be thought
a great stretch of construction to consider the acceptance
of the office, with the salary, as forbidden by that part of the
23rd section which prohibits the judges to accept any reward,
&c. But my doubts would have been the same from the ge-
neral principle and object of the statute, if the words of that
section could not be supposed to extend to this case. I have
not been able to get the better of these doubts, although I
have been very desirous of doing it, from the great respect I
have for the opinions of those gentlemen with whom I lately
concurred, and whose judgment ought to have had much more
weight and authority than mine.
“ J. MANSFIELD.
“Temple, Dec. 22, 1781.”
Mr. Rous, the Company’s standing counsel, also
objected to the appointment, with the salary, on the
plea, however, not of law, but of mere expediency.
Like Mr. Mansfield, Mr. Rous had been led to believe
that Sir Elijah had not only accepted the salary, but
had received it together with other emoluments.
Francis, who best knew the contrary, inculcated this
belief, not only among lawyers and directors, but also
in Parliament, and in general society. Yet the Court
of Directors had broadly asserted, in a “memorandum,”
registered and preserved among their numerous “Bengal
Consultations,” in Leadenhall Street, that—
“It could hardly have been expected that the Chief Justice
should give up his few hours of relaxation, and enter on a
fresh scene of labour and perplexity without compensation.
* Idem.
PRESIDENCY OF THE ADAULUTS. 259
The offer of a salary was at once a necessary and a judicious
sacrifice; but the property of the Company has by no means
been wantonly lavished. 468,000 bore no proportion to the
sums which must eventually be saved. Perhaps they were
ten times the amount; and of this salary we are yet to learn
that a single shilling has ever been received, though the ap-
pointment was passed in Council in October, 1780.
Whatever plan might be adopted for the better arrangement
of the judicial office in Bengal, it may be affirmed, that con-
siderable advantage will still be derived from the professional
assistance afforded by the Chief Justice to the Sudder
Dewannee Adaulut. His regulations and instructions (for he
has already proposed many) will probably continue the
standard of practice; his decisions will be firm precedents
Jor future judges, and his easample stamp respectability on the
office. No weak, indolent, or undignified character, will
readily find admission into the vacant seat of Sir Elijah
Impey.”*
It appears likely, notwithstanding the efforts made
by the enemies of the Governor General and the Chief
Justice, that the Court of Directors would have conti-
nued to act in conformity with the opinions here ex-
pressed, if Lord North’s administration had continued
to exist, or if Mr. Burke and his friends had not come
into office. But the miserable termination of the Ame-
rican war, by Lord Cornwallis's surrender, at York
Town, caused the overthrow of that administration, on
the 19th of March, 1782. Then followed the last short
ministry of the Marquess of Rockingham; which, at the
desire of his Majesty, George III., was arranged by the
Earl of Shelburne. In this disunited cabinet Mr. Burke
not only obtained a seat, but through his unbounded
influence over the mind of the Marquess, became, in a
manner, the master of his noble patron, and the sub-
Prime Minister of England.
To him especially was committed, as if by the tacit
consent of both sections of the new administration, the
whole control and management of Indian affairs; and,
to this preponderance of the Rockingham over the
Shelburne party, at that juncture, I attribute the
* Extract from MSS. in the Clerk’s Office, in the India House,
entituled “Miscellaneous,” p. 533, B. 447. “Memorandum on the Judi-
cial Establishment of India, vindicatory of Mr. Hastings and Sir Elijah
Impey.”
s 2
260 THITE KING AIDDRESS EID
recall of my father from Calcutta. In this business
the Court of Directors, of course, had not been con-
sulted ; and, therefore, had not much to do, beyond
giving some colour to its equity, by yielding to the
false impressions made upon their minds, in opposition
to their former resolution, relative to the Sudder
T)ewannee Adaulut. But this was not the first time
that the Directors of the Honourable East India
Company had exhibited a want of steadiness in their
opinion of men and measures. A few weeks before
the resignation of Lord North, they negatived a motion
for removing Sir Elijah Impey from the office of Judge
of their Adaulut. A few weeks after the formation of
the Rockingham and Shelburne Administration, they
did the very opposite to this, voting, on the 30th of
April, that the Governor General should be written to,
and the Chief Justice removed from the said office on
the receipt of their letter.”
This decision only went to deprive my father of the
laborious and unpaid presidency of their court of ap-
peal, which was a relief, rather than a deprivation.
But Mr. Burke, who had, by this time, deeply imbibed
all the prejudices of his informer, was not disposed to
rest satisfied with this simple measure. Francis had
openly declared, as well in India, as in England, that
he would bring about my father's recall; and, to this
object, he and his party applied themselves with the
greatest ardour and activity.
On the 3rd of May, 1782, three days after the vote
of the Court of Directors, an address to the King was
carried in the House of Commons, for the immediate
recall of Sir Elijah Impey, to answer the charge “ of
having accepted an office not agreeable to the true in-
tent and meaning of the Act 13 George III.” On the
24th of June following, notice of motion was given
in the House of Commons, for a censure upon Mr.
Chambers, for having accepted the office of Company's
Chief Justice at Chinsurah. But General Smith, who
had given notice of this motion, thought proper to
postpone it until the next session. The next session
* See “Bengal Consultations” in the India House, and the “First
Report of Select Committee” in Parliamentary Reports.
TO RECALL SIR ELIJA H. 261
came, and was allowed to elapse without any such
motion being made; and thus Mr. Justice Chambers
was not even so much as censured, though the Chief
Justice was recalled. This cannot but appear strange,
until accounted for ; and the solution of the mystery
is this: General Richard Smith had, in the interim,
become not only the political friend and ally of Francis,
but chairman of the committees of the House of Com-
mons, which drew up the charges of accusation against
Sir Elijah Impey.
A large salary, variously stated from £3,000 to
£5,000 per annum, was attached to the office which
Chambers accepted from the Company; and afterwards,
upon resigning this Chinsurah judgeship, he accepted
the superintendence of the police, with another salary,
which he enjoyed so long as he remained in India.
Mr. Justice Hyde, another of my father's assessors,
was allowed to unite to his office of puisne judge in
the Supreme Court that of another judgeship, and to
receive another salary from the Company. Yet, as far
as I have been able to discover, after the faint attempt
to obtain the vote of censure upon Justice Chambers
in the House of Commons, neither their conduct nor
their motives were ever publicly called in question; and
far—very far—be it from me to question them They
were both able and upright men, fully borne out by the
Act, to accept from the India Company an adequate
remuneration for the additional offices of “real business”
which they had undertaken, and had every right to
undertake.
Two months and five days elapsed ere the Secretary
of State wrote—reluctantly, as I may presume—his
letter of recall to my father. But great political changes
had occurred during that interval. At the time when
his lordship's letter was indited, the Earl of Shelburne
had virtually become Prime Minister; for the Marquess
of Rockingham, the late nominal head of the Govern-
ment, died just one week before the date of the letter
of recall, viz., on the 1st of July, 1782. Lord Shelburne,
notwithstanding the opposition of the Rockinghamites,
with Mr. Burke at their head, almost immediately suc-
ceeded him ; but, in the meantime, being thwarted and
embarrassed in all his measures, by that fierce faction,
262 RECALL OF SIR. I.LIJA H.
he could no longer command a majority in the House
of Commons, especially upon Indian affairs. His lord-
ship, therefore, about seven days before he was declared
First Lord of the Treasury, in his official capacity as
Secretary of State, set his hand to the letter which
recalled my father from Bengal. Many months, how-
ever, before Sir Elijah Impey could reach England, the
violent party which procured the address against him,
had first displaced the Earl of Shelburne, and after-
wards caused the coalition of Lord North and Mr. Fox.
Full half a year before my father's arrival, this most
unpopular coalition had been defeated in its turn, and
was succeeded by the first administration of Mr. Pitt.
The immediate cause of the dissolution and disgrace of
the coalition ministry was, as I have stated, that India
Bill, which bore the name of Fox, but which, there is
now good reason to believe, was almost entirely the
composition of Edmund Burke. Thus, before they began
the patriotic work of ruining others, these great orators
—for who will deny them that praise ?—these mighty
champions had been themselves signally vanquished on
the hot and perilous field of Indian politics. Is it,
then, too much to surmise, that the recollection of that
defeat and humiliation may, possibly, have tended to
exasperate them against the Governor General and
Chief Justice 2 Yet, surely, such a lesson might have
taught them somewhat more forbearance.
After the formation of Mr. Pitt's first ministry,
much as they disagreed in other matters, the remnant
of this Rockingham party continued united upon the
great question of India. Closely leagued and banded
together against the great Governor General, they little
regarded the wisdom, determination, and unflinching
courage—they valued not the amazing fertility of re-
sources, without which no British empire in the East
would have been left to debate upon. Still less, per-
haps, did they give credit to that judicial knowledge,
steadiness, and impartiality, divested of which, the
most flourishing state sinks into a lawless anarchy.
Thus combined, they succeeded in effecting the impeach-
ment, and almost total ruin, of Mr. Hastings; but
they utterly failed, as will presently be seen, in carry-
ing the impeachment of Sir Elijah Impey. They per-
CHARACTER OF HIS ACCU SERS. 263
secuted both, but could convict neither. Hastings
was acquitted; my father was never impeached. Yet,
never was so much Parliamentary talent, so much
eloquence, so much perseverance, united in one effort,
and directed against two more innocent and compara-
tively helpless men.
And yet, of the more elevated and high-minded
actors in this conspiracy, I must not be understood to
complain with equal bitterness. One of them, indeed,
it may be thought presumption in me to criticise at all;
but I do no more than echo the opinion now almost
universal, when, allowing for his liability to prejudice, I
would fain acknowledge Mr. Burke to have been a con-
scientious as well as an able statesman, a writer, and a
declamer, no less impressed with the truth of what he
uttered, than he impressed others by means of the live-
liness of his fancy, and the depth of his erudition.
Many of his colleagues may have been alike sincere.
Most of them were men of rare talent and acquirement.
But of Mr. Francis, whatever may have been his abili-
ties, I cannot speak in milder terms than, that he was
treacherous, uncandid, cruel, and unchristian. Ever
concentrating within himself the venom of his own
Junius, he crept, like the poisoner in the tragedy, to
whomsoever of them he found slumbering—
“And in the porches of his ear he pour’d
The leperous distilment;”
and there it rankled, working the eager temperament
of Burke into a phrenzy—festering at the heart of Fox
—or flowing with noisome eloquence from the lips of
Sheridan. Francis, I venture to add, was the arch-
fiend who became “ a lying spirit” in the mouths of
them all.
O H A P T E R XI.
SIR ELIJAH RESIGNS THE PRESIDENCY OF THE SUDIDER
DEWANNEE ADAULUT RECEIVES THE LETTER OF RECALL
—.PREPARES WITH HIS FAMILY TO RETURN TO ENGLAND
—TESTIMONIALS OF REGARD FOR HIS PUBLIC AND PRI-
WATE CHARACTER AT CALCUTTA.
BEFORE the letter from the Court of Directors to the
Governor General, ordering him to remove Sir Elijah
Impey from the Sudder Dewannee Adaulut, reached
Calcutta, news had arrived there that Mr. Francis,
having obtained entire possession of the ear of Edmund
Burke, was making a great stir in Parliament relative
to my father's appointment to that office.
On the 8th of August, the said letter from the Di-
rectors not having yet arrived, Sir Elijah addressed the
Governor General and Council, informing them, that
he had learned, from report, that that gentleman had
accused him, before a committee of the House of Com-
mons, of an offence against the Regulating Act, by
having accepted, as a compromise with the Governor
General, the office of Judge of the Sudder Dewannee
Adaulut, with a large salary. In this letter to the Go-
vernor and Council, my father said—
“The acceptance of the salary, and not the office, I sup-
pose to be charged as the crime. The Governor General and
Council are individually subjected to the same restrictions
with regard to emoluments, in the same clause of the Act,
and by the same words as the judges, yet two of the council-
jors (General Clavering and Colonel Monson), within a year
SIR ELIJAH's RESIGNATION. 265
after the Act passed, and before they proceeded to Bengal,
were appointed openly, by the East India Company, Com-
manders of the Forces in India, with considerable salaries.
I could not imagine, after an office with a salary had been
thus accepted by gentlemen, under the same restrictions as I
am, with the knowledge of the King’s Ministers, of the Par-
liament, and of the whole nation, that the acceptance of an
office, with great trust and real business, could be deemed
illegal in me; for I cannot conceive, if the statute prohibits a
councillor from accepting an office with emoluments, that the
appointment having been made publicly and notoriously,
could alter the essence of the fact itself, and except it out of
the law, though, as this passed not only without censure, but
with the full acquiescence of his Majesty’s Ministers, it was
surely reasonable to infer that it was never esteemed to be
within the Act. But, though I never entertained an idea of
its being an offence against the Act, I had scruples, from
other motives, against applying the salary to my own use,
until the whole circumstances of the business should be per-
fectly known in England by those whose esteem for my cha-
racter and conduct I was anxious to preserve, and by whose
judgment I was resolved to be guided as to the propriety of
retaining the emoluments of the office. With this resolve I
apprised you by a letter dated the 4th of July, 1781.
On the same principle, I had, long before that letter to you,
and immediately after my acceptance unconditionally, in Oc-
tober, 1780, and long before any salary had been proposed to
be annealed to it, informed the Lord High Chancellor of the
appointment. Some time in January, 1781, it was communi-
cated to me, by your secretary, that you had been pleased to
annex a salary to the office. Of my resolution not to apply
the salary to my own use, if it should be thought improper,
I informed the Lord High Chancellor, and his Majesty's At-
torney General, by letters, dated in April, 1781; and having,
for that purpose, procured copies from your offices, of all
your proceedings relative, as well to the provincial as to the
Sudder Dewannee Adaulut, I forwarded them in the same
letters to England. . . . . I wrote on the same sub-
ject to many of my friends. To his Majesty's Secretaries of
State I did not write, because, as the whole of your proceed-
ings must be transmitted to one of them, those among the
rest must have come officially before them, and could not
escape their notice, if they had given occasion for censure or
doubt respecting the propriety of it. Now, as your proceed-
ings in the course of this business would necessarily be sub-
jected, not only to the East India Company, but to his Ma-
jesty's Ministers; and, as I had disclosed the whole to the
266 SIR ELIJAH's RESIGNATION OF THE
Lord Chancellor and his Majesty's Attorney-General, and, as
the duties of the office were publicly performed, I must have
known that this transaction could not possibly be kept a
secret; from hence I trust a fair deduction may be made, that
at least I did nothing that was criminal or clandestine. Sir
Robert Chambers having accepted from your honourable
board the office of Chief Justice of Chinsurah, with a salary
annewed thereto, will sufficiently evince that his opinion did
not differ from mine with regard to the legality of the act.
How far public utility weighed with me when I took charge
of the office may be difficult of positive proof, as the chief
evidence of it must rest in my own breast. I will not, there-
fore, offer my own averments and assurances on the subject,
as I cannot expect them to meet with the general credit which
I am conscious they deserve. I shall, for similar reasons,
decline to say anything myself of the utility of the office,
choosing rather to leave it to the attestation of others, and to
the known effects of the appointment. For, whether my
having regulated the office, and discharged its duties, have or
have not been attended with labour to myself, and good to the
country, your honourable board have now full experience to
determine, and to your candour I refer it for an impartial
representation at home.
“If by compromise with the Governor General be meant any
agreement, expressed or implied, of any kind whatsoever, that
I should at all relax in any matter which had been, or was
likely to be, contested between the Governor General and
Council and the Supreme Court—which is the only sense I
can put upon the word—I do most positively and solemnly
deny the charge, and beg leave to refer to the recollection of
the Governor General, whether I did not, in the course of
conversations, when he talked of the expedience of the office
being placed in my hands, explain to him that it was not to
be expected that my holding the office should, in the least, vary
my conduct with regard to the differences of opinion enter-
tained by the Governor General and Council and the Court ;
and whether he did not declare that no such thing was ex-
pected, and eagressed some dissatisfaction, that I had thought
*t necessary to use a caution of that nature. And to the
judges I appeal, whether, in every case wherein such differ-
ences of opinion were involved, I have not, since the appoint-
ment, persisted in the same uniform language and conduct
which I held before the appointment. I had, indeed, both
before and after, as soon as the subjects of the differences had
been referred to England, as far as I could, consistently with
what I thought the duties of my office of Chief Justice, to
the utmost of my power, endeavoured to prevent all questions
1PIRESIDENCY OF THE AD ALJ LUTS. 267
which might either revive the old, or furnish new matter of
contention between the Governor General and Council and
the Court, from coming to a public decision, that everything
might remain in quiet, and with as little ferment as possible,
till a remedy from home should be applied to the evil. But
as this was the rule of my conduct, as well before as since
the appointment, I can hardly think this is intended to be
referred to by the pretended compromise.”*
To this manly letter the Supreme Council returned a
spirited answer. Hastings, as Governor General, and,
as the only remaining member of the Board who
created the office in the Sudder Dewannee Adaulut,
averring, that if anything had been done therein con-
trary to the spirit and intention of the Regulating Act,
he (Hastings) had unintentionally and unwillingly
erred. The other members of the Board acquiesced in
the prayer that Sir Elijah Impey would continue to
discharge the duties of the office, being “fully satisfied,
that whatever objections or doubts may have accrued
relative to the legality or propriety of the appointment,
are all superseded by its public utility.” The letter in-
serted in the minutes of Council proceeds thus:—
“Speaking in the name of all, we have only to say, that
we never wish to avoid censure where a measure of unpro-
vided necessity secures the public tranquillity and advantage,
and where no hidden purposes could possibly have been in-
tended. The great object for the Company and the State was
to preserve the judicial peace of these provinces, with as little
deviation as possible from the constitutional law of the pa-
rent state, or from the local and original laws of this country.
In your appointment to the Sudder Dewannee Adaulut this
object has been attained beyond expectation, and the native
subject has been supported in his rights and privileges amidst
the jarring conflicts of opposite systems of jurisdiction; the
inferior ministers of these opposite systems have been re-
strained, contrary to the opinion of some of the members of
this government, from committing oppressions which they
knew would find an ultimate appeal to one and the same
judge. . . . . We have pointedly referred the Court of
Directors to the code of regulations which you have esta-
blished for the administration of the Sudder Dewannee
Adaulut, and to the letters which have passed between us on
this subject. It is on these only that the Court of Directors
* “Bengal Consultations” in India House.
268 SIR ELIJAH's RESIGNATION OF THE
can form their judgment of the alleged compromise, and we
refer them to the Governor General’s express minute on the
subject.”
In this minute Hastings most solemnly declared that
he could never have dared to talk to Sir Elijah Impey
of a compromise ; that, knowing him, as he did, there
was no possibility of his entertaining a base suspicion
of his character; and that his real motive, and all his
motives for recommending that the office and the salary
should be conferred on him, were contained in the
public reasons in which he supported the recommenda-
tion. Hastings drew a startling picture—and one no
less true than startling—of the miserable looseness,
obscurity, and deficiency of the Regulating Act, which
threw doubts on the legality of all the adauluts,
which made men shrink from an undefined responsibi—
lity, and which defined nothing clearly. He bore testi-
mony to the courage and decision with which the Chief
Justice had acted, and to the great public benefit de-
rived from him to the inhabitants of the provinces. That
court of appeal had, under Sir Elijah Impey, become a
blessing to the country, and a credit to the Government.
“I have had the satisfaction,” said Hastings, “ of hearing
many who had laboured to dissuade me from proposing it,
and who had dreaded the worst evils from it, avow their error,
and attest the public benefits derived from it.”
On the 15th of November, 1782, Sir Elijah Impey
wrote another letter to the Governor General and
Council.
“I thank you,” said he, “for the testimony you give me
of my conduct in the office of Judge of the Sudder Dewannee
Adaulut, and, as public utility, at a particular crisis, induced
me to accept it, I am much flattered, that, in your opinion,
the objects of the appointment have been obtained, and now
surrender, with great pleasure, into your hands, an office
which I accepted with diffidence and anxiety, and which
mothing, under the great responsibility with which I foresaw
it would load me, but public motives, could have prevailed on
me to undertake.”
My father proceeded to state, that, during the time
which had intervened between his last letter and their
answer—the answer of the Council had been delayed
PRESIDENCY OF THE AD ALJ LUTS. 269
“by the long illness of the Governor General and
another member of the Board”—he had kept the
Sudder Dewannee Court open by adjournments, but
had decided no cause since the 14th of August. He
then submitted that, as they had determined to exercise
themselves the office transferred to them, whether it
would not be proper for them to revise all the proceed-
ings had in the Sudder Dewannee Adaulut, in order to
reverse them or confirm them at their discretion. He
modestly referred to the vast labours which he had un-
dertaken, and offered to continue his advice and assist-
ance to the Council which was now to regulate those
courts of law. Lastly, my father said,
“Besides the regulations which I had compiled for
the administration of justice in the adauluts, I had nearly
finished a complete set of forms for every process, rule,
order, entry, decree, execution, and full records, to be
used as precedents in those courts. They now remain
in the possession of Mr. Wilkins,” and I purposed to have
them printed in an appendix to the Persian translation of the
regulations. If completed, I apprehend they might tend
much to the ease, accuracy, and uniformity of proceedings,
and to the despatch of business.”f
During the progress of all this laborious work, the
Chief Justice had to attend to the increasing business
of the Supreme Court; that increase of business being
principally owing to the confidence of the natives in
the purity of the judges, and the impartiality of the
Court. The labour, as I have already said, aggravated
by the enervating climate, had altogether been so
severe, as to effect my father's health to such a degree,
that, though he lived above thirty years after, I do not
hesitate to trace the symptoms of his last illness to the
effects of this mental application.
On the 16th of November, 1782, the day after
writing the letter from which I have last quoted, Sir
Elijah formally surrendered the charge of the Sudder
* Mr. Wilkins, afterwards Sir Charles, was at that time interpreter to
the Council. He was celebrated for his knowledge of the Sanscrit lan-
guage; and, on his return from India, became Persian translator to the
Company, and was succeeded in that office by Nathaniel Brassey Halhed,
Esq., the compiler of the Code of Gentoo laws, &c.
t Bengal Consultations.
270 RECAT,L OF SIR ETLIJAH.
Dewannee Adaulut; presenting, at the same time, a
true copy of the accounts, made out by the accountant
and treasurer of that court, during the very short time
that it had been in actual operation under his presi-
dency. That document has been given at full length
in a preceding chapter. No farther comment is requisite;
but I may, perhaps, be allowed, once more, to remind
the reader, that the total receipts amounted to little
more than £2,548, and that, of that sum, every rupee
was paid into the Calcutta treasury.
On the 27th of January, 1783, more than two months
after he had resigned the Sudder Dewannee Adaulut,
Sir Elijah Impey received the letter of recall, which had
been written by Lord Shelburne, on the 8th of July,
1782, pursuant to the vote and address of the House of
Commons on the 3rd of May. The following is his
Lordship's letter:-
“Whitehall, 8th July, 1782.
“Sir—I have the honour to transmit to you an address,
laid before his Majesty, in consequence of a vote of the
House of Commons, on the 3rd of May last, for the purpose
of your recall. I am, in consequence thereof, to signify his
Majesty’s command, that you should take the earliest oppor-
tunity, consistent with the necessary arrangements of your
affairs, to return to this kingdom, for the purpose of answer-
fing to the charge specified in the said address.
“I have the honour to be, &c. &c.,
“(Signed) “SHELBURNE.
“To the Honourable Sir Elijah Impey,
Knight, &c. &c.”
This letter clearly proves that Sir Elijah Impey was
recalled to answer one specific charge, and no more. It
is, therefore, of the highest importance, as affording
documental evidence, to verify the statement which
Sir Elijah made, six years afterwards, at the bar of the
House of Commons, namely—that, though he was at
that time accused of sia, separate articles of impeach-
ment—beginning with the exaggerated Nuncomar
charge—he was recalled to answer only one, and that
one relating to facts which had occurred more than five
years after the trial and execution of that motorious
RECALL OF SIR ELIJAH. 271
criminal, with which it had been attempted, neverthe-
less, by implication, to connect the cause of my father's
recall, although he had been permitted, during those
five years, to preside over the Supreme Court of Judi-
cature in Bengal
A proof, not altogether insignificant, of the manner
in which public business was then transacted, is to be
found in the fact that, though the official letter states
the fact of having transmitted “the address,” &c., no
copy of that address was sent. Two days after the
receipt of the noble secretary’s letter, it was answered
thus:—
“Fort William, Bengal,
“29th January, 1783.
“My Lord,
“On the 27th instant I had the honour of receiving your
Lordship’s letter of the 8th of July last, signifying to me his
Majesty's commands that I should take the earliest opportu-
nity, consistent with the necessary arrangements of my affairs,
to return to England, to answer a charge contained in an ad-
dress of the House of Commons, which had been laid before
his Majesty, in consequence of a vote of that house of the 3rd
of May last, for the purpose of my recall.
“The votes of the 3rd of May were enclosed in the letter;
but the address, though mentioned to have been transmitted,
was not.
“I most humbly request your Lordship to assure his Ma-
jesty that I am deeply affected with gratitude for the great
lenity with which he has been pleased to lay his commands
upon me, and that I will not abuse his gracious indulgence by
any unnecessary delay in the execution of them.
“But, besides the necessary arrangement of my affairs,
the present state of the Bay of Bengal, since M. Suffrein has
been master of it, is such as to render it extremely hazardous;
and the distress I should suffer in leaving behind me my wife,
who expects to be brought to bed in June, will, I hope, plead
my excuse, if my departure from hence be protracted longer
than it is my earnest wish to effect it.
“My anxiety in the meantime, lest I should appear remiss
in paying that prompt obedience to his Majesty's commands,
to which I am equally urged by duty and inclination, is the
only apology I can make for taking the liberty of troubling
your Lordship with this detail of my private and domestic
CO11C6F11S.
“This delay is exceedingly embarrassing to me, as every
272 SIR ELIJ A H AND FAMILY
hour I remain under a censure of the House of Commons
unanswered, cannot but be highly painful to my feelings,
aggravated as they are, under all circumstances, by any longer
residence in this country.
“I have the honour to be,
“Your Lordship's most obedient,
“And very humble servant,
“ E. IMPEY.”
The cause of the delay continued: our national fleets
were engaged elsewhere; and, for many months, the
French remained masters of the Bay of Bengal; so
that no British ship could safely leave the Hooghley
for Europe. In a duplicate of his letter of the 29th of
January, forwarded on the 11th of March following,
Sir Elijah acknowledged having received the duplicate
of Lord Shelburne's letter of recall, and took occasion
to insert these words in the paragraph relative to the
state of the Bay of Bengal since M. Suffrein had taken
his station there, and since the absence of Sir Edward
Hughes, who was employed, with his squadron, on the
coast of Malabar:—
“The Hawke, East Indiaman, which brought your Lord-
ship's letter, was chased into shoal water, near Sangur Island,
at the entrance of the river, by two of the enemy's ships of
war.”
My father was thus compelled to remain, under no
very enviable circumstances, for about nine months
longer, in Calcutta, in order to escape capture by the
enemy. In the meantime Admiral Sir Edward Hughes
returned to his station in the Hooghley river. This
was not till the accomplishment of Mr. Hastings's
successful enterprise, in which our fleet had so bravely
co-operated, and which ended in the final overthrow of
Hyder Ali in the Carnatic.
On the 3rd of December, 1783, Sir Elijah embarked
with his family on board the Worcester, after an
absence of no less than nine years and eight months
from his native country. His departure from Calcutta
was witnessed with regret not only by his brethren on
the bench, and by the Governor General and Council,
but by all classes of the community, native and
European, free merchants as well as the stipendiary
EMBARK FOR ENGLAND. 273
servants of the Company. By his firmness, impartiality,
and courage, as a judge, Calcutta had been tranquilized
when a civil war seemed all but inevitable; the dis-
tractions in the government had been composed,
powerful criminals had been brought to justice, the weak
had been protected against the strong, the tax-payers
against the extortions of the iron-handed collector.
As a private individual he had spent his money freely
in the country; exercising a liberal hospitality, assisting
the suffering poor, and contributing with great gene-
rosity to every fund intended for the improvement of
their condition. My father never resided for any length
of time in any one place without making himself beloved
in the neighbourhood. Among the natives of Calcutta
and its vicinity, where he spent so many of the prime
years of his life, he was exceedingly popular; nor had
the pleasant recollection of him faded away many
years after his departure.
In public addresses, and in other less ceremonious
forms, Sir Elijah brought away with him many testi-
monials of regard and affection, and left behind him
more than one memorial, publicly voted, to preserve the
remembrance of his fame and person among the
wealthier inhabitants of Bengal. When my eldest
surviving brother, now Rear Admiral in Her Majesty's
service, made his first voyage to Calcutta, in the same
ship and with the same captain who brought my father
home, he was treated by people of all ranks with the
marked respect due to the son of a dignified and dis-
tinguished man. And in my own recollection, and
that of my youngest brother, who for twenty years
resided in India, there have lived, and are still living,
many old and valuable servants of the Company, who
began their career in India but a few years before or
after Sir Elijah's retirement, who have been known to
declare, that they never heard his name mentioned at
Calcutta, or up the country, without some expression of
reverence. Or esteem.
Yet Mr. Macaulay, persevering in his mis-statements
to the last, sends my father on his homeward voyage,
with the remark that he was “stripped of that robe
which has never since the revolution been disgraced so
foully as by him.”
T
2.74 FINAL REM A RIKS TO M R. MIACAU LAY.
Thus it is, that the fame and fortune of public men
are too often sacrificed to the prejudice of some pre-
vailing faction,--while their errors are exaggerated,
their merits overlooked, their services vilified and
unrequited. Nor is it enough to have passed alive
through this fiery ordeal of persecution ; but even their
memory must endure a second tyranny ; a tyranny
which despoils the good man of his fairest monument,
and his descendants of their best inheritance—an honest
name ; a tyranny which, raking up the ashes of an
extinguished party, lights up the evil passions of
another generation, and scatters its firebrands into the
“valley of the shadow of death !”
At my time of life, and with the principles which were
inculcated in my youth, by a virtuous and accomplished
father, in conformity with which I have endeavoured to
act, no provocation short of that which I have received,
could have dragged me into the field of controversy, or
impelled me to the utterance of any offensive person-
ality. Sixty-six years and more have I lived, in peace
and charity with mankind ; and if now I have become
a controversialist, it is for the first time; if now I seek
publicity, it is with reluctance, and from no presumption;
if now I have betrayed any heat, the flame has been
kindled by reverence for the best of fathers, and
by indignation at the insolence of his defamer.
And here I bid farewell to Mr. Macaulay, I trust for
ever, leaving him to reflect upon the plain truths, and
irrefragable documents now laid before him, and to
settle with his own heart and conscience whether he
ought not to retract his calumnies as publicly as he has
promulgated them. But the right honourable reviewer
is a classical scholar, and will comprehend how I am
warned by Cicero, not to expect much, or, indeed, any-
thing, from such an adversary, in the way of candid
confession, or ingenuous reparation.
Plerique errare malunt, eamque sententiam, quam adam-
averunt, pugnacissimè defendere, quâm, sine pertinaciá,
quod constantissimè dicatur, eacquirere.
C H A PTE R XII.
SIR ELIJAH'S HOMEWARD VOYAGE-HIS ARRIVAL IN ENG-
LAND–RESIGNATION OF MR. HASTINGS-PREPARATIONS
FOR THEIR IMPEACHMENT—SIR. GILBERT ELLIOT'S ARTI-
CLES OF CHARGE.
THE Worcester, in which Sir Elijah Impey embarked
with his family and suite, had sprung a leak, and very
narrowly escaped shipwreck off St. Helena. Her Cap-
tain—Cook—had died on board during the passage;
and the first mate, a young and inexperienced officer,
had so completely lost his reckoning, as to come close
upon the Island without being aware of it: the leaky
vessel was with some difficulty saved from running upon
a lee shore. We landed however in safety, and were
hospitably entertained by the Governor of the Island.
The Dutton, East Indiaman, making the homeward
voyage, reached St. Helena nearly at the time of our
landing. The Dutton had for some years been the
favourite India passage-ship; her commander, Captain
James West, had the just reputation of being a first-
rate mariner, a well-informed, and thoroughly practical
man of business, and in every way worthy of con-
fidential intimacy. My father, sharing in the general
preference, resolved to re-embark not in the Worcester,
but in the Dutton. This proved to be in all respects
a very fortunate decision. The remainder of the voyage
was pleasant, and unattended by any danger. It was, of
course, my first sea voyage. I was then about four
T 2
276 sIR ELIJAH IMPEY’s
years old, and can distinctly recollect some few “portents
of my travel's history.” The ordinary business aboard;
the occasional bustle; the hailing of a vessel; or cap-
ture of a shark; and, above all, the sensation so likely
to strike a child, on being surrounded by a world of
waters, seem to have rooted themselves in my memory.
But I can also well remember how soon my father con-
tracted a friendship for the captain, and how great a
favourite he was with all the officers, sailors, and pas-
sengers on board. To what a degree a long sea voyage
and close confinement on ship-board are a test of
good temper, has passed into a proverb. This mutual
good feeling, so accidentally begun, terminated in
a friendship for life, between my father and Mr. West.
After the sea service, in which he made a handsome
fortune, that gentleman was happily prevailed on to be-
come the constant inmate of our family. This con-
tinued until the year 1801, when he married. As a
man of business, he rendered many services to my
father, and after my father's death, to his children.
He was one of the executors to his will, in which trust
he was associated with Mr. Hastings, and Charles
Litchfield, Esq., the late eminent barrister and solicitor
to the Treasury. In mentioning facts like these, I may
surely be excused, not only by my desire to bestow this
grateful tribute on the memory of a friend, long since
deceased, but likewise, by my anxiety to enable the
reader more clearly to appreciate my father's real cha-
racter—his lasting friendships—his amiable and strongly
attaching qualities.
The voyage from St. Helena must have been drawing
towards its close, when I witnessed a little domestic
scene on board the Dutton, which is embalmed in my
memory as one of my first and tenderest recollections.
On a calm evening, the ship was under easy sail,
and my father standing on the deck, surrounded by
his wife and three children, with our ayas, or Indian
nurses. There, on the deck of the old Dutton, I
well remember his playfully describing to us the new
scenes to which we were about to be introduced, the
new brothers and sisters, uncle and aunt, and governess,
with whom we were shortly to be made acquainted;
and well do I recall to my mind the transition from
HOMEWARD VOYAGE. 277
playfulness to gravity, which passed over his features,
when, changing his tone, he began thus early to instil
into our minds, the duty we were bound to pay to those
several relations.
We landed in England in the month of June, 1784.”
John Dunning, Lord Ashburton, was in his grave,
with nothing left of him but his fame as a lawyer, and
the great wealth and honours he had acquired in his
professional and parliamentary career; but Sutton,
Thurlow, James Mansfield, Lloyd Kenyon, his early
fellow-traveller, Alexander Popham, and many other
professional friends, were alive to welcome my father
to his native land : and heartily did they welcome
him. Three years of incessant calumny had not
cooled these friendships, or taught the earliest associates
of Sir Elijah Impey, to look upon him otherwise than as
an honourable, humane, and a firm and upright judge.
Most of them grieved, indeed, that he should ever have
gone to India: all rejoiced to see him return in good
health and buoyant spirits. Rest, and the long sea
voyage, had recruited the one, nor could slander, de-
famation, and all the strategies of political faction, long
disturb the other.
Our first residence was in Grosvenor Street. The
house, furniture, and establishment of servants, had
all been procured beforehand, by the care and consi-
deration of his friends—the noble and well-natured
family of Bathurst. His Lordship, then ex-Chancellor,
* Of the precise day, and point of landing, I can give no account, nor
of any farther incidents of the voyage, beyond what I am able to glean
from an old and mutilated memorandum book, which contains the fol-
lowing entries,
“Friday, Feb. 27, took soundings at 80 fathoms; saw a sail, supposed
to be French.
“Monday, March 1, doubled the Cape of Good Hope.
“Monday 15, came to anchor at St. Helena.
“Tuesday 16, went ashore, was met by Mr. Corneille, the Governor,
Major Greene, the Deputy Governor, Mr. Wrangham, Mr. Bassett, and
the Council; dined with the Governor; lodged with Mr. Stroud, the
Surgeon.
“Tuesday 22, agreed with Captain West, of the Dutton, for the passage
of myself and family, my cousin Fraser, and Dr. Campbell, for £1,000.
“Wednesday, April 7, off Ascension.
“Saturday 10, about seven in the evening crossed the Line.
Thus ends this imperfect log; and though my father is known to have
kept a journal in his pocket-books for many years, I must here lament that
none were preserved by his executors.
278 RETIREMENT OF SIR ELIJAH.
having rightly estimated my father's character and
abilities, while practising as a barrister, had obtained
for him his Indian promotion, had signed his appoint-
ment, and it was now through the same kind and con-
tinued regard for Sir Elijah, that the noble members of
that family had condescended even to the recommenda-
tion and transfer of more than one domestic, from their
own establishment to ours. Well, and pleasantly, do
I remember the excellent English nurse, who passed
from the Countess's service to ours: where she, and her
daughter after her, remained, beloved and cherished,
till they severally died.
Although recalled “for the purpose of answering to
the charge specified,” namely, the charge of having
accepted the presidency of the Sudder Dewannee
Adaulut, -and upon no other charge, either specified or
implied,—yet was my father, on his arrival in England,
never, after all, called upon to answer to that charge.
Four years passed away before any parliamentary
measures were resorted to against him. His calum-
niators, however, had not been altogether idle : by
tongue and by the pen, by secret committees and
the public press, they had, meanwhile, kept up their
insidious attack; but hitherto they were not able to
arrange their parliamentary crusade. For years of
this time his Majesty’s government left the post of
Chief Justice of Calcutta unfilled, in the hope, or at
least in the contemplation of Sir Elijah's return to
India.
It is not surprising that, disgusted at the treatment
he had received, alarmed at the implacable spirit which
was manifesting itself against Hastings, and at the un-
scrupulous resolution of the faction to couple his name
and his actions with those of the Governor General—
in spite of truth—in spite of glaring facts—in spite of
accumulated and still accumulating evidence—it is not,
I say, surprising that he should have turned his eyes
for ever from the East. Besides these considerations,
my father had a young and numerous family to educate;
with whom, and with the tenderest and most exem-
plary of wives, he preferred living in retirement upon
the moderate fortune which he had partly inherited,
and partly saved, during ten years spent in an uneasy
RESIGNATION OF MIR. HASTINGS. 279
and laborious life abroad. No wonder if, with his
dear-bought experience, he had had enough of India
“Sat Trojae Priamoque datum.”
Mr. Hastings, too, having seen the war in India
brought to a glorious termination ; having seen that
vast and greatly-increased empire put in a condition of
safety; having witnessed the full and perfect triumph
of his policy; Mr. Hastings, too, resigned. He arrived
at London in June, 1785,-one year after my father.
Their friendship and intimacy were of course renewed:
but, meanwhile, a still closer and more frequent inter-
course had been formed between Burke and Francis ;
who, upon the return of the ex-Governor General, now
more vigorously pushed forward the impeachment.
They had made it a party business, and were enlisting
Mr. Fox, then the leader of the opposition, Sheridan
the ornamental orator of that party, Mr. Windham,
Sir Gilbert Elliot, Sir John Anstruther, Mr. Grey,
afterwards Earl Grey, and, in short, all the conspicuous
Whigs then in Parliament. It appears that, at first,
Burke levelled his artillery only against Hastings, whom
he was accustomed to call “the Great Delinquent; ”
and that he was induced, by the personal animosity of
Francis, to take Sir Elijah within the range of his
battery. Burke, who had certainly bestowed infinite
study upon Indian affairs, confessed, more than once,
that they were so complicated, as to be scarcely in-
telligible, except to those who had long lived in India;
and well knowing the prevailing indolence, the beset-
ting sins of Fox, Sheridan, and others of his political
friends, he doubted whether they would ever make
themselves acquainted with any part of that difficult
subject.* With the aid of Francis he undertook the
task of instruction; and the whole host of orators,
from Charles Fox to Sir Gilbert Elliot, became his
disciples. Yet, after all, an avowal was wrung from
Burke himself, that only Mr. Hastings, and his Indian
friends, could be said fully to comprehend Indian
matterS.
In the early stages of the crusade, Fox seems to have
* On this point see several letters published by Mr. Prior in his excel-
lent life of Burke; and other letters in the “Correspondence” edited by
Earl Fitzwilliam and Sir Richard Bourke.
\
280 PREPARATIONS FOR IMPEACHMENT.
been too conscientious not to hesitate and hang back
upon a road so foreign to him, and of which he could
see no end. For this backwardness, however, he soon
made ample amends, by his constitutional heat and
characteristic energy. But that both Burke and Francis
found it difficult in the onset to enlist their recruit, and
that Fox suggested the safer course, not to charge
what they were unable to prove, plainly appears from
the letters to which I refer.
Their more unscrupulous manager thought it strange,
after all that had passed between them, how Fox, or
any one else, could hesitate to rely implicitly upon the
faith of himself and Mr. Francis.” Burke endeavoured,
likewise, to show that a parliamentry impeachment was
not, in its nature, within the ordinary scope of law.t
To remove the scruples of Mr. Fox, he was carried down
to Beaconsfield by Francis ; and Francis afterwards
appears to have been the mezzano between Burke and
Fox, until the latter was fully indoctrinated, and in-
duced to act, in perfect conformity with the will of
Edmund Burke. If the reader will turn to Mr. Moore's
life of Sheridan, he will see how that brilliant dramatic
and political speechmaker was prepared for the part he
was to enact in the great tragi-comedy. He scarcely
knew more of India and its concerns, than of the geo-
graphical divisions and polity of the moon ; and he
was far too idle and profligate to toil over dry books
and voluminous reports. It suited him rather to be
lectured, vivá voce, by his preceptors; or, at most, to
skim the surface of some few convenient abstracts,
which they threw upon his desk, and out of which he
spun his flimsey web of oratory and stage effect.
Soon as it was resolved to make a party measure of
the impeachment, and to couple the Chief Justice with
the Governor General, every Whig, who would not join
in the cry, was scouted and run down as a renegade;
and even the Ministry itself was tampered with, by
means of intimidation, and through the medium of their
jealousy of power. To this end, Mr. Burke entered
* Letter from Burke to Francis, dated Beaconsfield, Dec. 10, 1785,
in Correspondence of the Right Hon. Edmund Burke, edited by Earl
Fitzwilliam, and Sir Richard Bourke. Vol. III. p. 38.
+ Ibid.
PREPARATIONS FOR IMPEACHMENT. 281
into a correspondence with Pitt's colleague and bosom
friend, Henry Dundas, who had lately been remune-
rated, for his share in the new India Bill, by the post of
President of the Board of Controul, and who was said
to be easily alarmed by the pretensions of any rival in
that extensive field of patronage. I cannot positively
affirm that Mr. Burke induced Dundas to believe that
there existed a wish or intention, in the highest quarter,
to place Mr. Hastings at the head of all Indian affairs;
such intrigues were doubtless better suited to the spirit
of Mr. Francis: but that the report was spread is certain;
and it seemed to be verified by the marked distinction
with which his Majesty George III. had received the
late Governor General, in spite of the heavy accusations
which had been heaped upon him. Be this as it may,
there is good proof that Burke attempted to excite a
jealousy against Hastings in the breast of Dundas, and
through Dundas in the Prime Minister himself. When
the parliamentary proceedings against Hastings and my
father were in full progress, but while Mr. Pitt appears
still to have been wavering as to what part he should
take, Mr. Burke, in a letter dated March 25, 1787,
wrote to tell Dundas that unless Mr. Pitt joined in
crushing “the Indian faction,” he would be crushed by
them. -
“But,” he continued, “I think it, in a manner, impos-
sible that all this should not be felt by you and Mr. Pitt. I
shall, therefore, only take leave to add, that, if ever there was a
common naticmal cause totally separated from party, it is this.
A body of men in close connection of common guilt, and com-
mon apprehension of danger, with a strong and just confidence
of future power if they escape, with a degree of wealth and
influence, which, perhaps, even yourself have not calculated
at anything like its just rate, is not forming, but actually
formed, in this country:-This body is under Mr. Hastings,
as an Indian leader, and will have, very soon, if it has
not already, an English political leader too. This body, if
they should now obtain a triumph, will be too strong for your
ministry, or for any ministry. I go further, and assert, with-
out the least shadow of hesitation, that it will turn out too
strong for any description of merely natural interest that
exists, or, on any probable speculation, can exist in our times.
Nothing can rescue the country out of their hands, but our
vigourous use of the present fortunate moment, which, if once
282 PREPARATIONS FOR IMPEACHMENT.
lost, is never to be recovered, for breaking up this corrupt
combination, by effectually crushing the leader and principal
members of the corps. The triumph of that faction will not
be over us, who are not the keepers of the parliamentary force,
but over you ; and it is not you who will govern them, but
they who will tyrannize over you, and over the nation along with
you. You have vindictive people to deal with, and you have
gone too far to be forgiven. I do not know whether, setting
aside the justice and honour of the nation, deeply involved in
this business, you will think the political hints I have given
you to be of importance. You, who hold power, and are
likely to hold it, are much more concerned in that question
than I am, or can be.” +
Between the recall of my father, and the resignation
of Mr. Hastings, many important changes had been
made in our legislation for India; changes by which
the British Government acknowledged the defects of
the previous Acts, under which the Governor General
and Chief Justice had been so long compelled to labour.
On the 13th of August, 1784, Mr. Pitt's celebrated
India Bill, passed into law. It gave a salutary check
to the Court of Directors, who had too often governed
a mighty empire on mere commercial principles. It
instituted the Board of Controul, by which the govern-
ment of India may be said to have been managed ever
since. I do not feel myself called upon to examine,
still less to criticise this Bill, farther than in allusion to
the difficulty of legislating for this vast and anomalous
imperium in imperio, and to the hard and trying con-
dition of all public men in India, who were bound to
shape their conduct according to the English Acts of
Parliament. It may, however, be allowed me to re-
mind the reader, that even Mr. Pitt's great India Bill,
upon which far more attention had been bestowed, than
upon any similar previous enactment, was not in ex-
istence two years, before it was found necessary to ex-
plain and amend it by three subsequent bills; suc-
cessively introduced by the Prime Minister himself.
Francis, who had been returned to Parliament for
the Borough of Yarmouth, in the Isle of Wight, de-
voted all the eloquence and talent he was master of, to
* Correspondence of the Right Honourable Edmund Burke, &c., edited
by Earl Fitzwilliam, and Sir Richard Bourke. Vol. III. p. 48—52.
PREPARATIONS FOR IMTPEACHMENT. 283
the office of accuser. As there is accumulative treason,
so there is accumulative scandal. Having laid a broad
basis for his defamation by means of the press, of
private correspondence, and conversation, he now built
up his pile with a more daring and rapid hand. Errors
were now magnified into crimes, and offences, at which
he had before only hinted, were now broadly charged
upon Mr. Hastings and my father. The same care has
ever been taken to connect them, where there had never
been any connection at all. Rather than trust to my
own feelings in this part of my subject, I will use the
words of another writer.
“That tender-hearted man, Philip Francis, was the chief
source of information to the opposition and prosecution, in all
matters concerning the Governor General’s dealings with the
native princes, rajahs, and begums; and a source which had
been flowing in full torrent ever since the return of the ex-
Member of the Supreme Council of Calcutta to England, with
the wound received at Hastings's hand fresh on his body, and
a thousand animosities, personal and political, rankling in his
mind. Burke's spirit was indisputably high and noble; but
he must have been blinded by his enthusiasm in what he con-
sidered the greatest cause in which he was ever engaged, be-
fore he could accept, without doubt or softening, the evidence
of a man like Francis, in such a case. But, that he and his
party did so, is even more notorious than the fact that the
ex-Member of the Council—who, by means never explained,”
had accumulated in six years, and had brought home, a great
deal more money than the Governor General,—possessed the
most vindictive and blackest heart of any public man of that
day. Francis, himself, afterwards declared, from his seat in
the House of Commons, that he ‘supplied the information,”
that he “furnished the materials,’ that he ‘prompted the pro-
secution | * gº tº e º 'º º º
“The venom which had been spread in former days, when
Francis was Junius, and a poor clerk in the War Office, over
the Duke of Grafton, the Duke of Bedford, Sir William Draper,
the great Lord Mansfield, and the King, was now all concen-
* The means were never explained by Francis himself; but they were
thus explained by others:—Francis, contrary to the letter and whole
spirit of the prohibitory clauses in the Regulating Act, and in contempt of
his own oath of office, had trafficked in opium, and other commodities, by
means of his brother-in-law, Mr. Sheriff Macrabie. His pay of £10,000
a year, for six years, could never have enabled Francis to bring home
the very great fortune which he brought.
284 PREPARATIONS FOR IMPEACHMENT.
trated upon Hastings and Impey. The ex-Member of Council
at Calcutta, was impelled by ambition and revenge, two of the
strongest of human passions, and both of them more violent
and intense in the heart of Francis, than they are usually
found to be in human nature. * @ tº e
“How the demoniacal passion of revenge was excited against
Hastings, has been sufficiently shown. Sir Elijah Impey, as
Chief Judge, had several times curbed the fiery spirit of the
Member and leader of Council, and upset his daring projects.
That Impey had been the schoolfellow and early friend of
Hastings, was, by itself, enough to make him odious in the
eyes of Francis; but, in addition to all these grounds for
hostility, there was this memorable circumstance,—Philip
Francis, during his residence in Calcutta, had made himself
amenable to a civil prosecution, and it had been the duty of
Sir Elijah Impey to pronounce sentence upon him, inflicting
heavy damages.” “
Thus was it, that long before he was called to any
account himself, my father heard his name linked with
that of Hastings in nearly every oration delivered in
Parliament, on the affairs of India, by Francis, Burke,
Fox, Sheridan, or any other member of that party.
It was on the 4th of April, 1787, that Burke, in his
place, charged Warren Hastings with high crimes and
misdemeanours, and delivered nine of his articles of
charge. This was the beginning of the impeachment
proceedings, which lasted altogether ten years. Among
these nine first charges, was included the one relating
to the trial and execution of Nuncomar; and, in sup-
porting this charge against Mr. Hastings, nearly every
possible scandal or falsehood was heaped upon Sir
Elijah Impey. Yet, many more anxious months passed
ere my father could publicly reply to the horrible ac-
cusation; and, during the whole of that interval, the
unfavourable impression on the mind of the public was
artfully deepened by my father's persecutors.
On the 30th of May the King prorogued Parliament.
Sir Gilbert Elliot's motion for the impeachment of Sir
Elijah, was therefore put off until the next session.
A few days before the Christmas holidays—on the
12th of December, 1787—Sir Gilbert presented to the
House six articles of charge of various high crimes and
* Our Indian Empire. Vol. I. p. 422.
PREPARATIONS FOR IMPEACHMENT. 285
misdemeanours against Sir Elijah Impey,” late Chief
Justice of Bengal, &c. Sir Gilbert, who was closely
linked with Burke and Fox, and who was one of the
most approved orators of the House of Commons,
delivered a very long and impressive speech, in which he
professed to describe Sir Elijah's legal career, from his
first arrival at Calcutta, down to his recall on the reso-
lution of the House, provoked by his having accepted
the Presidency of the Sudder Dewannee Adaulut from
Hastings—an original complaint, which occupied but a
very small part of the present oration—the chief objects
now proposed by Sir Gilbert being to couple the Chief
Justice with the Governor General, in the alleged
iniquity of the execution of Nuncomar, and of the
transactions which had taken place at Benares and in
Oude. The greatest stress of all was laid upon the
case of the Rajah ; and Sir Gilbert roundly and re-
peatedly declared, that he had been murdered not by
the four judges collectively, but by Sir Elijah alone, in
order to screen the Governor General. Nothing can
be more clear than the source from which the orator
had derived his statements. Sir Gilbert did little more
than repeat and embellish the materials which had been
furnished by Francis.
Twelve years had now elapsed since Nuncomar's
death, yet hitherto nothing had been heard of that pa-
thetic letter which gave the minute account of the Rajah's
execution. This letter, which was made to pass as the
production of Francis's brother-in-law, Macrabie, She-
riff of Calcutta at the time of that event, was now pro-
duced for the first time, and read to the excited House
by Sir Gilbert Elliot. But where had this epistle been
concealed for twelve long years? Was it not, to say
the least of it, more than suspicious, that a violent pre-
judice against my father had been inculcated in the
mind of a man so closely connected with Francis 2 But
I will venture even to affirm, that the letter was never
written by the Sheriff of Calcutta. Macrabie was a
very successful trader on his own account, and a no less
* Though my father had been above three years in England, his Indian
appointment had not yet been filled up; nor was it until the 10th of
November, of this present year, that he had acquainted the Court of
Directors that his Majesty had been pleased to accept his resignation.
286 PREPARATIONS FOR IMPEACHMENT.
skilful agent for his brother-in-law in his secret and
illicit contracts for opium, but was never believed to
have given any proof of literary acquirements. This
letter, on the other hand, was very ably written; as a
piece of fiction it may be called admirable; nor am I
singular in asserting that it bears internal evidence of
having been composed or retouched by the author of the
Letters of Junius. In this opinion, I believe that
every candid reader will concur, who will carefully
examine the style and consider the circumstances
and the time in which it was first produced. Such
a reader need scarcely be reminded of the book of
“Travels,” which had been published some five years
before Sir Gilbert Elliot delivered his speech against my
father. In that book, little more was said of the execution
of Nuncomar than that he was hanged; but in this fa-
mous letter the minutest details were given of his last
moments, a most vivid and startling picture was drawn
of the closing scene, and the astounding effects which it
produced on the native population. Sir Gilbert Elliot's
rhetoric was founded solely on this questionable letter.
His speech appeared in the Annual Register, published
in 1788; and in the Appendix to that same volume of
the Register, the world saw for the first time the letter
attributed to Sheriff Macrabie. It was there stated to
have been written immediately after the execution of
the convict; but no attempt was made to explain where
so interesting a document had been sleeping for twelve
long years. If there had been any fairness in the report
of proceedings published in the Annual Register, Sir
Elijah Impey's triumphant defence would have appeared
in the same volume; but this did not suit the views of the
party who wrote for or controlled that partial publication.
The letter thus assumed to be authentic, thus unques-
tioned, thus uncriticised, was put upon record, and made
accessible to all readers in a highly popular work; and,
in the course of the fifty-eight years which have since
elapsed, many are the hearts that it has wrung, and not
few the pens it has misguided. Writers and compilers
have been duped by its speciousness, and have not
paused to inquire into its authenticity. Yet, in sober
truth, the particulars it narrates are either directly con-
tradicted by contemporary accounts upon legal evidence
PREPARATIONS FOR IMPEACHMENT. 287
*
or found to be utterly inconsistent with the moral his-
tory of India, and the character, condition, and habits
of the natives.
“If,” says Mr. MacFarlane, “what is very doubtful, as well
as what is absolutely false, be deducted from this pathetic
narrative, very little that is either pathetic or picturesque will
remain to adorn the tale. It is not true that Nuncomar was
ignorant of the predicament in which he stood; it is not true
that natives had never been executed for the crime of forgery;
it is not true that the mode of executing by hanging was so
peculiarly awful and horrible in the eyes of the Hindus, for
hanging had been a not uncommon mode of putting criminals
to death among the Hindus themselves; it is not true that the
life of a Brahmin was regarded as sacred by the Hindus, let
his crime be what it might, for Brahmins had been repeatedly
executed by sentence of native courts; it is not true that
Nuncomar was the head of the Hindu race and religion, or
that his death excited among the Hindus the same feeling that
a devout Catholic in the dark ages would have felt at seeing a
prelate of the highest dignity sent to the gallows by a secular
tribunal. If any such feeling had existed, the Hindus of Cal-
cutta, who were very numerous (and in many instances ex-
ceedingly well informed that the majority of the Council—
Francis, Clavering, and Monson—were at the moment more
powerful than Hastings), would have signed a petition, as they
had done in the case of Radachund Mettre, who was, like Nun-
comar, both an Hindu and a Brahmin. Nuncomar may have
been of the highest caste, and ‘a Brahmin of the Brahmins;’
but men with these hereditary advantages or qualities neither
were, nor are, secured against misfortune, poverty, obscurity,
contempt ; and then, as now, many Hindus of the highest caste
occupied the lowest posts in society, filled the most menial
offices, and lived and died in obscurity. When Nuncomar pos-
sessed wealth and political power, he was highly considered;
but the consideration of his countrymen ended with his
wealth and power. When one of the best informed and most
respectable witnesses * upon Hasting's trial, was asked whether
the Rajah Nuncomar was not a very considerable person among
the Hindus, he replied that he had been so at one time, but
that he had ceased to be so long before his arrest. There
is nothing at all uncommon in Nuncomar having displayed in
prison, or on the scaffold, the composure and resignation which
have been ascribed to him; but it is very doubtful, whether
there were any of those ‘howlings and lamentations of the poor
* Major Rennell, the distinguished Eastern geographer, &c.
288 SIR GILBERT ELLIOT’s
wretched people, taking their last leave of him,” which rend
the heart in Sir Gilbert Elliot's speech, and in the letter
attributed to Sheriff Macrabie; and it is very doubtful indeed
whether, at the moment the drop fell, the Hindus set up a
universal yell, and with piercing cries of horror and dismay,
betook themselves to flight, running, many of them, as far as
the Ganges, and plunging into that holy stream, as if to wash
away the pollution they had contracted in viewing such a
spectacle.”
I have been assured, not merely by my father and
Mr. Hastings, but by other persons who were in Cal-
cutta on the day of the execution, that the scene excited
very little interest among the Hindus, and that the
rest of the natives witnessed it with quiet indifference, or
the more openly expressed opinion, that the Rajah,
“ the worst man in India,” met with the fate he had
long merited.
Sir Gilbert Elliot proceeded to demonstrate that there
was no greater delinquent—Hastings always ex-
cepted—than the late Chief Justice. He energetically
called upon the gentlemen of the law, to which body
he himself had once belonged, to throw off from the
nation, and from their profession, the guilt of an in-
dividual lawyer, by bringing him to punishment for
crimes which had been committed in the name of the
law. The articles of charge which he moved to be read,
related—
I. To the trial and execution of Nuncomar.
II. To the conduct of Sir Elijah in a cause called the Patna
Call Se.
III. To extension of jurisdiction, illegally and oppressively,
beyond the intention of the Act and Charter.
IV. To the Cossijurah cause, in which the extension of
jurisdiction had been carried out with peculiar violence.
W. To the acceptance of the office of Judge of the Sudder
Dewannee Adaulut, which was affirmed to be contrary to law,
and not only repugnant to the spirit of the Act and Charter,
but fundamentally subversive of all its material purposes.
WI. To the conduct of Sir Elijah in Oude and Benares,
where, it was declared, the Chief Justice became the agent
and tool of Hastings.
The charges being received, and laid upon the table,
were, upon a motion, read by the clerk, proformá; after
which, Sir Gilbert moved that they should be at once
ARTICLES OF CHARGE. 289
referred to a committee. This precipitation was ob-
jected to by Mr. Pitt, who suggested that the charges
ought, in the first place, to be printed, and then re-
ferred, not to a select committee, but to a committee of
the whole House. This mode of proceeding was
adopted; and the 4th of February, 1788, was fixed for
the Committee to sit.
C H A PTE R XIII.
SIR ELIJAH IMPEY’S TRIUMPHANT DEFENCE ON THE NUN-
COMAR CHARGE.
On the appointed day—the 4th of February, 1788–
before the Committee proceeded to business, a petition
was presented from Sir Elijah Impey, praying to be
heard in answer to the charges, before the House pro-
ceeded any further. The prayer being granted, he was
called to the bar. He was attended by his counsel, the
Attorney,” and Solicitor General, F and assisted by his
son, my late brother Archibald Elijah, then a very
young student-at-law, who excited much interest in the
House, by the clear and intelligent manner in which he
read, and handed to his father, the several affidavits and
other vouchers called for in the course of the defence.
This defence was not read, but orally delivered.j Sir
Elijah began his address to the Chairman of the Com-
mittee, in these words:–
“Sir, Having observed with great concern from the votes
of this House, that an honourable Member had presented
articles of charge of high crimes and misdemeanours against
me, I esteemed it a due attention to the House, as well as
* Sir Richard Pepper Arden, afterwards Lord Alvanley, and Chief
Justice of the Common Pleas.
f Sir Archibald Macdonald, afterwards Chief Baron of the Exchequer.
† Much to the dissatisfaction of his accusers. They had witnessed the
disadvantage under which Mr. Hastings had recently laboured from the
fatiguing process of reading, and had calculated upon a repetition of
the same effect. They were besides disappointed, when, calling for a copy
of Sir Elijah Impey's speech, they were told that none existed, which they
might otherwise have turned to his disadvantage.
sIR ELIJAH's DEFENCE. 29 |
justice to myself, to endeavour to obviate, as early as possible,
that matter; which, from the articles having been referred to
a committee of the whole House, I apprehended had already
subjected me in some measure to its censure ; and was in hopes,
by the assistance of a Member of this House, who had taken the
pains of making himself master of the facts which have given
rise to the accusation, to have disclosed the mature of the
defence which I could make to it; by which it would demon-
stratively appear, that there was no probable ground that the
articles could be finally supported, and therefore that the
House would not think it consistent with its dignity, wisdom,
and justice, to proceed further upon them. The sudden in-
disposition of that gentleman* having rendered his attendance
in his place impossible, I despaired of having the real merits
of my case—which has been strangely misrepresented, and, I
had reason to think, almost universally misunderstood—made
intelligible, unless I was permitted to lay it before the House;
I, therefore, though unprepared for the occasion, presented a
petition that I may do it myself. I now return my thanks
for the indulgence granted me thus to obtrude myself on your
attention, and request that it may be further extended to me
for the haste of the occasion, which will necessarily oblige me
to make my address in a cruder manner than my respect for
this Assembly would otherwise have allowed. But before I
enter into it, I beg leave to state some particular diffi-
culties, which I am laid under by the former proceedings
of this House, and by the specific cause assigned for my
recall.”
Sir Elijah then represented that he had been recalled
upon one charge, and was now accused on five other
charges. He said that the whole matter of the four
first articles had been collected from evidence which had
been drawn up by Committees of the House, the last
of which sat in 1781; that this evidence had been fully
discussed, had been the subject of an Act of Parliament,
and yet had furnished no charges against him at the
time. He continued :—
“On the 27th of January, 1783, I received a letter from
the Earl of Shelburne, dated the 8th of July, 1782, which
conveyed his Majesty’s commands to me to return to this
kingdom for the purpose of answering a charge specifted in an
address which had been laid before his Majesty, in conse-
quence of a vote of the 3rd of May, 1782. That vote related
* Sir Richard Sutton, Bart., Member for Boroughbridge.
U 2
292 sIR ELIJAH's DEFENCE
only to the acceptance of an office not agreeable to the true
intent and meaning of the Act 13 George III.* As the
cause assigned for my recall was subsequent to all the trans-
actions which have furnished matter for these charges, I
entertained no idea that anything within the knowledge of the
House, prior to the cause which had been selected as a charge
against me, would be objected to me. In this opinion I was
confirmed by the letters of my private friends ; and I was
thereby induced to esteem his Lordship's letter, so particu-
larising the charge, to be a specific notice of the whole evi-
dence which I was to bring with me for my defence. I could
not suspect when the acceptance of an office had appeared the
most proper subject for prosecution, that an accusation for so
foul an offence as that contained in the first article, could
have been omitted. Under these impressions, though I col-
lected all possible matcrials to defend myself against the
charge of which I had notice, I did not bring any with me
for the defence of those acts, which, knowing them to be
legal, and done in the necessary and conscientious discharge
of my duty, I had no reason to think could ever have been
imputed to me as criminal, and for which I had reason to
think all intention of arraigning either me, or the other
judges, after the fullest consideration, had been totally aban-
doned. Had notice been given me, even after my arrival, or
within two years of it, that these charges would have been
preferred against me, I should have had full time to procure
authentic vouchers and records for my judicial conduct, and
witnesses to such other matters as could not be proved by
written evidence. Thus misled by appearances, I am called
to answer those charges without any evidence but that which
I may be able to extract from the very materials which have
been compiled against me, and from some few papers, which
I have casually, not purposely, brought with me.”
* This letter has been already quoted, but, like other matter, it is
necessary to recite it.
“Whitehall, July 8, 1782.
“Sir, I have the honour to transmit to you an address laid before
his Majesty, in consequence of a vote of the House of Commons on the
3rd of May last, for the purpose of your recall. I am, in consequence
thereof, to signify to you his Majesty's commands, that you should take
the earliest opportunity, consistent with the necessary arrangements of
your affairs, to return home to this kingdom, for the purpose of answering
to the charge specified in the said address.
“I have the honour to be, with the greatest esteem,
“Sir,
“Your most obedient humble Servant,
“ (Signed) SHELBURNE.
“Sir Elijah Impey, Knight, &c. &c.”
ON THE NU N COMAR CHARGE. 293
After having read and commented at some length on
the strictures made by the Committee on the body of
evidence attempted to be applied to the four first charges,
he remarked :—
“These strictures contain as strong objections as can be
made to any evidence adduced to support a criminal charge ;
and as the Committee has not pointed out what particular
facts are proved by competent evidence, and what by evidence
liable to the objections they have stated, it will be difficult
either for this House or any party accused on it, to discover
whether the whole, or any of the facts stated, have been so
proved that they ought to be credited in a judicial proceeding.
I request I may not be understood by this observation to take
any objection to the propriety of the evidence for the purpose
jor which it was collected—REFor M-but to the application
of it to a purpose foreign to that for which it was collected—A
CRIMINAL CHARGE. It is stated as “a body of facts to serve
as a foundation of provisions, and to enable the House to
determine on the fitness of the application of the laws of
England to Bengal, and to decide on the eatent of the
jurisdiction of the Supreme Court, for the purpose of
superseding or contracting it.’ This was the professed ob-
ject of the inquiry. Though the representations of the East
India Company, or of the Government in Bengal, might
be admitted on their credit alone, without any investigation,
as sufficient for the object of REFoRM, yet I submit that those
representations, or such parts of the evidence as are liable to
these objections of the Committee, cannot legally be applied
to substantiate A CRIMINAL CHARGE, even if collected for
that purpose.”
It had been urged that the first article relating to Nun-
comar's execution, was supported by the general sense
of mankind; but he observed that, before the sense of
mankind in general could be admitted, it would be just
to examine by what means it had been acquired. If it
was found to be the opinion of the public, founded on
an impartial statement of the facts, on ample discussion
of the argument on both sides, on a full investigation of
the proceedings, its authority was irresistible, and in that
case it might be truly said that vow populi est vow Dei.
But, if partial representations had been laid before the
public; if one side of the question only had been stated;
if no inquiry had been made into the facts; if it turned
out that the public had been abused and misled; then
294 SIR ELIJAH's DEFENCE
the public opinion would be of no value; and to give
weight to it would be to deliver up the lives, properties,
and fame of the best men to the rage of partisans
and the virulence of libellers, the base and merce-
nary instruments of every malignant and unprincipled
faction.
“It is now twelve years,” said he, “since this nation has
been deluded by false and perpetual informations, that the
Supreme Court of Judicature had most absurdly, cruelly, and
without authority, obtruded the complex and intricate criminal
laws of England on the populous nations of Bengal, Bahar, and
Orissa, whose law, religion, and habits, were particularly ab-
horrent to them; that a native of Bengal, of high rank, had
been tried and convicted on a capital law of England for an
offence punishable in the place where it was committed by fine
only ; that the Court which had tried him had no jurisdiction
over his person ; that he was brought within the limits of the
jurisdiction by force, and in that state that the Court adjudged
that its jurisdiction had attached upon him ; and, to sum
up all, in the words most deservedly odious to an English ear,
he was finally executed under that which, if a law at all, was an
ea post facto law.”
He complained that all kinds of calumnies had been
propagated through the press, not merely in daily papers,
but in laboured treatises, in histories, in books of travels,
fabricated for the sole purpose of disseminating and
perpetuating libels of this and a similar tendency, with
a more certain effect because less suspected. These
authors had dared to make use of the high and respect-
able names of Sir William Blackstone and Lord Mans-
field, as condemning the illegality of the proceedings in
the case of Nuncomar, the latter being made to call the
execution “a legal murder.” He read a letter, dated
Jan. 30, 1779, written by Blackstone, who was recently
dead, to express his admiration of the high reputation
which he (Sir Elijah) and his colleagues had acquired,
among all dispassionate men in England, by their pru-
dent and impartial administration of justice “on very
delicate and important occasions.” My father prided
himself on enjoying the favourable opinion of Lord
Mansfield, who was living, and in full possession of his
faculties, though at a very advanced age; and he assured
the House that, so far from using any such expressions,
ON THE NUN COMAR CHARGE. 295
that noble lord had declared that he had never formed
any opinion upon Nuncomar's case—that the assertion
was an absolute falsehood, and that his lordship au-
thorised him so to contradict it.* The name of another
great lawyer, Lord Ashburton (Dunning), had also been
introduced to add to the weight of the popular con-
demnation. He read a letter from that nobleman ex-
pressly to the point, and containing his full approbation
of Nuncomar's trial. It was dated January 5, 1776,
and ran thus:
“The publication of the trial has been of use, as it has
obviated abundance of ridiculous and groundless stories. I see
nothing in the proceedings to disapprove of, except that you
seem to have wasted more time in the discussion of the privi-
leges of ambassadors, than so ridiculous a claim deserved.”
Dunning, like Blackstone, was in his grave, and Lord
Mansfield, as full of honours as of years, had recently
retired from the bench.
“These,” said Sir Elijah, “were not men who would hold
correspondence with judges guilty of a legal murder; these
were not men who would be volunteers in applauding such
conduct. They were great lawyers in their day; they are
gone, and almost a new generation has succeeded them.
Though it has been given out authoritatively, and propagated
in print to prejudice my cause, I shall not, till I am convinced
by fatal experience, be induced to believe that the gentlemen
of the same profession, now in this House, can so totally differ
in opinion from them, as to have reprobated my conduct, and
pre-judged me unheard. . . . . . . . My defence
depending chiefly on matters of law, my reliance is on no per-
sonal favour, but on their professional ability to determine on
matters of law, and their characteristic habit, not to condemn,
not to reprobate without a hearing. “Audi alteram partem’
is a maxim acknowledged to be equitable by all who know
what justice is ; but it is engraven on the heart of every
honest lawyer.”
* After the termination of these proceedings in May, 1788, my father
called upon Lord Mansfield, who, shaking him cordially by the hand, ex-
claimed, “So, Sir Elijah, you have passed safe over the coals.” This
anecdote was related to me by a near relation of the venerable Earl, and
an intimate friend of my own, who, being then a boy at Westminster
School, somewhat above my own standing, happened to be present at the
interview, and appeared to retain a distinct impression of what passed
between the parties.
296 SIR ELIJAH's DEFENCE
“My arrival in England,” continued my father, “renewed
the subject, and the papers have every day teemed with fresh
libels. I resolved—and I have kept my resolution—that I
would not myself publish, mor, as far as I was able, suffer any
publication to be made on my account. . . . . I dis-
daimed to defend myself by the arts by which I have been
attacked—to write, or suffer anything to be written anony-
mously, I never would condescend. To the conscience of
every individual who forms the body of that public, whose
sense is alleged to be against me, I would put these questions :
Whether, if he has formed any such opinion, it has not been
from the materials which I have stated 7 Whether he has
been informed of the truth of the facts 7 Whether he has
read the Act of Parliament and the Charter giving jurisdiction
to the Supreme Court 7 Whether he knows the state of the
town of Calcutta ? Whether he knows what the law there
was before the Charter 7 Whether it has been at all, and in
what manner, altered by it? Whether he has examined the
evidence at the trial, and all the circumstances under which
the law was carried into execution ? Whether he now knows
on what the legality or illegality of the conviction turns 7
If he does not, whether, before his opinion thus formed should
operate as the foundation of a criminal charge, he should not
have full information on those points' That information I
hope to give to the House.”
After recapitulating the several articles contained in
the charge about Nuncomar, as, that he had illegally
brought the Rajah under the jurisdiction of his Court;
that Nuncomar had been committed on false and insuf-
ficient evidence; that all the proceedings were the fruit
of a confederacy between him and Warren Hastings,
for the purpose of screening the Governor General from
a just accusation by accomplishing the death of his
accuser, &c., Sir Elijah said,
“If the premises are true, they warrant a more severe con-
clusion ; if the premises are true, I am guilty, not of misde-
meanours, I am guilty of murder; if for the purpose of ‘screen-
* Here, in the original speech, for which I must refer to the publication
by Stockdale, in 1788, follows a copious analysis of the Regulation Act
and Charter, which I have already abstracted: next, a revision of the
Articles, where various objections are taken to the application of them re-
lative to those articles : then a comparison of the Act and Charter of
George III., with those of 13 George I. and 16 George II., and lastly, a
detection of the fallacy by which it was attempted to substantiate these
objections, &c., &c.
ON THE NU N COMAR CHARGE. 297
ing the guilty from a just accusation,” I have made the law of
England the engine and instrument of a confederacy to ac-
complish the death of the accuser, I have been guilty of a
murder of the basest, foulest, and most aggravated nature.
From such premises that is the only true conclusion. I do
not decline it. It would have been justice to have drawn it.
My life would then have been forfeit, had I been found guilty.
It would have been mercy to have sacrificed that life, as an
atonement for these enormous crimes; which, if I am con-
victed of, or am to lie under the public imputation of
having perpetrated, would become a burden too intoler-
able to be dragged to a distant grave. The substance of this
Article has long been before the public, but brought before it
in a manner which afforded me no means of answering it.
The weight of it has, indeed, borne so heavy on me, that
nothing but the consolation of my own conscience, indigma-
tion for unworthy treatment, and the expectation that the
truth would at some time or other be revealed, could have
supported me under it. With an overflowing heart I return
my thanks to God, and his immediate instrument, my accuser,
that he has been pleased to afford me this opportunity, now
first given, of disclosing the true state of this so long misre-
presented case, and of vindicating my own honour, and the
conduct of the much injured judges of the Supreme Court.”
After reciting the powers and the extent of the juris-
diction of the Court, as established by Act and Charter,
he positively averred, that from the establishment of the
Court, till he left Bengal, in December, 1783, there had
been no indictment tried against any person who was
not an inhabitant of Calcutta, nor for crimes not com-
mitted in Calcutta. He insisted that Nuncomar was a
settled inhabitant of Calcutta; that he was not ig-
norant of the law, but well acquainted with it; and,
that the crime with which he was charged was com-
mitted in Calcutta.
“An Hindu inhabitant of Calcutta,” said he, “was as much
amenable to the English law in Calcutta, as if the said
Hindu had been an inhabitant of London. He might, with
equal propriety, object to being tried by any law but that of
his native country at the Old Bailey, as at the Court House
in Calcutta. Gibraltar, in the kingdom of Spain, is,
Calais, in that of France, was, part of the dominion of this
realm: admitting the laws of England to have been introduced
into those towns, a French inhabitant of Calais, or a Spanish
inhabitant of Gibraltar, having offended against the law under
298 SIR ELIJAH's DEFENCE
which he dwelt, might, with equal reason, complain that he
was not tried by the law of the place of his nativity, as an
Hindu in Calcutta, because that town is situated in Bengal.
There is nothing in the quality of an Hindu that makes the
law of the country wherein he was born more attached to him,
than to a Frenchman, or a Spaniard; all must be obedient
to the law that protects them. It was not till since the seat
of government, and the collection of the revenue, have been
brought to Calcutta, that it has become populous, by the influx
of black inhabitants. The laws have not been obtruded on
them, they have come to the laws of England.”
He affirmed, that long before his time the laws of
England, statute and common, had been indiscri-
minately put in force at Calcutta; that murders, high-
way robberies, burglaries, felonies of all kinds, had been
tried in the same manner as at the Old Bailey, and con-
victions and executions had on them, as well against
Hindus, Mussulmans, Portuguese, and other foreign
inhabitants, as against those who were more especially
called British subjects. Copies of the records of the
old Court were in the India House, and must be full of
such trials. Besides records, and the precedents they
established, he had been guided by the Charter, and by
instructions sent out by the Court of Directors, showing
the new Court how to proceed against prisoners not
understanding English; how to proceed when any Por-
tuguese, Hindu, or other native of India, not born of
British parents, should happen to be prosecuted for
any capital offence; which, according to the instructions,
would “probably often happen.”
On legal conclusions and precedents, the Supreme
Court would have been justified in trying Nuncomar as
an inhabitant of Calcutta for a crime committed in Cal-
cutta; but before proceeding to the trial he made a still
more particular search, and found that this specific sta-
tute of forgery had been acted on, and most completely
published, to all the inhabitants of Calcutta, and to the
Hindus more especially; for he found that, in 1765, Ra-
dachund Mettre, an Hindu, had been tried, convicted,
and received sentence of death by the former Court, for
the forgery of the codicil of a will of one Cojah Solo-
mon, an Armenian. He admitted that this Hindu had
not been hanged, but that was because it was the first
condemnation for such a crime.
U N THE NUN COMAR CHARGE. 299
“I found,” said he, “that the native Hinduinhabitants of Cal-
cutta had petitioned the President and Council for his respite,
not pretending that they were not subject to the laws of Cal-
cutta, but chiefly on this ground : that, till that trial, neither
they nor the prisoner understood the crime to be punishable
by death, it not being so by the country laws. Their petition
is solely for mercy in that instance, without any complaint
of the law, or desire that it should not in future be executed.
In consequence of this application the President and Council
resolved to recommend the prisoner to mercy in these remark-
able expressions: ‘in hopes that the condemnation will be suff-
cient to deter others from committing the like offence.’ It
appeared by the records, that the East India Company
had sent his Majesty’s pardon; all my diligence could not
furnish me with any comment made on this proceeding ; and
finding no censure passed upon it by the Court of Directors or
the King's ministers, to whom the case must have been sub-
mitted to obtain the pardon, and that the whole passed in the
ordinary course of business, and accorded with the other pro-
ceedings of the Court, I esteemed it a full precedent, more es-
pecially as there had been a plain intimation from the Gover-
nor 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.”
It was alleged in the present articles of charge, that
Nuncomar had been brought to Calcutta by force, and
was there detained as a prisoner at the time of the com-
mission of the crime.
“I deny the truth of the fact,” said Sir Elijah, “and those
gentlemen who were Members of the Council when Nuncomar
was tried, and are now Members of this House, must well
know the fact is not true. Had it been true, yet, before it
could be matter of objection to the judgment, it must be shown
it was in evidence at the trial ; it then would have been
made part, and a material part of his defence : it would have
been decisive in his favour ; but the contrary was in proof;
he was proved to be a settled inhabitant of Calcutta;
no such objection was ever suggested, nor was any attempt
made to take him out of the jurisdiction of the Court as not
being an inhabitant of the town.”
He said he could trace the story of Nuncomar's being
conducted to Calcutta, and detained a prisoner there
until the arrival of the Supreme Court, to no better
authority than that of a libellous letter in a book enti-
300 SIR ELIJAH's DEFENCE
tled “Travels in Europe, Asia, and Africa,” published in
1782;” that the author of that book, from his known
connection, might have received more true information;
and that book, like every libel published on the subject,
uniformly endeavoured, as the articles of charge were
now doing, to advance the character of Sir Robert
Chambers at the expense of his own. As to the part of
the charge that alleged that Nuncomar had been con-
victed on false and insufficient evidence, he requested
the House, before they assented to the truth of that
proposition, to peruse the whole trial and judge for
themselves. As to the mode of execution by hanging,
the laws of England left nothing to the discretion of the
Court; the sentence for the felony being, that the con-
vict be hung by the neck till he is dead. To vary was
treated by our law-books as criminal in the highest
degree.
“Some,” said Sir Elijah, “go so far—though certainly too
far—as to say that this is not in the power of the King him-
self; that he may indeed pardon part of the sentence—as in
high treason all but beheading—but, that he cannot order
execution to be done in a manner variant from the sentence.”
He declared that, before Nuncomar suffered, he had
the most authentic information, that Hindus of all
castes, Brahmins included, had been executed by
hanging.
“I was particularly informed,” said he, “by a gentleman
formerly a Member of the Council in Bengal, and now of
this House,t who has this day repeated to me the same
information, that he had himself carried such sentence
into execution against two Brahmins, without any disturbance,
and even with the consent of the Hindus themselves. The
prosecutor who sued for the execution in this case, was
an Hindu; many of the witnesses were Hindus; what
the sentence must be, was well known to the prisoner, the
prosecutor, and all the Hindus in the settlement; yet, no ob-
jection was made by the prisoner, or his counsel, before or
after the sentence was pronounced, to the mode by which he
* The book referred to, is, I suppose, “Macintosh's Travels in Europe,
Asia, and Africa;” 2 vols. 8vo., 1782; of which a French translation ap-
peared at Paris the same year, and a German translation at Leipsic in
1785.
ºf Mr. Barwell.
ON THE NU N COMAR CHARGE. 301
was to suffer death; no evidence was given of its being
shocking to the religious opinions of the Hindus; no mention
is made of it in the address of the Hindus.”
The articles alleged in the broadest manner, that
there was a conspiracy between him and Mr. Hastings,
in order to destroy so dangerous a witness as Nuncomar;
and inferences to support the assertion, were drawn
from these circumstances:—that the forgery had been
committed five years before Nuncomar was brought to
trial before the Supreme Court; that it had been, and
was at the time, the subject of a civil suit in the De-
wannee Adaulut, a country court; and, that no steps
had ever been taken to make it a matter of criminal
prosecution, much less of a capital indictment, until
Nuncomar had become the accuser of the Governor
General. General Clavering, Colonel Monson, and
Mr. Francis, had even deposed that, in the interval be-
tween the forgery and the trial, Nuncomar had been
protected and employed by Mr. Hastings; and this
deposition had been inserted in the report of a Com-
mittee of the House of Commons. Now, in defending
himself, Sir Elijah Impey not merely admitted, but
insisted upon, the fact asserted by Clavering, Monson,
and Francis; and he even cited the evidence of Mr.
Hastings himself, when examined upon oath, on the
trial of Joseph Fowke and others, for a conspiracy
against him. This course, if it proved that Nuncomar
could not have been tried for forgery before he was tried,
proved also, that the Governor General had, at least in this
case, put himself above the law for temporary political
purposes, proved that the guilty could not be pro-
secuted, previously to the arrival of the Supreme Court,
so long as Mr. Hastings extended his protection. Mr.
Hastings's evidence upon oath, which Sir Elijah read to
the House, contained, however, a denial of his ever
having, directly or indirectly, countenanced or forwarded
the prosecution against Nuncomar. When asked
whether he had not had connections with that Rajah,
he had said he certainly had ; that he had employed
him on many occasions; had patronized and counte-
manced him; though he never had any opinion of his
virtue or integrity, and believed the Rajah knew he
had not.
302 SIR ELIJAH's DEFENCE
“It was in evidence,” said Sir Elijah, “at the trial,
that Mr. Palk, judge of the adaulut, had confined him for
the forgery. It was notorious that Mr. Hastings had
ordered him to be released. This, of itself, was sufficient
to prevent any native inhabitant of Calcutta from commencing
a prosecution against him, for there was then no other criminal
court to resort to, but that in which Mr. Hastings presided.
It was in evidence also, that the prosecutor had it not in his
power to commence a criminal suit, even in the court in which
Mr. Hastings presided, or in any other court, before the time
at which the indictment was actually preferred ; for the
forged instrument was deposited in the Mayor's Court, and
could not be procured from thence. It was not restored to
the party entitled to it, till after the records and papers of the
Mayor's Court had been delivered over to the Supreme Court.
One main cause assigned for erecting the Supreme Court was,
that the Company’s servants either presided in, or could in-
fluence the other courts. . . . . The Supreme Court, the only
Court where Mr. Hastings's influence could not extend, sat,
for the first time, towards the end of October, 1774. . . . . .
In June, 1775, at the first effective court of oyer and
terminer, and gaol delivery, held by that Court, the indictment
was preferred and "tried. That the endeavouring to procure
the papers from the Mayor's Court was intended as “a step
taken” towards a criminal prosecution, before Nuncomar be-
came the accuser of Mr. Hastings, I have no evidence to prove;
but that no effectual steps could have been taken, I have
given satisfactory proof. As there had been no delay in the
prosecution, as the point of time when the prosecution was
brought was the first possible point of time when it could be
brought, no presumption whatsoever could arise from lapse of
time, or the coincidence of the prosecution of Mohunpersaud.”
with the accusation before the Council, or from the unavoid-
able accident of the prosecution not having been commenced
until he had become the accuser of Mr. Hastings. & © &
That the accusation was the cause of the prosecution of
Nuncomar by another person, that it had been the subject
of a civil suit in the Dewanmee Court,-there was no legal
evidence: the proceedings themselves, or authenticated copies,
ought to have been shown; parole testimony was not admis-
sible; it did not lie on the prosecutor to produce them. Had
they tended to the defence of the prisoner, he should have
produced them; his not doing it, at least induced a strong
suspicion that they would not have made for him. That sus-
picion was strengthened by the evidence given, that he had
* The prosecutor of Nuncomar.
ON THE NU N COMAR CHARGE. .303
been imprisoned by Mr. Palk, the judge of the court in which
the proceedings were supposed to have been had. The
matter, therefore, having been in a civil court, as he made it
no part of his defence, but chose to keep back the evidence,
furnishing a fair presumption against him, it could not, with
justice, have been applied by the Court, to fling an imputa-
tion on the prosecution; nor did it give any appearance that
the prosecution bore any relation to the accusation against
Mr. Hastings.”
All this may prove that the Supreme Court could not
have tried Nuncomar sooner than they did; but it may
not fully prove that the Governor General had not
chosen the moment for letting loose the proofs of Nunco-
mar's guilt. But, at the same time, there was nothing in
the circumstance of Nuncomar's being in the character
of an accuser of Hastings, that could stop proceedings
against himself upon a separate and unconnected
charge, brought forward by a different prosecutor,
with different witnesses, and with everything about it
different and distinct.
“The prosecutor,” said my father, “had a right to demand
redress; to have refused it, would have been a denial of
justice. Had I taken so decided a part as to have flung out
the indictment on the ground of the prisoner having been the
accuser of Mr. Hastings, how could I have justified the casting
that imputation on the prosecution, without any evidence being
laid before the Court that any accusation existed? Had there
been evidence of an accusation, with what justice to the com-
munity at large, could the Court have adjudged that to be a
sufficient cause for not putting the prisoner on his trial ' If
such indemnities were held forth to informers, what man
would have been safe in his property, liberty, fame, or life 7
What kind of informers were likely to be brought forward 7
Those who, by their crimes, were subjected to the laws, and
had been thereby taught that, by simply preferring accusa-
tions, they would be protected from the justice of the laws.”
After mentioning what was set forth in the charge—
as that Nuncomar had accused Mr. Hastings of various
peculations, and other corrupt practices, before the
Council at Calcutta, and that Mr. Hastings, instead of
confronting his accuser, thought proper, under pre-
tence of dignity, to decline all defence, and to dissolve
the said Council at various times—Sir Elijah asked
how this could affect him, as nothing of the sort had
304 SIR ELIJAH's DEFENCE
been before him and the Court when they were pro-
ceeding against Nuncomar ! He said that the cir-
cumstances were not only not in evidence, but were not
known to him and the other judges; that by rumour,
and by rumour only, it was known in Calcutta, that
Nuncomar had preferred some accusations against Mr.
Hastings, accusations, which, so far from being pub-
lic, were preferred to the Council in their private de-
partment, where each member was under an oath of
secrecy.
“If the prisoner Nuncomar was an object of the special
protection of the Court, from the circumstances in which he
stood as an accuser, that claim should have been laid before
the Court, in evidence, and formed part of the defence: they
were all matters capable of proof: they were proper subjects
to go to a jury. Why were they kept back 7 Why were not
the Court and jury acquainted therewith ? . . . . . .
If they could leave no doubt in the mind and opinion of
the jury, the jury could not have hesitated to acquit the
prisoner. If the judges must have been convinced, it would
have been their duty to have directed the acquittal. This
was the only mode by which protection could have been given
to Nuncomar : they were not thought sufficient to produce
that conviction when the transactions were recent; if they
had been, they would have formed a material part of the
defence. Why, then, is it averred they must produce such
conviction now, at the distance of thirteen years from these
transactions 7 °
It was inserted in the charge, and Sir Elijah allowed
it to be true, that Mr. Chambers had made a motion
from the bench for quashing the indictment; but the
Chief Justice urged, that this was done more in favorem
vitae, and from the natural lenity of Chambers's disposi-
tion, than from any sound reason in law. Sir Robert
Chambers had wished to try Nuncomar on a statute
that did not inflict capital punishment for forgery—the
5th of Elizabeth, thinking it optional in the Court to
adopt that statute, instead of the statute of George II.,
which made forgery capital.
“That it was optional in the Court,” said Sir Elijah, “to
choose the statute which it liked best, I thought impossible;
for I understood it to be an undoubted maxim in law, that,
whenever a statute constitutes that offence which was a mis-
demeanour to be a felony, the existence of the misdemeanour
ON TIT E N UN COMAR CHARC E. 305
is destroyed and annihilated; or, as lawyer's express it, the
misdemeanour is merged in the felony. The 2nd George II.
became the only law by which forgery was a crime; the Court,
therefore, must have proceeded on that statute, or not at all.
If forgery was not a capital offence in Calcutta, it was no of.
fence there. If the statute could not have been put in force, it
would have operated as a pardon for the offence, which the
legislature intended it to punish with more severity. This, as
most other arguments with which I have troubled the House,
were made use of by me in Court to support the indictment.
By these, I then understood that Sir Robert Chambers was
convinced ; he most certainly acquiesced; I never understood
him to have been overruled, and his subsequent conduct—
if any doubt could be entertained—proves most manifestly
that he was not : for he not only sat through the whole trial,
but concurred in overruling every objection in arrest of judg-
ment; assented to the summing up of the evidence; was
present, and concurred in the sentence.”
My father then read a paragraph of a letter written to
the Court of Directors, shortly after the trial, and signed
by Chaumbers, the two other judges, and himself, and in
which they all asserted that they had in every instance
been unanimous, whatever representation might be
made to the contrary. Sir Elijah Impey further
showed, that all the judges, Chambers included, signed
the calendars, which were the only warrants for execu-
tion in Calcutta. He showed, moreover, that Chambers,
on the same day, and only a few hours after the execu-
tion of Nuncomar, proposed carrying the consequences
of the conviction even beyond the execution; he read
a letter, in which Chambers suggested that the sheriff
should be immediately ordered to seal up, not only the
books and papers of the malefactor, but also his house
and goods; and that a commission should issue under
the seal of the Supreme Court, to inquire after his
effects at Moorshedabad, and elsewhere.” But on this
* Mr. Chambers said in this letter, “among his papers, it is said, there
will be found bonds from many persons, both black and white, against
whom I conceive that writs of scire facias should be directed by us, as
Supreme Coroners.”
Mr. Macaulay, in the Edinburgh Review and in his Essays, says, “The
Mussulman historian of those times assures us, that, in Nuncomar's house,
a casket was found, containing counterfeits of the seals of all the richest
men of the province.” I have never fallen in with any other authority for
this story, which, in itself, is by no means improbable.
|X
306 SIR ELIJAII's DEFENCE
occasion, the Chief Justice alleged, that, as the Charter
had not appointed any officer to secure escheats and
forfeitures, he did not consider it to be the duty of the
Court to act as escheater for the Crown ; and that,
therefore, he had declined giving any such orders. He
asked whether Sir Robert Chambers, after his public
concurrence, and his zeal to prosecute the effect of the
conviction, to its utmost consequence, could wish to be
defended by a denial of his approbation both of the
judgment and the execution ?
Sir Elijah had no recollection of any appeal; but he
had reason to believe, that a petition delivered by the
prisoner, desiring to be respited, and recommended to
his Majesty's mercy, had been, after a long lapse of
time, confounded with an appeal. If there had been
an appeal, it must remain on record, and be capable
of proof. He quoted the clause of the Charter res-
pecting appeals; by which clause, the Supreme Court
had full and absolute power to allow or deny appeals.
He next quoted the clause relating to respites; by
this last clause, the Supreme Court were empowered
“to reprieve or suspend execution of sentence, in cases
where there shall appear a proper occasion for mercy;”
but in such cases, they were demanded to transmit to
the Sovereign a state of the case, of the evidence, and of
their reasons for recommending the criminal to mercy.
Hereupon he argued, that neither the law nor the
Charter required the judges to assign reasons for
carrying the judgment into execution; that it was only
in case of not eacecuting it that they were bound to as-
sign their reasons. He maintained that there were no
reasons to be assigned for respiting Nuncomar.
“Could it,” said he, “ have been stated as reason to his
Majesty, that Nuncomar had preferred an accusation against
Mr. Hastings 7 Who was the accuser, and who the ac-
cused ? It was motorious to all India, that Nuncomar had
been the public accuser of Mohammed Reza Khan, without
effect, though supported by the power and influence of Go-
vernment. He had been convicted before the judges, of a
conspiracy to bring false accusations against another Mem-
ber of the Council. Against whom was the accusation 7
Not against Mr. Hastings, censured by this House; not
against Mr. Hastings, impeached by the House of Lords;
ON THE NU NCOM A R CHARGE. 3()7
not the Mr. Hastings for whom the scaffold is erected in
Westminster Hall; but that Mr. Hastings whom I had heard
the Prime Minister of England, in full Parliament, declare, to
consist of the only flesh and blood that had resisted tempta-
tion, in the infectious climate of India; that Mr. Hastings,
whom the King and Parliament of England had selected for
his exemplary integrity, and entrusted with the most im-
portant interest of this realm. Whatever ought to be my
opinion of Mr. Hastings now, I claim to be judged by the
opinion I ought to have had of him then. What evidence had
the judges that the accusation of Nuncomar was true? How
could they know they were screening a public offender in the
person of Mr. Hastings, so lately applauded, so lately rewarded,
by the whole nation ? Ought the judges to have taken so de-
cided 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? With what justice to Mr. Hastings could
this have been done? With what justice to the community ?
Who could have been safe, if mere accusation merited in-
demnity ?”
Sir Elijah insisted that neither he nor the other judges
had prejudiced Nuncomar, or acted unfairly towards
him or his witnesses; that, while there was no reason
that could justify the Court in recommending the
prisoner to mercy, there were many against it; that
the defence, in the opinion of both the judges and jury,
was a fabricated system of perjury; that the jury re-
quested that the prisoner's witnesses might be pro-
secuted; that, after the trial, it became matter of public
notoriety that the defence had been fabricated, and wit-
nesses procured to swear to it by an agent of the pri-
soner; and that one of the judges, Mr. Justice Le-
maistre, had declared, that a large sum of money had
been offered to him to procure a respite.
In the next place, my father alluded to the attentions
and honours paid to Nuncomar while in prison, by
General Clavering, Colonel Monson, and Mr. Francis;
stating, that the secretaries and aides-de-camp of those
Members of Council, visited him after his commitment
for the felony, and that the ladies of the families of
General Clavering, and Colonel Monson, were in the
habit of sending their compliments to him in the prison.
He affirmed, what already had been affirmed upon oath
in another place, that Nuncomar, cheered by these
x 2
308 sIR ELIJAH's DEFENCE
flattering attentions—very unusual in such a case—
conceived hopes of being released, through the influence
of General Clavering and Colonel Monson, even to the
day before his execution, when he wrote a letter to the
Council for that purpose. After reading the affidavit
of Yeandle, the jailer, he read two other affidavits made
at the time, by two gentlemen at Calcutta, who were
connected with the native inhabitants, and who swore
that it was an opinion prevalent among them, that the
Rajah would be released by General Clavering, or the
Council. One of these affidavits was that of Mr.
Alexander Elliot, a younger brother of Sir Gilbert
Elliot, the present accuser of Sir Elijah Impey. Mr.
Alexander Elliot, who held at the time a civil office at
Calcutta, had been conversant with the whole business,
and had even interpreted at the trial of Nuncomar.
He left India not long after to return to England; and
was then intrusted with a discretionary power from the
Chief Justice, and his brother judges, to publish the
trial if he thought it necessary : it being known to
them that very unfavourable representations were
current in England.
“He,” said my father, “had collated the notes, and had
undertaken to bear testimony to the authenticity of them;
he had served voluntarily as interpreter through the whole
trial. He pointed out the prevarications of the witnesses;
he could have verified the marration from his own me-
mory; and, what is material to this point, he could have
spoken as an eye-witness to my particular conduct at the
trial. He lived in that intimacy with me, that I may
almost say he made part of my family; and as no secret of
my heart was unrevealed to him, he could have given the
fullest and most unequivocal account of my sentiments with
regard to carrying the sentence into execution. The calum-
nies propagated from Calcutta, by minutes of Council,
secret there, but published, and meant to be published, in
England, made him use the discretion intrusted to him to
refute them. He printed the trial; his testimony could have
supported the truth of it; if it could not, no consideration
would have prevailed on him to have published a trial with
such gross misrepresentations; and, by undertaking the win-
dication of the judges, to have been instrumental in deceiving
the King, his Ministers, and the public, in the most aban-
doned manner. He is unfortunately no more. But, though
ON THE NU N COMAR CIHARGE. 309
I am deprived of his living testimony, yet his acts and his
character still bear evidence for me.”
Sir Elijah then read a letter from another gentleman,
eminent in the civil service in India, to show the sense
entertained of Alexander Elliot's excellent qualities, and
the impression made by his premature death; and he
otherwise dwelt on the subject in a manner to em-
barrass Sir Gilbert Elliot, the brother of the deceased.
“Inventive malice,” said my father, “can do no injury to
his memory, except the prosecutor, by maintaining the foul
motives charged on me, should, by necessary consequence, fix
them on him, and thereby blast his fair fame with unmerited
infamy, for the zealous part he took in the investigation of
truth.”
In his correspondence with the Secretary of State,
Sir Elijah had referred to Mr. Elliot, and to the papers
of which he was the bearer, for the proofs that nothing
relating to the trial was intended to be hid from the
English nation. In the same letter to the Secretary of
State, a copy of which he read at the bar, he affirmed
that, on a detection of gross practices on the part of
the prisoner to suborn witnesses, made before Mr.
Justice Lemaistre, and Mr. Justice Hyde, a band of
witnesses sent down from Burdwan to give evidence at
his trial, immediately disappeared ; and, that it would
be seen, on perusal of the trial, that the guilt of the
prisoner was proved as strongly from the case he at-
tempted to make out, as from the evidence on the side
of the prosecution.
Sir Elijah likewise read a letter addressed to himself
by Mr. Alexander Elliot, in which that gentleman spoke
of the disputes, misrepresentations, and falsehoods, of
the majority of the Supreme Council, and pledged him-
self to be warm in defending the judges. In this letter,
Mr. Elliot said, that no expressions could be harsher
than what the Council deserved,—meaning hereby,
Clavering, Monson, and Francis.
Sir Elijah complained that there had never been an
instance of so extraordinary a charge against any judge
in England, even on a recent cause; and that his own
case was the more perilous and extraordinary, in his
being accused on account of acts done thirteen years
before the time at which, and in a country sixteen thou-
310 SIR ELIJAH's DEFENCE
sand miles from the place in which he was now called
upon to answer for them ; and that not only without
receiving any notice of the charge, but after having
been misled into a security that no such charge would
ever be made against him. He reminded the House
that his prosecutor, Sir Gilbert Elliot, had not even
asserted that he could produce any evidence to show an
illegal communication between him and Mr. Hastings,
or his partisans; that he was without evidence even
that Mr. Hastings, or his partisans, were in any league
or combination against the prisoner; that they had any
communication with the prosecutor, or were in any
manner instrumental or privy to the prosecution. He
said that Mr. Hastings had been purged on oath on
that subject; that the only proof assumed, was an in-
ference drawn from the single circumstance that Nun-
comar was not capitally indicted till after he had ac-
cused Mr. Hastings—a circumstance which had been
satisfactorily accounted for; and he insisted that,
though the fact had been for eleven years the subject
of parliamentary investigation, and Mr. Hastings's con-
duct had been most critically scrutinized, nothing had
been, or possibly could be brought to light to prove any
combination against Nuncomar.
“From this sole circumstance,” continued Sir Elijah,
“standing as it does, it is asserted, that such a notoriety has
arisen, as to produce an universal necessary conviction that
the whole proceedings were for the purpose of screening Mr.
Hastings from justice.
“That no such universal conviction did ever actually exist,
I have the most infallible proofs; or, if it did exist, that the
whole body of Armenian and Hindu inhabitants of Calcutta,
that all the free merchants, all the grand jury, all the petit
jury, Sir Robert Chambers and all the judges, the Governor
General and all the Council, must have been united in the
same horrid combination. For I have in my hand, the ad-
dresses of all the Armenians, of all the Hindus, of all the free
merchants, and of the grand jury, which authorised part, and
heard all our proceedings, when those proceedings were
recent.”
Sir Elijah insisted that these Calcutta addresses had
proceeded spontaneously from the good opinion of those
who drew them up and signed them. He said,—
5
ON THE NU N COMAIR CHARGE. 3.11
“To the addresses I know objections have been made, and
perhaps will be revived, that they were procured by power
and influence. How such power or influence could be derived
from the Court, cannot, I believe, be easily accounted for. In
whom the power and influence of Government was then
vested, every act of power and every record of the Com-
pany have fully published. The Company’s servants, on
whom such power and influence must act most imme-
diately and forcibly, formed the only body that did not
join in the addresses. And that the gentleman” whose
name stood first on the address of the free merchants, who
had been president of the settlement, and then enjoyed the
office of Superintendent of the Police, for which a knowledge
of the manners and habits of the country was particularly
necessary, and for which his long residence in the country
had pecularly qualified him, was, immediately after pre-
senting the address, without any fault objected to him, dis-
charged from his office, and his place supplied by a gentleman
who had not been many months in the settlement, is a fact
which will not be controverted. My portraits now hanging,
the one in the Town Hall, the other in the Court House—
the one put up soon after this trial, the other on my leaving
the settlement—if this notoriety be true, are libels against
the inhabitants, the settlement, the judges, advocates, attor-
meys, and officers of the Court, who subscribed no small sum
for the preserving my memory amongst them.”
If the existence of a plot or combination against
Nuncomar had been notorious, as described in Sir Gil-
bert Elliot's charge, how was the conduct of numerous
and respectable classes of men to be accounted for ?
Was it a universal conspiracy in favour of the Governor
General 2 Was there no man left in all Calcutta with
conscience and courage enough to interpose, in order to
prevent this alleged legal murder?
“The alleged motoriety,” said Sir Elijah, “could not have
had any operation on the minds of the grand jury who found
the bill, nor of the petit jury who convicted him ; nor of Sir
Robert Chambers, and the other judges, who sat through the
trial, agreeing and assenting to all the acts of the Court; who
* Mr. Playdell. He had been formerly President of the Council.
Every man who knew him in India, must bear his testimony to the
respectability of his character, and the peculiar propriety with which he
conducted that office.
† The gentleman thus thrust into the office of Superintendent of the
Police, was Mr. Macrabie, brother-in-law to Mr. Francis.
3 || 2 SIR ELIJAH's DEFENCE
concurred in giving sentence, in disallowing the appeal (if
any there was), in refusing the respite, signing the calendar,
and carrying the sentence into execution. Had my conduct
been profligate, as it is stated to have been, should not the
other judges, instead of concurring, have opposed me in every
step 7 If Sir Robert Chambers had really, as is asserted,
thought the proceedings illegal, if this notoriety had produced
this conviction in him, if he deemed my conduct iniquitous,
was not he particularly bound to have taken an active part 7
Should he not have given a counter charge to the jury 7
Should he mot, by exposing my corruption, and detecting my
partiality, have held me up—if I had not sufficiently done it
myself—to the detestation of the jury and the whole settle-
ment 7 This has, under similar circumstances, been done by
honest puisne judges in England; could passiveness and si-
lence in such a case be reconciled to honour and conscience?
That this notoriety did not influence the Governor General
and Council, or that which is called the majority of the
Council, I am able to give still more convincing proofs from
their direct unequivocal official public acts; and by those acts
I desire it may be determined whether their opinions are in
support of, or in opposition to, the prosecution on this
article.”
My father then related one of the most startling cir-
cumstances in the whole affair. On the 30th of August,
1775, several days after the execution of Nuncomar,
the Governor General and Council ordered a paper to
be burned by the hands of the common hangman, as
containing libellous matter against the judges. The
paper was a petition or representation from Nuncomar
to the Council; but its contents were not published.
The judges knew that both this paper, and the pro-
ceedings on it, ought to be transmitted to the Directors,
and the King's Ministers; and, that the paper, though
kept secret in Calcutta, would be made known in
England. They therefore applied for a copy of the
libel: this reasonable request was refused by the Coun-
cil; but Sir Elijah Impey had at last, and by other
means, obtained a copy of the libel, and of the proceed-
ings of the Council upon it; and these he now read
to the Commons.
He informed the House, that, on the 14th day of
August, just nine days after Nuncomar had been
hanged, General Clavering told the Council that, on
ON THE NU NCOMAIR CHARGE. 313
the 4th of that month, the day before the execution of
the Rajah, a person, calling himself the servant of
Nuncomar, came to his house, and sent in an open
paper. In presenting the paper for a respite nine days
after death, Clavering said, -
“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 application whatever in his favour,
I left the paper on my table until the 6th, which was the day
after his execution, when I ordered it to be translated by my
interpreter. As it appears to me that this paper contains
several circumstances which it may be proper for the Court of
Directors, and his Majesty’s Ministers to be acquainted with,
I have brought it with me here, and desire that the Board
will instruct me what I have to do with it; the title of it is,
“A representation from Maharajah Nuncomar to the General
and Gentlemen of Council.’”
Mr. Francis thought the paper ought to be received
and read. Mr. Barwell, who also voted with Mr.
Hastings, could not understand by what authority
General Clavering thought he might, at his own plea-
sure, keep back, or bring before the Board, a paper
addressed to them ; or how the address came to be
translated for the particular information of the General,
before it was presented to the Council.
“If the General,” said he, “thinks himself authorised to
suppress a paper addressed to the Gentlemen of Council,
he is the only judge of that authority; for my part, I
confess myself to be equally astonished at the mysterious air
with which this paper is brought before us, and the manner
in which it came to the General’s possession; as likewise, at
the particular explanation of every part of it before it was
brought to the Board.”
The astonishment expressed by Mr. Barwell must be
felt by every one that reads these strange transactions;
nor will it be diminished, by the explanation given by
Clavering. The General said, in reply to Mr. Barwell,
that until he had put the paper into the hands of his
translator, he could not know what it meant; that the
first day the Council met after knowing its contents—
that is to say, after Nuncomar had been hanged—he
brought the paper to the Board, but, the Board not
having gone that day into the secret department, he did
314 SIR ELIJAH's DEFENCE
not think it proper, at that time, to introduce it.
Colonel Monson thought that the paper ought now to
be received and read. Mr. Hastings said,
“I do not understand this mystery. If there can be a
doubt whether the paper be not already before the Board, by
the terms of the General’s first minute upon it, I do myself
insist that it be produced, if it be only to give me an
opportunity of knowing the contents of an address to the
Superior Council of India, excluding the first Member in the
title of it, and conferring that title on General Clavering;
and I give it as my opinion, that it ought to be produced.”
General Clavering replied, that the address did not
bear the meaning which Mr. Hastings gave it; and
that, at all events, he was no more answerable for the
title of the paper, than he was for its contents.
It was then resolved, that the paper should be re-
ceived and read. Mr. Hastings then moved that, as
the petition contained expressions reflecting upon the
characters of the Chief Justice and judges, a copy of it
should be sent to them.
Mr. Francis objected that to send any such copy
would be giving the thing more weight than it deserved.
“I consider,” said he, “the insinuations contained in it
against them as wholly unsupported, and of a libellous nature;
and, if I am not irregular in this place, I would move that
orders should be given to the sheriff, to cause the original to
be burned publicly, by the hands of the common hangman.”
Mr. Barwell had no objection to the paper being
burned by the hangman; but, he agreed with the Go-
vernor General, in thinking that a copy ought to be
delivered to the judges. Colonel Monson, on the
contrary, apprehended that the Board, by com-
municating the thing to the judges, might make
themselves liable to a prosecution for a libel. He
added:—
“The paper I deem to have a libellous tendency, and
the assertions contained in it are unsupported. I agree with
Mr. Francis in opinion, that the paper should be burned
under the inspection of the sheriff, by the hands of the
common hangman.”
General Clavering also agreed with Francis, that the
paper ought to burned at once, without saying any-
() N THE NU N COMI AR CHARGE. 315
thing to the judges about it. Mr. Hastings, on the
other hand, urged, that the people of Calcutta formed
but a very small part of that collective body
commonly called the world.
“The petition itself,” said he, “stands upon our records,
through which it will find its way to the Court of Directors,
to his Majesty's ministers, and, in all probability, will become
public to the whole people of Britain.”
Mr. Francis begged leave to observe, that, by the
same channel through which the Directors, Ministers,
and British public might be informed of the contents of
the paper, they would also be informed of the reception
it had met with, and the sentence passed upon it by the
Board.
“I therefore hope,” said he, “by its being destroyed in
the manner proposed, will be sufficient to clear the character 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 judges from extending beyond this Board, I
move that the entry of the address from Rajah Nuncomar,
entered on our proceedings on Monday last, be expunged.”
The will of the majority was acted upon; the entry
was expunged; the translation was destroyed, and the
original, without any copy being sent to the judges, was
publicly burned with all due solemnity, not by the
common hangman, for there was none in Calcutta, but
by the common gaoler. After reading all these minutes,
Sir Elijah Impey said, that notwithstanding the anxiety
of Mr. Francis that every memorial of Nuncomar's pe-
tition or representation should be destroyed, he pos-
sessed an authentic copy of it, with the translation,
corrected by Mr. Hastings, who had given him the
copy.
“Mr. Hastings,” continued my father, “thought it no
more than common justice to the judges to give it to me, and
as it was in the secret department of government, he delivered
it to me under an oath of secrecy, not to disclose it in India
except to the judges; except to them it has not been disclosed
to this day, when it is called forth by necessity for my
defence.”
At the desire of the House, Sir Elijah Impey after-
wards delivered in a fac-simile copy of the original
316 SIR ELIJAH's DEFENCE
translation of the paper, with Hastings's interlineary
corrections. The paper after enumerating the rank,
honours, and high employment of Nuncomar, said,
that many English gentlemen had become his ene-
mies, and having no other means of concealing their
own actions, revived an old affair which had repeatedly
been found to be false; that the prosecutor was a
notorious liar, and had been treated as such by the
Governor General, who had turned him out of his
house; that the English gentlemen had become the
aiders and abettors of this notorious liar, and that
Lord Impey and the other justices had tried and con-
demned the writer, Nuncomar, by the English laws,
which were contrary to the customs of the country, &c.
Sir Elijah argued, that General Clavering's sense of
the propriety of allowing no respite, must appear from
the whole of his conduct, and from the mode in which
he treated that paper after he received it. He also cited
Clavering's testimony upon oath; by which, it appeared,
he did not consider that the prosecution of Mr. Hast-
ings at all depended on the evidence of Nuncomar.
If General Clavering thought there were circum-
stances in the case which ought to render Nuncomar a
proper object for mercy, could he have defeated the
petition of the unhappy convict, by detaining his paper
until it could be of no possible use to him 2 That paper
was no private address to the General, but an address
to the Board at large, whose sense he would not suffer
to be taken on the propriety of recommending him to
mercy, as he never produced the paper until nine days
after the execution | If the paper was unsupported
then, what new matter had arisen to support it now ! If
it was not good to obtain mercy for Nuncomar, how
could it be good to bring down impeachment and
punishment upon Sir Elijah Impey 7. What could
make that a just accusation now, which was held to be
false and libellous then 2
Towards the close of his speech, Sir Elijah Impey
thus pointedly reflected upon Francis :—
“That the paper itself should have survived, is hardly
more providential for me, than that the gentleman who
moved for the condemnation of it, and who expressed his
hopes that it would prevent any possibility of the imputations
ON THE NUN COMAR CHARGE. 317
indirectly thrown out against the judges, from eatending be-
gond that Board, is the surviving member of that ma-
jority. From him, who, to prevent its extending beyond
that Board, had, with so much solicitude, procured the paper
to be expunged from the proceedings, I hope I may be
thought to have some claim to expect that these imputations
will not be encouraged in England; should, nevertheless,
such imputations have been suggested by any Member or
Members of the Council—and I am sorry to say that their
secret minutes show that there have—I am in the judgment
of the House, whether it would not be a precedent of dan-
gerous tendency to admit secret communications and private
informations, in evidence, from any persons whomsoever, to
disavow and contradict their own solemn official unanimous
acts, entered upon public records,-on records required by
Act of Parliament to be transmitted to his Majesty’s ministers,
as authentic information, both of their acts, and their reasons
for their acts.”
Sir Elijah then said, that, as he had been charged
as an individual, so he had defended himself as an
individual.
“But,” added he, “though called to answer as for acts
done by me singly, those acts not only were not, but could not
have been, done by me individually; I was one member sitting
in a Court consisting of four members; all the four members
concurred in the acts imputed to me; my voice singly and by
itself could have had no operation ; I might have been over-
ruled by a majority of three to one. I was not more concerned
in the proceedings than any other judge; I was less so than two.*
Informations had been laid against the criminal before two
of the judges [Lemaistre and Hyde], who, by committing
him for felony, had applied this law to his case, without my
knowledge or privity. I was, indeed, applied to by the Coun-
cil, as to the mode of his confinement; I had no right to
revise the acts of the judges ; their authority was equal to
mine; I did what humanity required; I made the strictest
inquiries of the pundits, as to the effect of his imprisonment
on his caste and religion; I learned they could not be hurt.
I gave directions to the sheriff that he should have the best
accommodations the gaol would afford; the jailer and his
family quitted their apartments, and gave them up to him;
I directed that every indulgence, consistent with his safe
custody, should be granted him. These only, were my in-
dividual acts, and these appear on the report of your Com-
* Mr. Justice Lemaistre and Mr. Justice Hyde.
3.18 sIR ELIJAH's DEFENCE
mittee. If it had been just so to do, it was not I, but the
Court, which must have afforded protection to the crimi-
mal because the accuser of Mr. Hastings; it was not I,
but the Court, that must have quashed that indictment ; it
was not I, but the Court, which retained the prosecution ;
had Sir Robert Chambers been overruled, it was not I, but
the Court, that could have overruled him; it was not I, but
the whole Court that rejected the appeal—if there was an
appeal—that refused the respite, and carried the sentence
into eaecution. ALL signed the calendar ; I executed no act
of authority as a magistrate, but sitting in open Court, as-
sisted by all the judges; even those acts which are pecu-
liarly objected to me, as mine individually, though I was the
proper channel of the Court to pronounce them, are not my in-
dividual acts; as Chief Justice, I presided in the Court, -was
the mouth of the Court; all questions put, or observations
made by me, were with the judges sitting on my right hand,
and on my left ; those questions and those observations were
not mine, but the questions and observations of the Court.
I did not presume to make observations in my summing up to
the jury, without having first communicated with the judges,
and taken their unanimous opinion, on every article. º
As no act is imputable solely to me, so there is no motive, in
the whole charge, assigned for my conduct, that is not equally
applicable to every other judge; nor is there one allegation that
exonerates the other judges, and applies them specifically to
me: if they are true with regard to me, they are true as ap-
plied to every judge of the Court. The notoriety of the in-
justice of the proceedings applies to all, and gives an equal
ground of conviction, that all the judges were in a combination
to sacrifice an innocent man, for the purpose of screening Mr.
Hastings from justice ; ALL must have shown an equally de-
termined purpose against the life of the criminal ; ALL had
equal knowledge of the accusation, the proceedings in Council,
and the conduct of Mr. Hastings; ALL knew equally the credit
of the witnesses, and the infamy of the un-named witness.
There is no stage of the business where they are not all as
much implicated in the motives as I could be; yet I alone
am called to answer, whilst they, if this charge be true, are
administering justice in Bengal, notoriously branded with
ânfamy, and still judging on the lives of men, with hands
stained with blood / Though I say this as necessary to my
defence, I most solemnly protest, and most anxiously request,
that it may clearly be understood, that I do not entertain the
most distant wish that any judge of the Supreme Court should
meet with the same fate which I have experienced, after long
and faithful services in so inhospitable a climate, in their de-
ON THIS NUNCOMAR CHARGE. 319
cline of life, and be dragged from their tribunals, to appear as
criminals at this bar. Respect for their character, and friend-
ship for their persons, whom in my conscience I know not to
deserve so harsh a treatment, would reprobate so unjust and
so malignant a wish. But I may, without prejudice to them,
deplore, that though aided by their reasons for concurring in
the proceedings of the Court, thus separated from them, and
called upon, as I am, I cannot be armed by their reasons in my
defence. Though my arguments feebly enforced may fail of
success, yet if urged more forcibly by them, and with such
addition of others, as their learning and ability might supply,
they might operate to conviction on the minds of my judges ;
and should I be so unfortunate as to be thought impeachable
for these Joint Acts, they, on better reasons showm, may be
exculpated. Had they been joined with me, I should have had
a right to avail myself of their reasons as well as my own. It
is hardly conceivable that any man, whose constant habits of
life have been known to be such as mine have been—and there
are not wanting members in this House who know both how
and with whom the earlier part of my life, down to the time I
quitted this country, had been spent—that I, a man, I will
assume to say, who left this country with a character at least
unimpeachable, who maintained that character till May, 1775,
should, in the course of the next month, have been so totally
lost to every principle of justice, every duty of office, every sense
of shame, every feeling of humanity, to have been so deeply
immersed, and hardened in iniquity, as to be able deliberately
to plan, and steadily to perpetrate murder, with all the cir-
cumstances with which it is here charged and aggravated.
Nemo repente ſuit turpissimus. But if the minds of men, be-
sieged by constant repetitions of the same slander, laboured
into them daily and hourly, by perpetual and unremitting
libels, assailed by base whispers in private, and the malicious
clamours of faction in public, can, with regard to me, an indi-
vidual, have been prepared to admit the belief of a fact so
strange and so unnatural; yet had four judges been now ranged
at this bar, all men of unimpeachable characters, down to the
same period of time, all charged with the same sudden loss of
virtue, and violent precipitation into the most abandoned guilt,
all charged with the same deliberate purpose, the same steady,
cool, unrelenting execution of so foul a crime ; it would have
struck the eyes, as well as the reason of the House ; common
sense would have revolted at it; it must have been pronounced
impossible! After what I have disclosed to the House, I trust
in my single case also it will be pronounced impossible. I
have been too long—I have had great indulgence—I fear I
have abused it too much—I will make no recapitulation : but,
320 SIR ELIJA II's DEFENCE
if the Judgment was legal, if no justifiable grounds could be
assigned either of grievance to allow an appeal, or of favour
to recommend to mercy; if the matters of the reports do not
supply competent evidence to support the article ; if the
public opinion formed on libels, and misled by false autho-
rities, is no ground for impeachment; if the opinions of the
Court of Directors, and the majority of the Council in Bengal
fairly discussed, operate not in support, but to the defeat of
this accusation ; if I am accused of no act, but what was a
judicial joint act of the whole Court consisting of four judges;
if no act is charged on me but what is equally chargeable
on the other three judges ; if no motive is imputed to me
but what is equally imputable to all the judges; if the whole
was in the ordinary course of justice, and there be, after
every scrutiny, no evidence of any undue motives ; I now,
Sir, finally submit, with perfect resignation to the judg-
ment of the House, whether, at the distance of thirteen
years, during nine of which, after the commission of the sup-
posed offence, I have been permitted to preside in the Supreme
Court, when by lapse of time, I must necessarily have been
deprived of material living evidence, and by just inference,
from the having been called to answer a specific charge of a
less heinous nature, for a fact subsequent to this by seven
years, I have been prevented from bringing evidence from
Bengal, under all the circumstances with which I have
fatigued the House, it be consistent with its candour, wisdom,
and justice, to put me alone at the bar of the House of Lords,
to answer criminally for the JUDICIAL ACTS OF AN UNANI-
MoUs cou RT.”
This, my father's triumphant defence, together with
the vouchers produced to support every part of it, occu-
pied two days in the delivery. It produced a deep
impression on all who heard it. Mr. Pitt, the Premier,
affirmed that, if he had been placed in the same situa-
tion, he could not say but that he should have acted
precisely as Sir Elijah Impey had done. Other men,
less cautious than the Prime Minister, expressed their
indignation that a charge at once so atrocious and so
absurd, should ever have been brought against a man
of established character, a man of honour and feeling,
—against an upright and enlightened British judge.
It was quite clear, from the effect produced by this oral
defence alone, that the prosecution of my father would
speedily be dropped. His enemies could not but feel
that they had miscalculated his strength ; nor could
ON THE NU N COMAR CHARGE. 321
Sir Gilbert Elliot, the leader of the attack, defend him-
self from the humiliating conviction, that he had been
frustrated and exposed, and placed in a position which
no man laying claim to the charities of our nature, to
fraternal affection, and gratitude for family services and
friendship, would willingly occupy.
Sir Elijah had delivered his defence as an extempore
speech; not reading it from a prepared and corrected
manuscript as Mr. Hastings—who was no orator—had
done : accordingly, when asked whether he would
leave the House a copy of it, he said he could not, as
he had not written it out, and had spoken hurriedly
and under great agitation of feeling. Neither by law,
nor by usage, was my father bound to act, in this par-
ticular, otherwise than he did. Precedent was rather
in favour of his oral speech than of Hastings's written
defence; and, even if he had committed his speech to
writing—which he had not—he was free to give in or to
withhold his manuscript, or any copy of it;* yet, both
Fox and Burke angrily expressed their regret that the
charges upon the table of the House had not been met
by a written defence, which might remain in the hands
of the House, and so save it much trouble and incon-
venience.
But, very shortly after, my father's defence was given
to the world. It was printed from very accurate short-
hand notes, which were taken by a competent person
while it was being delivered at the Commons’ bar.
With the very copious appendix of documents and
vouchers—for the most part taken upon oath—it fills
an octavo volume of 423 pages. It was published
by John Stockdale, Piccadilly, and bears the date of
1788, in the month of February of which year the
defence was spoken at the bar. Either a small
edition was published, or care was taken by the ca-
lumniators of Sir Elijah Impey, to buy it up and destroy
the copies. It is now among the rarest of books; ex-
cept the copy from which I have made the copious
extracts contained in this chapter, and here and there
another in the possession of one or more of my imme-
* For some of Sir Elijah's own reasoning on this point, see extracts
from his own pamphlet, in reply to Francis, in the ensuing Chapter of
this volume. .
Y
322 sIR ELIJAH's DEFENCE, ETC.
diate relatives and friends, I know not of a single im-
pression extant; there is no copy in our national
library, where nearly everything which appeared on the
other side is to be found; there is no copy in the library
of the East India House; there is no copy in any place
where I have sought for it; and the many and long-
continued searches made by myself, and, for me, by my
friends, among book-stalls and dealers in old books,
have all been fruitless. The much-prized copy I pos-
sess, will soon be lodged in the library of the British
Museum, together with other materials which may, in
future, enable the candid and industrious inquirer to
form juster notions of the character of Sir Elijah Impey,
and of an important part of the history of our Indian
Empire, than have hitherto been conveyed by professed
historians of India, compilers, and essayists. I have
only to regret that, through circumstances which oc-
curred in my early years, and over which I could
exercise no control, my collection of MS. letters is not
so full and complete as it might easily have been, and
as, in fact, it was, a short time before the death of my
beloved and venerated father. Still, however, the col-
lection is of value. There will be found in it many in-
teresting and highly characteristic letters of the great
Hastings, which his biographer, Mr. Gleig, was com-
pelled, by his limits, to omit.
I have repeatedly called Sir Elijah's speech before
the Commons a “triumphant defence.” Every atten-
tive reader of common feeling and impartiality, will bear
me out, and justify me in this expression,--
“X&guo. 3'oùx &AAérgiov vi-
xcºpogic, rarégo.”
º C H A P T E R XIV.
REPLY OF SIR ELIJAH IMPEY TO A PAMPHLET BY MIR.
FRANCIS. -
SIR ELIJAH's persecutors were greatly embarrassed and
irritated by his manly and convincing defence before the
Commons, and by the very visible impression it made
upon the House. Francis felt his character so seriously
implicated by the revelations made by my father, with
regard to that mysterious business, the suppressing, and
then burning the Nuncomar petition, that he could not
but attempt a reply. This he did with his customary
vehemence and cunning—for Philip Francis, like some
other men, could be cunning and vehement in the
same breath—from his place in the House, on the 27th
of February, 1788, or twenty-three days after Sir Elijah
had spoken his defence at the bar. And, not resting
satisfied with his speech in Parliament, and such
abridged report of it as appeared in the newspapers, he
published his oration as a separate pamphlet. To that
production my father considered himself bound to reply.
His “ Refutation” is now before me; and this brochure, of
only 54 pages,” and his defence at the bar of the House,
* The full title of the pamphlet is, “A Refutation of a Pamphlet,
entitled, The Answer of Philip Francis, Esq., to the Charges exhibited
against him, General Clavering, and Colonel Monson, by Sir Elijah Impey,
Knt., when at the bar of the House of Commons, on his Defence to the
Nuncomar Charge. To which is added a fac-simile Copy of the Petition
of Nuncomar, burnt as a libel by the hands of the common hangman, in
consequence of a motion of Mr. Francis; with the proceedings relative to
it in Council, at Calcutta.” London: John Stockdale, 1788.
Y 2
324 SIR ELIJAH IMPEY'S REPLY
are the only things Sir Elijah ever published on his own
hard case. The pamphlet, like the volume, is exceed-
ingly rare : there has hitherto been no copy of it in our
National Library, at the British Museum, where may
be found nearly every pamphlet which proceeded from
the other side, or assailed the reputation of Sir Elijah
Impey or Mr. Hastings. When my present task is
over, the pamphlet will be deposited in the Museum
with the volume, and such of my family manuscripts
as bear upon the question.
When taxed with publishing the pamphlet contain-
ing his speech of the 27th of February, Francis denied
the fact. This was not forgotten by Sir Elijah in his
“Refutation,” which began thus:—
“To make any publication pending judicial proceedings,
that may influence the minds of those who are to decide on
them, or of the community at large, be it favourable or adverse
to the party accused, is certainly censurable; but in a higher
degree, when calculated to prejudice the person under accu-
sation. It was hoped that a stop would have been put to
such outrages on justice by the public prosecution ordered by
the House of Commons; yet a pamphlet has since appeared of
the same nature, calling itself a Speech of Mr. Francis, deli-
vered on the 27th of February, 1788. From the solemnity
of the introduction, the public would be induced to believe it
to be genuine, but it is well known that gentleman has dis-
avowed it. Had he mot, the futility of the reasoning, the
falsehood of the assertions, and its not fulfilling the promise
of ‘disclosing such scenes of iniquity as would astonish and
shock the House,” to which Mr. Francis had ‘most solemnly
pledged’ himself, give it internal marks of spuriousness,
which prove it had no right to boast of being his legitimate
offspring; but as the production, frivolous as it is, does not
want malice, it is due to justice to detect its falsity for the
purpose of obviating its effects.
“It calls that part of Sir Elijah Impey's speech, which is
supposed to have given offence, a charge brought against Ge-
neral Clavering, Colonel Monson, and Mr. Francis ; and
then proceeds to state what that charge was—laying the fault
on Sir Elijah Impey, in not having reduced his speech to
writing, if it is not stated fairly. In one particular, it is not
only stated unfairly, but falsely : he did not mention the
secret minutes of the Council, which were in contradiction to
their public acts, as being made before and after the execu-
tion of Nuncomar; in fact, none existed before. The fair
To FRANCIS's PAMPHLET. 325
way of stating the case, would have been, to have given the
proceedings in Council, on the the 14th and 16th of August,
1775, at large, together with the paper which was the subject
of them; and then, the minutes which were asserted to be
contradictory to the public acts, being thus confronted with
them, every reader might, on inspection, determine, whether
such contradictions did exist, without attending to arguments
necessarily perplexing, when the materials, on which they are
grounded, are withheld.”
Thus, as the reader will observe, not only the recent
defamers of Sir Elijah Impey, but the very men who
brought the original accusations against him, dealt in
the suppressio veri, in the withholding of materials, in
the contempt of evidence, and in the ingenuity which
perplexes, and the rhetoric which dazzles the unin-
formed mind. But my father, after the words last
quoted, says, “here are those proceedings; ” and he
goes on to give, in his “Refutation,” those “Extracts
of Bengal Secret Consultations,” of the 14th and 16th
of August, 1775, which I have already quoted,” and
which fully prove the manner in which Francis, Cla-
vering, and Monson, dealt with Nuncomar's petition,
after the execution of the Rajah. After these Extracts,
which Francis would fain have buried—
“Deeper than did ever plummet sound,”
Sir Elijah gave a fac-simileſ copy of the paper which
had been the subject of those proceedings in Council,-
namely, the Nuncomar petition,-and extracted, from a
very accurate report of his own speech at the bar of the
Commons, taken in short-hand at the time it was
delivered, the reflections he had really made on the
conduct and motives of General Clavering, in with-
holding the petition until the Rajah was hanged, in
declaring it to be a libel, &c.f. These quotations from
his speech at the bar, were followed up by extracts or
copies of the secret minutes—complained of, and as-
serted to be contradictory to those proceedings—of the
21st March, 24th April, 15th September, 21st Novem-
* See ante, p. 94–98.
+ For copies of this fac-simile, see the “Speech of Sir Elijah Impey,”
&c. &c., printed for J. Stockdale, Appendix, p. 158–161; the “Refuta-
tion,” p. 11–14; and the Appendix to the present volume.
† Sce the preceding chapter, p. 316.
326 sIR ELIJAH IMPEY'S REPLY
ber, 1775, and 21st March, 1776. Some of these
minutes I have given in a previous part of this volume.
Francis, in his speech of the 27th of February, and
in the pamphlet to which my father replied, said,
among other reasons why Nuncomar's petition was
treated as a libel, and burned,—
“It included all the judges; concerning two of whom—
Mr. Justice Hyde, and Sir Robert Chambers—they * never
had any suspicion of corrupt motives, and concerning another
of whom—Mr. Justice Lemaistre—they had then mo ground
of suspicion, except his intimacy with Sir Elijah Impey, his
acting on all occasions as his instrument, and the notorious
violence of his deportment; they, therefore, treated it [the
petition] as a libel against a whole Court of Justice ought to
be treated.”
To this my father rejoined,—
“It 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 im-
puted. Every publication, therefore, which attributes the
guilt to them collectively, and not to Sir Elijah Impey, is a
libel. . . . . . . . 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 col-
lectively. The minutes cited for this purpose, are from the
Secret Consultations of these dates, March 21st, 1775, April
24th, 1775, September 15th, 1775, November 21st, 1775,
March 21st, 1776. Now, those of the 21st of March, 1775,
and 24th of April, 1775, cast no imputation whatever on the
Court, or Sir Elijah Impey; they are, indeed, before any
proceedings were commenced against Nuncomar; the other
minutes are directed against the whole Court, against the
judges collectively ; not one of them discriminates the con-
duct 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 any of the judges. These, therefore, by
the admission of Mr. Francis himself, are libels. The writing
of those minutes is absolutely irreconcileable with the idea of
condemning Nuncomar's petition as a libel, because 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 words—“ as a libel
against a whole court of justice ought to be treated.” It
* The majority in Council, Francis, Clavering, and Monson.
TO FRANCIS's PAMPHLET. 327
does not yet appear to be true, from anything that has been
said or published, that Mr. Francis ever did charge Sir Elijah
Impey singly; at present, therefore, it carries every suspicion
of being, what it is denied to be, ‘a new distinction, an
after-thought, an ea-post-facto vindication.” Can Mr. Francis
say, that, before the paper was produced at the bar of the
House of Commons, he had ever revealed the contents of it
to his most confidential friends 7 Can he say, that he ever
before made this defence 7 The manner in which the atten-
tion of the public has been called to this subject, makes it
now highly incumbent on him to produce one minute, one
declaration, at least, in which he has charged Sir Elijah
Impey singly, as is asserted, with ‘this political measure of
the most atrocious kind.” It is the act of a friend to advise
him to do it; his friends and the public expect it. He is in
time, yet, to urge it against Sir Elijah Impey; no decision
has yet passed on the first article [the Nuncomar charge].
He would not have asserted it, if he could not do it, and he
will not shrink 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 admitied 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 violence of his temper.
“The latter are bold assertions against a judge who is no
more; and, not to be expected from the mouth of him
[Francis] who professes to be so tender of the fame of his
deceased friends [Clavering and Monson], from the man who
claimed favour and indulgence to one of them [Clavering],
‘ as due to a person of high character, to a person who is not
here, who is not only absent, but dead, and who died in the
service of his country.’ To this indulgence, and on the same
account, Mr. Justice Lemaistre, was equally entitled, with
that gentleman, for whom it was claimed; this wanton and
indecent attack might surely have been spared against a man
answering to the same description. Mr. Justice Lemaistre
left behind him a widow, a son, daughters, relations and
friends, who may feel as keenly for an injury done to his
memory, though, perhaps, not with the same public ostenta-
tion, as Mr. Francis may for that of the persons with whom
he has been connected. His living in a particular intimacy
with Sir Elijah Impey, has been positively and pointedly
negatived, before the Committee, by one witness:* his clerk
was also before them, and might have been examined to the
* Samucl Tolfrey, Esq.
328 SIR ELIJAH IMPEY'S REPLY
same point; he could have informed them with whom the
midnight social hours of that gentleman were spent. * What
is meant by the dark innuendo, where it is said, ‘of him we
had then no other ground of suspicion,’ is not explained; the
friends of Mr. Justice Lemaistre have a right to an explana-
tion of it.
“Mr. Justice Lemaistre was so far from being the instru-
ment of Sir Elijah Impey, that his opinions with regard
to the jurisdiction of the Supreme Court, differed materially
from those of Sir Elijah: he was an honest and a warm man;
he was not contented with opposing Sir Elijah Impey on the
bench, which he thought his duty required, but protested
against his conduct in a public letter. That he openly opposed
Sir Elijah Impey in many instances in which the East India
Company, and the Council, were materially concerned; and,
that the opinion of Sir Elijah Impey was in those cases preva-
lent, by virtue of the casting voice, given to him as the Chief
Justice,—being aided by Sir Robert Chambers only,–must
be within the knowledge of Mr. Francis. Will he say, he did
not know this to be the case, when a mandamus was applied
for, to restore Mr. Stewart to the office of Secretary to the
Council, in the action brought by Cummaul O'Deen against
the Calcutta Committee, and in the instance of the rule
formed by the Court, to support the right of the Company to
detain prisoners on account of revenue ! If he does re-
member those oppositions by Mr. Justice Lemaistre, ought
he to have been made to say, that Mr. Justice Lemaistre
acted on all occasions, as the instrument of Sir Elijah Impey?”
Again, admitting, for the sake of argument, that the
author of the pamphlet, to which my father was reply-
ing, and Francis, who had delivered the speech of the
27th of February, Ł were not one and the same, but two
distinct persons, he continued,—
“But Mr. Francis's character is treated with still greater
freedom by this author, who makes him declare, with the
most complete sang froid, ‘that he did not hesitate to de-
clare, in the most explicit manner, that the private motive
of his standing so forward as he did, for the destruction of
the copy, and translations of the petition, sent by Nuncomar
previous to his execution to General Clavering, was not the
public one assigned.' Does he esteem it a trifling matter to
put false reasons on a record, which the Parliament has re-
* Supposed to have been Francis himself.
f The said pamphlet was nothing but a full report of the said speech.
To FRANCIS's PAMPHLET. 329
quired to be laid before the King's Ministers, as official au-
thentic intelligence of the acts of the Council, and the special
reasons of those acts 7 After such an avowal, who is to
distinguish, on the public records of the Company, what are
his true reasons, from those which he may afterwards, ‘in
the most solemn and explicit manner,’ ‘ on his honour,’ and
‘ on his oath,’ ‘not hesitate,” when pressed, ‘to declare not
his true reasons,’ ‘but that he was really actuated by some
private motive 7” What a door does this open against him
What private motives of ambition and vengeance, after such a
declaration, had it been advanced by himself, might not those,
who are not inclined to think well of him, assign for many
public acts, of which he has himself, perhaps, given the true
and honest reasons ! .2
“Let us now suppose the reasons assigned on the record to
have been only ostensible; let them be expunged, and every
memorial of them be destroyed; let the true operative motive
be substituted in their place. “It was his fear for the safety
of General Clavering ; Colonel Monson and he observing
that the judges had gone all lengths, that they had dipped
their hands in blood for a political purpose, and that they
might 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 unequivocal accusation of
all the judges collectively, and of the whole Court, not of Sir
Elijah Impey separately. The judges, not Sir Elijah Impey,
had gone all lengths, for they, not Sir Elijah Impey only, had
dipped their hands in blood for a political purpose, and the
fear was, that they, not he only, might again proceed on the
same principle, and commit another legal murder on the per-
son of General Clavering. What is become of their want of
suspicion of Sir Robert Chambers and Mr. Justice Hyde now?
Was all this fear for the safety of General Clavering, on ac-
count of Sir Elijah Impey alone 7 Mr. Justice Lemaistre
was then suspected only from his intimacy with Sir Elijah
Impey; was it thought, that he was so much an instrument
of Sir Elijah, as to have aided him in inflicting a capital
punishment on the General 2 And for what? For what was
esteemed publishing of a libel ! ‘What he—General Clavering
—had dome, was, in truth, a most rash and inconsiderate
action: namely, the bringing the petition at all before the
Board; the man was dead, and General Clavering made him-
self the publisher of the libel; he put himself in the power
of his enemies, who infallibly would ruin him.’ This, let it
operate as it may, Mr. Francis declares, “on his honour, and
that he shall, if necessary, on his oath, was a strong con-
330 sIR ELIJAH IMPEY'S REPLY
current motive with Colonel Monson and him, for getting the
paper destroyed.’ In the same page it is said to be, not the
concurrent, but the ‘the sole motive.’ Had this been the
reason on record, would even the names of General Clavering
and Colonel Monson—so continually insisted on by Mr.
Francis as props to his reputation—added to his own name,
have procured credit to it from one man in England, let him
be ever so much addicted to party £"
My father then goes on to expose the monstrous
absurdity of Francis's pretended belief, that the life of
General Clavering was in danger, and that the judges
of the Supreme Court at Calcutta, in the opinion of
the Members of Council, had power over the liberty
and life of a Member of Council.
“It was impossible that they should be ignorant, that the
publication of a libel, the supposed offence for which it was
feared the judges would again go all lengths, and would again
dip their hands in blood for a political purpose, could by no
strained construction of any law be made a capital offence.
Did they fear that the General might be committed ‘to the
common gaol of Calcutta, so miserable and so horrid a place,
that the bare commitment to it was equal to death ^* They
must have known that in England it was a bailable offence.
They knew the special protection which the Charter gave
them; ‘That the person or persons of the Governor General,
or any of the Council, shall not, nor shall any of them res-
pectively, be subject or liable to be arrested or imprisoned,
wpon any action, suit, or proceeding, in the said Court, except
in cases of treason or felony; nor shall the said Court be
competent to hear, try, or determine, any indictment or in-
formation, against the said Governor General, or any of the
said Council for the time being, for any offence, not being
treason or felony, which the said Governor General, or any of
the said Council, shall, or may be charged, with having com-
mitted in Bengal, Bahar, and Orissa, anything herein con-
tained to the contrary notwithstanding.” +
“Was it expected to be believed, that the majority of the
Council, with the whole executive power in their hands, would
be so tame and submissive to a court of justice, as to suffer
the General to be punished in any manner enormous and
outrageous 7 Could fears arising from the expectation of
* With the very extreme of exaggeration, the prison-house of Calcutta
had been so described by Francis.
f See Regulating Act and Charter, ante p. 37–43.
To FRANCIS's PAMPHLET. 331
such impossible acts, be assigned on the record, as causes for
condemming the paper and destroying the memorial of it?
If such causes, entered on record, would not have gained
credit, they surely do not come with greater authority from
the oral testimony of Mr. Francis alone, even with the
addition of his oath, and of his honour, to sanctify them: no
man’s oath can be received in any court of justice, to falsify
a record, much less to falsify his own act, recorded solemnly
by himself. What would have been the indignation of the
majority of the Council, if Sir Elijah Impey had attempted
to falsify their reasons solemnly entered on record 7 Let us
hear, what they themselves say on a similar occasion, in a
minute of the 15th of September, 1775; “As to the dismission
of Mr. Playdell, we have assigned our reasons, and disclaim
any right in Mr. Hastings to attribute our conduct to other
motives.” Them what right has Mr. Francis to attribute
their conduct to other motives than what they have assigned ;
and to throw so gross an imputation on the memory of his
deceased friends, as that of having recorded themselves liars 2
Can common sense endure that his testimony should be re-
ceived to prove, that the panic operating on the minds of him
and Colonel Monson, had force sufficient to 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 to add a stigma to the memory of a man, whom they
knew to be falsely condemned to death, because he had justly
remonstrated against the imiquity of his sentence?
“Was this a cause that could produce such effects 7 Was
this a fear, qui cadere potest in virum constantem? The
assigning of such a fear as a motive, had those gentlemen been
alive, might have been the cause of more real danger to Mr.
Francis, than the supposed publication of the libel could have
been to the General. Would either of those gentlemen have
borne that such a defence should be set up for him with
impunity ? Would 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; would he have suffered himself to be
protected from such a danger in such a manner 7 Would
the Colonel + have borne to hear such a concurrent motive
assigned to himself 7 Would he have thought it honourable
to the General to have falsified 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
* Clavering, f Monson.
332 SIR ELIJAH IMPEY's REPLY
extravagant effects, how came they so far dissipated, that the
same persons should, on the 15th of September following,
adopt in their own name what through fear only they had
condemned in the petition of the convict 7 If it was danger-
ous on the 16th of August, why was it less so on the 15th of
September 7 Their fears in August were, that they were
betrayed by a Member of their Council, to Sir Elijah; had
that suspicion ceased in September?”
It had been attempted in the pamphlet to which my
father's answer was a refutation,-
“To prove that the minutes and the reasonings on the
proceedings are not contradictory, because it would have been
an act of folly, had they been so, to have entered them on the
same record, that, no men, ‘not absolutely idiots,’ could have
entered such contradictions on the same record, without
placing “ themselves in a point of view before the Directors,
which must utterly have annihilated their confidence in
them.’”
To this flimsy reasoning, my father opposes a train
of syllogistical arguments, from which he draws con-
clusions so plain and convincing, as to leave no single
fallacy undetected, no assumed fact disproved. For
evidence of this, I refer the reader to the pamphlet itself,
from page 37 to 44; the rather, as I have already en-
croached too far upon the limits allotted, in the present
volume, to topics which will be found elsewhere, very
copiously discussed.*
But, though I despair of doing justice, in this place
to the “Refutation,” from whence I have been quoting,
yet I cannot, even here, dismiss it altogether, without
some further notice of its remaining topics.
“There is one assertion,” continues my father, “of a serious
mature, indeed, if it has truth and sound reasoning for its
foundation. It is asserted, that the paper [i. e. the fac-
simile of the Nuncomar petition] ‘must have been obtained
by means the most unjustifiable:’ ‘by means which prove
that they—the Council—were betrayed to Sir Elijah Impey
by one of the Members of their Board;’ ‘which prove to
demonstration, a collusion and confederacy between him and
Mr. Hastings.” . . . . .
“Before the communication of this paper is admitted to be
* Namely, in the documents which I repeat my promise of depositing
in the Library of the British Museum.
To FRANCIS's PAMPHLET. 333
damning proof, let us see what was communictated, and what
was the occasion of the communication. The majority of the
Council had, by gross insinuation on their secret minutes,
accused both Mr. Hastings and the judges of a combination
to take away the life of his accuser, and thus to defeat accusa-
tions which had been brought against him. If Mr. Hastings
had not been joined in the same charge, ought he, as a man
of honour, to have refrained from informing Sir Elijah and
the judges of that unjust attack 7 Which was the dishonour-
able part of the business, the making these insinuations, as
far as they respected the judges, matter of their secret con-
sultations, and by that means transmitting them to England;
or, the communicating them to the judges for the purpose of
their repelling the injury 7 Mr. Hastings being in possession
of this paper, which was a complete refutation by the Council
themselves of the insinuations by them thus despatched to
Europe, would Mr. Hastings have done more than common
justice by putting it into the hands of one of the judges 7
But Mr. Hastings himself was personally interested in the
vindication of the judges. He was charged as a confederate
with them; he was become a joint defendant; it was necessary
to him that the defence should be joint; they could not be
guilty without his being involved in the same crime; the act
which enabled the judges to defend themselves, was, as done
by Mr. Hastings, in the mature of self-defence—that was the
cause of the communication of the paper; and the paper itself
was put into Sir Elijah Impey's hands, as much for the
purpose of defending himself, as for the defence of Sir Elijah
and the other judges. The Council were betrayed to Sir
Elijah Impey, because Mr. Hastings put it in the power of
the judges to defeat their secret attack; because he did not
confederate and conspire with those who accused, to disarm
the judges from making a defence, as meeessary to his own
safety and honour, as it was to that of the judges. This was
the criminal intercourse; this was the instance in which they
suspected themselves to be betrayed. This intercourse, this
communication, did not exist till these minutes made it me-
cessary for the mutual defence of all the parties who had been
calumniated; no such communication was ever carried on, but
on that occasion: no such had been at the time the paper was
condemned; it is an ea-post-facto vindication that suggests
it. -
“The point of honour, on this subject, is carried for Mr.
Francis to a most extravagant pitch; these are the words that
are given him in speaking of the communication of the paper:
“Even if there had been no oath, Mr. Hastings was bound by
his own agreement; in my breast, I hold such an agreement
334 SIR ELIJAH IMPEY'S REPLY
to be equally binding as an oath.' If there had been such
agreement, was it not virtually, was it not completely cancelled,
when the very matter which was condemned in the paper, had
been made matter of accusation against Mr. Hastings? Had
not the majority of the Council equally agreed that the paper
should be considered as a libel? Had not Mr. Francis—who
first denominated it so more especially—agreed to esteem it so?
Was not he, who had been the first mover in destroying all
memorials of it, more particularly bound in honour, if not by
his oath, after he thought all memorials actually destroyed,
not to have set up that matter, which he had agreed with the
Council to consider as false and libellous, as a true accusation
against Mr. Hastings? Who was guilty of the first breach of
faith, if Mr. Hastings can be supposed to have been ever
bound by an agreement 7 Was it binding on one side and
not on the other? Could any point of honour oblige him to
submit to the consequence of so foul an accusation, without
making use of the means of defence which were in his own
hands ! It would have been a most refined stroke of policy
to have cajoled Mr. Hastings into such an agreement, and
such a construction of the point of honour.”
Mr. Francis—or the author, as he is called through-
out the “Refutation,”—had attempted to account for
the Council having refused to apply to the judges for a
respite in behalf of Nuncomar; to this my father thought
it necessary only to observe,
“That all the applications of the Council which met with
any opposition from the Court, were acts of direct interference
with the province of the judges, and pending the proceedings
before the trial.
“They could not possibly be considered as reasons for not
laying such a case before the judges, as they might think
reasonable cause to respite the sentence. The Court appears
very properly to have resisted the receiving letters and mes-
sages concerning matters in suit before the Court ; it did not
therefore follow, that applications private or public, might not
be made to the judges, collectively or individually, for the
purpose of a recommendation to mercy.”
Here my father quotes the minutes in Council, dated
June 25th, and the answer of the Court two days after,
to prove that—
“The pamphleteer” had “been guilty of a most gross
misrepresentation, by applying an answer of the Court to a
subject different from that to which it was given.
To FRANCIS's PAMPHLET. 335
That answer was not given, as is stated in the pamphlet,
to any application made in favour of Nuncomar ; it was a
frivolous claim to the right of an ambassador, to which Lord
Ashburton, as appeared by Sir Elijah Impey's defence, pro-
perly blames the judges for having paid too much attention.*
“No application was made in favour of Nuncomar by the
Council after his conviction: the former applications were
never assigned as reasons for not making them, by any of the
Council.” -
It had been alleged, that my father, in his defence at
the bar of the Commons, had made “a wanton attack
on the memory of General Clavering and Colonel Mon-
son, and that he had been guilty of a breach of gallantry,
in reflecting upon their ladies, on account of their cere-
monious visit to the convict, while he lay in prison
under sentence of death :” “But,” says my father, “the
foppery of gallantry would have been ill-adopted by a
judge pleading for everything that is dear;” nor “was
§§. Impey under any such personal obligations
to those gentlemen as to give up a material part of his
defence to an accusation, which might affect his for-
tune, fame, and liberty, while living, as well as his
memory, and the happiness of his posterity, after his
death.’
In answer to the pamphleteer's attack upon the truth
of his defence, my father retorts thus:—
“No man has a right to call Sir Elijah Impey's veracity
in question, because a Member of the House of Commons has
thought fit to prefer articles against him. Before such an
accusation, surely, some ground should have been laid for it.”
Then glancing at Francis, he proceeds:—
“Had Sir Elijah given public reasons for a proceeding on
record, which he afterwards disavowed to be his true reasons,
and had he attributed his conduct to any other private motive,
he would have no right to complain that the truth of any of
his assertions should be publicly denied: till that or some
other just cause of suspicion be ascertained, he [Sir Elijah],
will do right to treat the attack and the attacker with the
silent scorn they merit.”
Mr. Francis, it is well known, had professed a neu-
*This ambassador had been sent from the Nabob of Bengal. See
“Refutation,” page 40, for the minutes omitted here. See likewise Lord
Ashburton's letter, page 295 of this volume.
336 SIR ELIJAH IMPEY'S REPLY
trality during the prosecution of my father; and it is
equally notorious that he publicly professed “never to
sit in judgment on him, nor ever to give a judicial vote in
any cause in which Sir Elijah might be a party, unless
he could safely give it for him.” ” How far Mr. Francis
preserved this neutrality, or redeemed this pledge, is
sufficiently apparent to all who have attended to his
behaviour during these proceedings: and the conclusion
fully justifies my father's words towards the end of his
“Refutation”:—
“The zeal and activity of a professed enemy satiating his
vengeance as a prosecutor, ever acts on a generous people
in favour of the party prosecuted. This Mr. Francis has
already experienced.”
And again :-
“Passions do not argue logically, or make metaphysical
distinctions; they do not distinguish accurately the cases that
are favourable or unfavourable to those against whom the
have been excited. After that declaration, notwithstanding
the qualification annexed to it, he [Mr. Francis] is most cer-
tainly to be dreaded by Sir Elijah Impey, 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 assumed, his friendship or
enmity must be matter of indifference.”
The pamphleteer, alias Francis himself, in spite of
the above profession of neutrality, &c., had rather in-
consistently vowed “eternal hostility” against my
father; to this my father replies:—
“It is not Sir Elijah Impey who has marked him [Mr.
Francis] as an enemy; he has, by his public declarations,
marked himself as the enemy of Sir Elijah, who only gives
credit to those declarations, in asserting that he is so. From
the picture of his own heart, delineated by the pencil of Mr.
Francis himself, when he made them, Sir Elijah Impey's must
be deformed, indeed, if it does not appear to advantage, when
placed, where Mr. Francis desires it should be, in opposition
to his. Let Mr. Francis really desist from assuming the cha-
racter of a judge, or a witness, and there is no reason that Sir
Elijah Impey should not treat his “eternal hostility’ with
everlasting contempt.”
* See Mr. Nicholls's testimony to this fact, in his “Recollections,”
quoted page 174 of this volume.
To FRANCIS's PAMPHLET. 337
In a postscript to this cogent and closely logical
pamphlet, my father reasoned upon the vehement eager-
ness of Francis and his party, to possess a written copy
of the speech at the bar, which Sir Elijah had never com-
committed to writing; and upon the malevolent uses to
which Francis would have applied such written copy,
if he and his friends had succeeded in extorting it.
“ May it not be his object to procure something under the
hand of Sir Elijah, which by glosses and constructions may be
turned against him? Why else that anxiety to get his defence
delivered in at the bar of the House 7 Why those observations
to prejudice him for not doing it ! Why should that which
was done by the desire of Mr. Hastings, be used as a com-
pulsory precedent for the conduct of Sir Elijah 7 He was
heard by himself; he might have been heard by his counsel:
was it ever thought just, that instructions given to counsel,
should be called for, to be used as evidence against the party
defended? If they were called for, could any strictures be with
justice made to the prejudice of his client, for not delivering
them 7 What difference is there whether the materials were
in the hands of Sir Elijah Impey or his counsel ? The evidence
he was ready to produce.
This remarkable pamphlet, and the printed copy of
his defence at the bar of the House, may be taken as sub-
stantial proofs of the manner in which my father—as a
learned lawyer, a first-rate logician, an accomplished
orator, and an energetic though plain writer—could
plead his own cause, and cast defeat and shame upon
his assailants.
Great penman as he was, the author of the Letters of
Junius never attempted to reply to this pamphlet. He
knew that he could not refute this refutation; he felt
that the best way to deal with it, was to take no notice
of it, or, if any, such only as was taken of the books
in the Alexandrian Library by the exterminating and in-
cendiary Saracen.* Still, this convincing pamphlet, and
the triumphant defence remained upon record, and must,
for a time at least, have been accessible, not only to
public men, but also to private readers. Both remained
unanswered, and unanswerable. Nevertheless, the emi-
ment men, who had heard my father's defence, had looked
upon his humane countenance, and had witnessed
* See Introduction.
.338 SIR ELIJAH IMPEY's REPLY
his true English bearing at the Commons' bar, could
persevere, through a long series of years, in represent-
ing him as the judicial murderer of Nuncomar ! As if
he had not shattered the foul charge, and heaped shame
upon those who raised it—as if he had never delivered
any defence at all—Burke, Fox, Sheridan, and the other
managers of Mr. Hastings's impeachment, continued,
session after session, to proclaim in the Houses of
Parliament, and in Westuminster Hall, that the Indian
Rajah had been murdered by the Chief Justice, to
screen the Governor General; and that, in nearly all
the state crimes imputed to Hastings, Sir Elijah Impey
had been an accomplice or tool. That some of the
brilliant rhetoricians who inculcated, and enforced this
belief upon others, had, themselves, any faith in the
facts, I much doubt. But no such doubt was ever enter-
tained by the unreflecting, uninformed, or only partially
informed many, who made up one of the two great
political parties into which this country was then
divided. To believe in the delinquency of Sir Elijah,
became a primary article of faith with the collective
body of Whigs, a party-badge which every man must
wear, who followed the banners of Edmund Burke. Sad
sad, and most cruel—was it, that a man so utterly
disinclined, so alien in his nature, to the spirit of faction,
should have been thus sacrificed to its utmost rancour !
“A furious party spirit,” says Addison, “even when under
its greatest restraint, breaks out in falsehood, detraction, and
calumny; it fills a nation with spleen and rancour, and ex-
tinguishes all seeds of good-nature, compassion, and humanity.
A man of merit, holding different political principles, is like
an object seen in two different mediums, that appears crooked
or broken, however straight and entire it may be in itself.
For this reason, there is scarce a person of any figure in England,
who does not go by two contrary characters, as opposite to
one another, as light and darkness. There is one piece of
sophistry practised on both sides; and that is, the taking any
scandalous story, that has ever been whispered or invented,
for a known undoubted truth, and raising suitable speculations
upon it. Calummies, that have been never proved, or often
refuted, are the ordinary postulatums of these infamous
scribblers, upon which they proceed, as upon first principles,
granted by all men; though in their hearts they know they
are false, or, at best, very doubtful.”—Spectator, No. 125.
O H A P T E R X W.
THE PATNA CAUSE—APPEAL THEREON−AND DISMISSAL
OF THE APPEAL BY HIS MAJESTY IN COUNCIL.
THE result of Sir Elijah Impey's defence on the Nun-
comar charge, at the bar of the House of Commons,
was, that on the 9th of May, the House having divided
on Sir Gilbert's motion—that the first charge had been
made good—the motion was lost by a majority of 18;
the numbers being 73 against 55.
On the 27th, the day appointed for the Committee
to sit again, upon the usual motion that the Speaker
do now leave the chair, the Attorney General opposed
it, on the ground that the next article of charge, the
Patna Cause, was then depending before the Privy
Council. It would occupy too much space to quote
the debates which followed. A very partial report of
them will be found in the Daily Advertiser and the
Annual Register; the one published by Woodfall,
formerly the editor of Junius, and, at that time, super-
intended by Francis; the other by Dodesley, and under
the revision and controul of Mr. Burke. These gentle-
men could not conceal the facts that the motion was
negatived, even without a division, and that the further
consideration of the charges was adjourned to that day
three months. But they had not the candour to state,
what nevertheless was notorious, that in the course of
the “short conversation,” which they allow to have
Z 2
340 TTHE PATNA CAUSE.
taken place at the close of these proceedings, Mr. Pitt
declared that, “had he been placed in the same situa-
tion, he was not prepared to say, that he should not
have acted as Sir Elijah Impey had done.” They are,
of course, equally silent as to the opinion expressed by
Mr. George Grenville, who concurred with Mr. Pitt.
With the exception of the first, or Nuncomar charge,
and the fifth charge, about the acceptance of the Sudder
Dewannee Adaulut, the Patna charge involves and
includes within itself, all the charges brought against
my father. It involves the general question of the
jurisdiction of the Supreme Court, from 1774 to 1782,
accusing the Chief Justice, separately from his brother
judges, who always concurred with him, of having
illegally and arbitrarily extended the jurisdiction of the
Court. This charge and appeal are of the very highest
importance to the object I have in view; for, the result
of the appeal before the Privy Council was the im-
mediate cause of the abandonment of the whole prose-
cution. Not that I can believe otherwise, than that
Sir Elijah's manly, eloquent, and triumphant defence,
on the only capital charge—which was the most hor-
rible and striking, and, indeed, the only one that ever
excited the popular mind—mainly contributed to make
his enemies relinquish the contest, and withdraw sul-
lenly and silently from the field. That defence, must,
at least, have convinced them, that they had fallen
upon a man, who could prove himself a powerful adver-
sary; upon one, who was strong not only in his con-
scious innocence, but also strong in forensic eloquence,
strong in logic, and overpoweringly strong in law. It
was through this discovery, and through alarm at the
visible effect my father produced, when at the bar, that
they put an interval of three months and four days,
between the delivery of Sir Elijah's defence, and their
motion that the Nuncomar charge had been made good.
Throughout the proceedings, they endeavoured to make
up for their deficiency in moral strength, by manoeuvre
and cunning.
The Patna charge occupies a vast number of folio
pages in the Commons' Reports; * but the nature of it,
* Vol. V.
THE PATNA CAUSE. 341
and its bearings, may be explained in a very few words.
It involves, as I have already said, the general question
of the jurisdiction of the Court; but it refers particularly
to a sentence pronounced by the Chief Justice, on the
last day of term, in 1779, in a cause of action, called
Nanderah Begum versus Behadre Beg and others. The
trial of this cause, like that which gave rise to the
Cossijurah charge, may be considered as a test of the
question at that time unhappily at issue, between the
Supreme Council and the Supreme Court of Bengal,
relative to their respective jurisdictions, which, by the
ambiguous wording of the Act of Parliament, and of the
Charter, had been rendered disputable from the first.
I have sufficiently shown with what violence the dis-
pute for authority was maintained by the Council, who
went the length of employing an armed force to prevent
execution of the writs of the Court. “We find,” said
the Commons' Committee of 1781, “that the differences
between the judges of the Supreme Court and the Go-
vernor General and Council, which have lately broken
out into an open and avowed resistance by a military
power, began very early after the arrival of the judges
at Calcutta.” Chiefly on account of the frequent
revenue cases up the country, which came before the
local Courts, wherein the native judges were appointed
by the Council itself, the Council resolutely aimed at
maintaining these Courts, and enforcing their decisions.
In 1776, Shabaz Beg, a native of Cabool, but a
military servant of the Company, died at Patna, where
he had long resided. He left no children, but his
inheritance, which was considerable, was disputed by
his widow, Nanderah Begum, and his nephew, Behadre
Beg; the widow claiming under a will and other deeds,
alleged to have been executed by the deceased; and the
nephew claiming as his adopted son and heir. On the
2nd of January, 1777, Behadre Beg, the nephew, pre-
ferred a petition to the Company’s Council, or Dewan,
at Patna, setting forth his claim ; and, after stating
that the widow was removing and secreting the effects,
concluding with a prayer, that orders should be given
to prevent the removal of the goods, and to recover such
* Report, Printed in 1781.
342 THE PATNA CAUSE.
as had already been carried away; and that the
cawzee—the Mohammedan judge—should be directed
to ascertain his right, and acquaint the Council there-
with. The Patna Council precipitately gave direc-
tions to the cawzee, and other Mohammedan law
officers, to take an account of the estate and effects,
to collect them together, and to take charge of them
jointly with the parties, till a division could be made
to allot the share of each claimant, strictly adhering to
the Mussulman law of inheritance. In obedience to
this precept, the cawzee and muftees proceeded to the
house of the deceased ; and, after some resistance on
the part of the widow, executed their orders. On the
20th of January, 1777, the Mussulman law officers
delivered in their report; in which, after stating evi-
dence, &c., they delivered their opinion, that the pro-
perty of the deceased should be divided into four shares;
whereof three should be given to Behadre Beg, the
nephew, and only one to Nanderah Begum, the widow.
The council forthwith adopted this opinion, and di-
rected the officers who had given it, to carry it im-
mediately into effect. This was done; and, apparently,
with much violence and harshness. The widow com-
plained of injustice, and partiality, in the local court
and council.
In 1779, seeing that others frequently appealed from
the local courts to the Supreme Court, Nanderah
Begum commenced an action of trespass, vi et armis,
against the three Mussulman law officers of Patna,
and Behadre Beg, in the Supreme Court. The action
was for assault and battery, false imprisonment, break-
ing and entering her house, seizing her effects, and
for other personal injuries. She laid her damages at
600,000 sicca rupees, or about £66,000. Sir Elijah
Impey proceeded to trial and judgment. Behadre Beg
pleaded, that he was not within the jurisdiction of the
Court, and added a plea of not guilty. The other
three defendants, without attempting to challenge
the jurisdiction of the Court, pleaded generally, not
guilty. Behadre Beg’s plea was overruled : for it
was proved, that he, as well as his uncle before him,
“was employed by the Company,” and the Act and
Charter gave the Supreme Court jurisdiction over all the
THE PAT NA CAUSE. 343
servants of the Company, whether native or European.*
The ground on which the cawzee and two muſtees relied,
was, that the Provincial Council of Patna had ordered
them to do all that they had done; that the said Pro-
vincial Council had authority, derived from the Governor
General and Council, to sit and act as a court of
justice, and to hear and determine suits between Mus-
sulman and Mussulman, subject to an appeal to the
Governor General and Council at Fort William, and
also to enforce their decrees. The Supreme Court set
aside this justification, as insufficient on the face of it;
seeing that the Provincial Council of Patna, having
only a delegated authority themselves, had delegated
that authority to others, contrary to an established
maxim of the law of England—Delegatus non potest
delegare.
The proceedings lasted many days. At last, on the
3rd of February, 1779, judgment was given for the
plaintiff, Nanderah Begum, against all the defendants,
with 300,000 rupees damages, and 9208 rupees 10 annas,
costs, making together, 309,208 sicca rupees 10 annas,
or about £34,000; and execution was sued out accord-
ingly. As execution was resisted, the defendants were
all arrested by writ of the Supreme Court. The Go-
vernor General and Council resolved to undertake the
defence of the prisoners on the part of the Company,
and also to put in bail for all of them. In the end, an
appeal was granted to defendants, the East India
Company being bound to prosecute the said appeal
within five years, under a penalty of £30,000.
But the Company was in no hurry to do that which
it was bound to do; and the appeal does not appear to
have come to a hearing until the 12th of June, 1788,
or more than nine years after judgment was given by
the Supreme Court. The enemies of my father, how-
ever, did not wait so long to put their own injurious
constructions upon the sentence given, and the means
adopted—in strictest conformity with English law—to
carry that sentence into effect. They, at once, sent
secret reports over to England, that Sir Elijah Impey
had, most unwarrantably, extended the jurisdiction of
* For Abstract of Act and Charter, see ante Chapter II,
344 THE PATNA CAUSE.
the Court; that he had displayed a shameful partiality
on the trial; that he had granted such excessive
damages as would keep the defendants in perpetual
imprisonment. Then, after a short time, followed
a petition to the House of Commons, usually styled
and referred to as “Touchett's Petition; ” wherein the
whole conduct of the Supreme Court, not merely with
relation to the Patna cause, but in every other matter
which it had tried, was severely and indecently ar-
raigned. The Committee of the House of Commons,
to which this obstreperous petition was referred, pre-
sented and printed, in 1781, a report, as loud and un-
mannered as the petition itself. *
Yet, it is to be especially noted that this Report, in
all its main bearings, presses not on the Chief Justice
separately, but on the whole Supreme Court; on the
inexpediency of the original institution of that Court;
and on the expense of its proceedings. The drift of
the Report is, that no such court ought ever to have
been erected. The paper ends with an absurd com-
parison between the annual expense of the Mayor's
Court, at Calcutta, and the annual expense of the
Supreme Court, which had superseded the Mayor's,
with an immensely extended jurisdiction. It never
took into consideration that the Mayor's Court, filled
by servants of the Company, who had other places
and emoluments, administered law, or something that
was made to pass for law, in Calcutta only; and that
the Supreme Court was bound, by Act and Charter, to
administer the law to three wide provinces—Bengal,
Bahar, and Orissa—each as large as a European
kingdom.
When the Committee's Report reached Calcutta, my
father sate down, and, on the same day, wrote to Chan-
cellor Thurlow, Attorney General Wallace, Sir Richard
Sutton, and Dunning. These several letters were nearly
in the same words. I extract from the last.
* This Committee was appointed on the 15th of February, 1781. It
consisted of General Richard Smith, C. W. B. Rous, Robert Gregory,
Thomas Farrer, Edmund Burke, Dudley Long, Hon. John Townshend,
John Elwes, George Dempster, Lord Lewisham, William Graves, Frederic
Montague, William Pulteney, Sir Gilbert Elliot, Sir Walter James.
THE PATNA CAUSE. 345
“Calcutta, June 6, 1782.
“Dear Dumming,
“Sir R. Sutton has acquainted me with the event of the
petition against the Court, together with the written examina-
tions, the Report, etc. It is not worse than I expected, from
the turn the business had taken, from the politics of the
ministry, and the constitution of the Committee. He likewise
apprised me of the part you will take ; for which I cannot be
sufficiently thankful. In the Report, Appendix, etc., I see
many things I never heard of before ; many things which
excite my ridicule as well as indignation. That the Patna
cause should, by any temper, be turned against the Court,
astonishes me. It is sufficient to damp the zeal of any man ;
but it is useless to comment on a business that is passed.
The Indian scene, thank God l is nearly closing with me.
Though I still wish a door to be left open to my returning in
case my private affairs should make it necessary. The very
severe and quick returns of my nervous disorder, with aggra-
wated symptoms, makes my long stay impossible.”
These eminent lawyers, my father's correspondents
and life-enduring friends, could not be deluded by a
one-sided Parliament Committee Report, even though
the warm-tempered Burke had been deluded by it.
They concurred in opinion that the conduct of the Su-
preme Court had been irreproachable, and strictly legal;
both Thurlow and Dunning voluntarily pledged them-
selves to stand forward in my father's defence. But
Thurlow was dilatory, and Dunning was dead ere
Sir Elijah reached England, and long before his
impeachment was attempted by men who pretended
that the world ought to take those scandalously par-
tial Reports for proven and irrefragable facts; and
who had no other evidence to offer, except such as they
drew from the black book, and blacker heart of Philip
Francis. f.
It would be tedious to the reader, and difficult for me,
to go any farther into the merits of the Patna cause.
I, therefore, proceed directly to the issue and fate of the
Appeal on that cause, the pendency of which before the
Privy Council was, on the 27th of May, 1788, urged by
* MS. Letters in my possession.
† On the 27th of February, 1788, Mr. Francis, then in Parliament, read,
from his place in the House of Commons, his evidence against Sir Elijah,
out of a MS. book, which was commonly referred to as the black book.
346 THE PATNA CAUSE.
the Attorney General in bar of the further sitting of the
Committee.
That Appeal came to a hearing on the 12th of June,
1788, when a motion was presently made to dismiss it
altogether. The members of the Privy Council took
time to consider what order to make. On the 24th,
they agreed to report to the King that the Appeal should
be dismissed. On the 26th they resolved to petition
his Majesty to restore it.* But, on the 24th of March,
1789, they confirmed their first resolution; and, on the
3rd of April of that year, it was finally dismissed by the
King in Council, for want of prosecution.
These facts, together with the following document,
I have derived from the records preserved in Her Ma-
jesty's Privy Council. The inestimable value of this
document is, in my mind, infinitely enhanced by the
consideration that I owe it to the personal-favour of the
late Honourable Clerk of the Privy Council; an obliga-
tion which I have the greater pleasure in acknowledging,
as it revives the memory of an hereditary friendship.
To Lord Chancellor Bathurst my father was indebted
not only for his recommendation to the appointment in
India, but also for his Lordship's steady support in
Parliament, both before and after his return to England:
the Honourable William Bathurst, late Clerk of the
Privy Council, is grandson of that noble Lord and
eminent Chancellor.
ExTRACT FROM MINUTEs of PRocBBDINGS IN THE
PRIvy CouncIL.
“At the Court at Windsor, the 3rd of April, 1789.
“Present, The King's Most Excellent Majesty,
Lord President Earl Howe
Lord Privy Seal Earl of Courtown
Duke of Richmond Lord Sidney
Duke of Montague Lord Amherst
Lord Chamberlain Lord Dover
Earl of Ailesbury Mr. Chancellorof the Exchequer
Earl of Leicester [Mr. Pitt]+
Earl of Chatham J. C. Williers, Esq.
* See also Law Proceedings, registered at the East India Company's
Office, in Draper's Hall.
+ The fact of Mr. Pitt's presence at this Council, is important.
THE PATNA CAUSE. 347
“Whereas, there was this day read at the Board, a Report
from the Right Honourable the Lords of the Committee of
Council for hearing Appeals from the Plantations, &c., dated
the 27th of last month, in the words following, viz. –
“‘Your Majesty having been pleased by your Order in
Council of the 28th July, 1784, to refer unto this Committee
the humble petition and Appeal of Behadre Beg, Muftee
Barraktoolah, and Muftee Gullaum Mackdoom, from a judg-
ment pronounced in the Supreme Court of Judicature at Fort
William, in Bengal, on the 3rd of February, 1779, in an action
of trespass at the suit of Nanderah Begum, widow—the now
respondent—against the appellants, and one Cauzee Sadhee
—since deceased,—and whereby the said Court did, amongst
other things, adjudge that the appellants and the said Cauzee
Sadhee, were guilty of the said trespass laid to their charge,
and that the said respondent, Nanderah Begum, should recover
against them three hundred thousand sicca rupees for her
damages sustained in that behalf, and nine thousand two
hundred and eight sicca rupees, and ten annas for her costs :
praying that your Majesty would be pleased to reverse the
said judgment, or for other relief.”
“The Lords of the Committee were this day attended by
counsel on both sides thereupon ; and the counsel for the
respondent having prayed that in regard to the great length
of time which has elapsed since the said judgment was pro-
mounced, and the appeal therefrom allowed by the said Supreme
Court, the said appeal might be considered as abandoned, and
dismissed for non-prosecution accordingly : And their Lord-
ships having fully heard all that the counsel on both sides
had to offer thereupon, do agree humbly to report as their
opinion to your Majesty, that the said appeal of the said
Behadre Beg, Muftee Barraktoolah, and Muftee Gullaum
Mackdoom, from the said judgment of the Supreme Court of
Judicature at Fort William, in Bengal, of the 3rd of February,
1779, ought to be dismissed for non-prosecution, without costs.
“His Majesty taking the said Report into consideration,
was pleased, with the advice of his Privy Council, to approve
thereof, and to order that the said appeal of the said Behadre
Beg, Muftee Barraktoolah, and Muftee Gullaum Mackdoom,
from the said judgment of the Supreme Court of Judicature at
Fort William, in Bengal, of the 3rd of February, 1779, be, and
the same is hereby dismissed for non-prosecution, without
costs. Whereof the Governor or President and Council of Fort
William, in Bengal, for the time being, the Judges of the said
Supreme Court, and all other persons whom it may concern,
are to take notice, and govern themselves accordingly.
348 THE PATNA CAUSE.
The event of this appeal equally proved the innocence
of the accused, the sagacity of counsel, and the justice
of Mr. Pitt's early administration. It quashed the
whole proceeding.
“Ibi omnis
Effusus labor, atque immitis saeva tyranni
Fadera.”
So much for the infernal confederation of King
Francis, at least for thirty years to come : that is to
say, till 1818, which is the date of Mill's first edition of
his History of British India. But, alas!
“Pretium chartis quotus arroget annus 7”
Fifty-five years after the event just recorded—namely,
the proceeding quashed in Parliament—that confedera-
tion has been revived as if, in defiance of the well-
known mathematical axiom,” falsehoods added to false-
hoods could, in the end, be anything but false ! . As if,
by dint of mere repetition, they could ever multiply into
truth ! As if facts proved by vouchers in 1788, could
be disproved in 1841 and 1843 by no evidence at all !
As if, in other words, the real truth, and nothing but the
truth, which I now advocate, having thus passed into
legitimate English history, can be cancelled by a con-
federacy of self-constituted historians, such as Mr.
Mill, and self-convicted falsifyers of record, like Philip
Francis' or, lastly, as if it is to be defeated by this
more modern combination of critics and essayists, the
Whig agents of an anonymous Review! Is that Review,
however brilliantly conducted—yet avowedly on prin-
ciples of party politics—to be read as impartial history 3
and is history itself, with all its legal and parliamen-
tary proofs, to be vilified, obliterated, suppressed, and
sneered down as no better than “an idiot’s dream” 7
We have too long witnessed the baneful conse-
quences of reiterated slander; let us now see what
may be done by equal reiteration on the opposite side,
that of justice and truth. This principle, I trust, will
palliate the frequent and perhaps fatiguing repetitions
in my narrative. They are to be considered as so many
* “Equals added to equals,” &c.
THE PATNA CAUSE. 349
protests against that besetting sin of political writers—
Punica fides. He was no unwise or inexperienced
public Censor, who never ceased to repeat in the ear of
the Roman senate “Delenda est Carthago;” nor was
he, of all mankind, the least acquainted with the ex-
amples of history, the evidences of law, common sense,
and human nature, who wrote, “Magna est veritas, et
praevalebit.”
O H.A. PTE R X W I.
SIR ELIJAH IMPEY'S LIFE AFTER THE PERSECUTION.—
PRIVATE ANECDOTES AND CORRESPONDENCE.
APPROACHING, as I now am, to the termination of the
task imposed upon me by a most awful and imperative
commandment,” I cannot but hope that I have sufficient-
ly interested my reader in the subject of this narrative, to
meet with approbation if I conclude my work in the
manner in which I began it, and in the spirit of a pas-
sage, which has always appeared to me replete with
feeling, truth, and tenderness, though taken from a wri-
ter not often quoted for his pathos:–
“Alb ral étav Kal Airm trpoo’yévnTai Tô pil trapeiual, ka: čv Trévôéori
kal 6phvois étruſytyvetat ris #60pm. "H uev Yap Airm tº am ūtrāpyeiv, jöovm
8è év tá usuvio'0at kal épáv trous éxétuov, ſcal & empêtre kal, oios jv.”—
Arist. Rhetor. lib. i. ii.
So true it is, that “in the midst of our lamentation at
the loss or disappearance of a beloved object, there
arises a sort of pleasure in its indulgence. We grieve,
indeed, that he exists no more, but feel a certain melan-
choly pleasure in looking upon him, as it were, and in
remembering what he did, and what he was.”
I shall, therefore, venture to conclude with attempting,
briefly, to describe what my father did in his last days,
and what manner of man he really was.
Sir Elijah survived his defence at the bar of the House
* Exod. xx. xii.
SIR ELIJAH IMPEY's LIFE. 351
of Commons, and his virtual acquittal from all charges
whatsoever, for well nigh a quarter of a century; and I
have always considered it fortunate for his reputation
that he had, thus, abundant time and opportunity to
appear before the world in a very different light from
that in which he had been so long exhibited. The in-
justice of his enemies never kindled a rancorous feeling
in his generous nature, nor could persecution and defam-
ation sour his cheerful temper. After the storm had
blown over, yet scarcely more than when its fury was
at its height, he stood forward—
“As one who, suffering all, yet suffers nothing :
A man who Fortune’s buffets and rewards
Had ta'en with equal thanks.”
Indifferent to the obstimacy of vulgar prejudice, he
was, nevertheless, desirous, as became him, to conciliate
the good opinion of all whose estimation was of real
value.
His first and most earnest object, therefore, as an
officer of the Crown, after landing in England, was, as
soon as possible, to do homage to his Sovereign. It has
been seen that his Majesty George III. had not prejudged
his case, that his letter of recall was written in gracious
terms, and that it contained no expression of censure or
displeasure, still less any intimation of dismissal.” The
reader will also bear in mind, that my father was never
dismissed; and that, after a long, interval he voluntarily
resigned a post to which his Sovereign wished him to
return. He retained the rank and title of Chief Justice+
up to the 10th of November, 1787, and, in that capacity,
he was presented, in 1784, by the Lord Chancellor, at
the first levee held in Buckingham Palace after his
arrival in London; he then having the same character,
and wearing the same professional garb, as when he
took leave in 1773, eleven years before.
His reception, like that of Mr. Hastings, who was pre-
sented at Court the year following, was honoured with
very marked distinction. It was not until three years
after this, that my father sent in his resignation; and,
full twelve months after he had so resigned, I find
* Ante p. 270. + Ante p. 285.
352 SIR ELIJAH IMPEY's LIFE
Government intimating to him, through a proper chan-
nel, that he might even yet return to Calcutta, as Chief
Justice, and with that seat in the Supreme Council
which he had so earnestly and so vainly solicited while
in India.
But, disheartened by the treatment he had before re-
ceived, deterred by the advance of old age, and anxiously
engaged in the education of a young and numerous
family, he respectfully declined the honourable offer. Of
the above facts there scarcely needs proof more authentic
than the date of the appointment of my father's succes-
sor, Sir Robert Chambers, which did not officially take
place until 1789, more than five years after Sir Elijah's
arrival in England.
But the very appointment of Sir Robert Chambers to
succeed the late Chief Justice, proves more than this:
for it has been shown that Chambers unanimously, with
the rest of the judges, had consented to every judgment
and sentence pronounced in the Supreme Court, during
Sir Elijah's tenure of office. Furthermore Sir Robert
had been under the threat of censure in Parliament
for an alleged offence against the Regulating Act and
Charter, similar to that for which—and for which only
—his predecessor, Sir Elijah, had been recalled. But,
upon that charge neither Sir Robert, nor Sir Elijah, were
ultimately questioned: therefore the appointment and
promotion of Chambers amount to sufficient proof that
both he and my father were virtually acquitted of any
offence in accepting the Company's judgeships.
Sir Elijah continued, at due seasons, to pay his re-
spects at Court, and to receive marks of his Sovereign's
gracious consideration. Well do I remember the fol-
lowing little incident—the time, the place, the person
of the good old King, and those of my honoured parents,
are all, as it were, before me at this moment:—In
the autumn of the year 1789, after the King's recovery
from his first unhappy malady, the royal family re-
sorted to Weymouth, a place to which his Majesty was
much addicted. It was their custom, while there, to
appear on the public esplanade; where his Majesty, as he
turned round at either extremity of the walk, would
pause to address a few familiar words to such persons
as chanced to be near him, or as he was pleased to
AFTER THE PERSECUT1ON. 353
notice. On one of these occasions, my parents, being
on the promenade with some of their children, attracted
the King's attention; and his Majesty, on inquiring
the age of the youngest of our family party, was amused
by the quick and lively manner in which the boy took
the answer out of his father's mouth, and replied to his
King, in defiance of paternal authority, and courtly
etiquette The frank, good-natured countenance of
George the Third impressed my memory ever after with
a feeling of loyal affection.
It was shortly after this that my father turned his
thoughts towards a seat in Parliament; or, rather, that
he resumed a project, which had been entertained by
him many years before; for, as early as 1780, when he
and Mr. Hastings were contemplating their return to
England, I find many passages in their private corres-
pondence expressive of an intention to “face their
enemies upon equal ground.” They had even sent
instructions to friends at home to open a negotiation
for that purpose.*
How far a revival, on the part of my father, of the
same project ten years later, may be attributed to a
similar motive, can now afford only matter of conjec-
ture: but he had, undoubtedly other reasons of a less
personal kind. From his enemies in Parliament, he
had nothing more to fear: his spoken defence, and the
dismissal of the Patna appeal, had secured him safety
and honour. But a desire to devote part of his time
and talents to the service of his country, and to the
support of a minister in whom he confided, may fairly
be supposed to have operated in his mind, equally with
a determination not to shrink from any conflict, “ upon
equal ground,” with an Opposition whose principles he
could not be expected to adopt—with that factious, rash,
and inconsiderate Opposition of new Whigs, whose
violence was not to be abated, even by the imminence
of the most terrible of foreign wars, and the chance
of internal trouble and discord, if not of anarchy and
rebellion.
The French revolution had, at this period, already
assumed a ferocious, subversive, and sanguinary cha-
* Letters to Sir Elijah's brother, and to Mr. Masterman, in MS. letters,
dated September 14, 1780, and August 22, 1782.
2 A
354 SIR ELIJAH IMPEY's LIFE
racter; the propagandists of its dogmas had already
penetrated into every European country, and clubs, in
imitation of the Jacobins of Paris, had been already
established in England. It was time for every man
who loved his country, his king and constitution, his
faith and his family, to step forward, and, according to
his degree and ability, to put forth his strength for the
defence and preservation of them all.
At the general election in the year 1790, my father,
by means of a committee, canvassed the borough of
Stafford, resolving to contest it, albeit, the stronghold
of one of his bitterest assailants, Mr. Richard Brinsley
Sheridan. On this occasion, as might be apprehended,
every electioneering expedient was practised to exas-
perate the popular mind against the new candidate.
Regardless of the recent decision of the House of Com-
mons, the Sheridan party carried in their processions
the effigy of a black man hanging on the gallows; nor
did his unscrupulous competitor hesitate to placard the
late Chief Justice as the object of all his exploded ca-
lumnies.* Sir Elijah had been summoned to the poll,
from his country-house at Boreham, in Essex; but had
proceeded no farther than London, when he met the
news of his defeat, procured by the unworthy means to
which I have alluded. Nothing disheartened, however,
he soon afterwards took his seat as Member for New
Romney.
During several sessions Sir Elijah regularly attended
his duties in the House, and on private committees,
where he rendered much assistance on legal questions.
In general debate he seldom took an active part;
mostly divided with the Ministry, and always encoun-
tered his full share of Opposition malice. In one in-
stance, though then but a young and negligent reader
of newspapers, I remember being interested by the re-
port of some debate in which my father drew down
upon himself the whole phalanx of his former perse-
cutors, with the formidable Charles James Fox at their
head. This was enough to dispirit the most practised
* I am indebted for this information to the retentive memory of my
highly-valued friend and schoolfellow, the present Colonel of the Stafford
Yeomanry, Edward Monckton of Somerford, Esq., eldest son of Sheridan's
respected colleague at the period of these events.
AFTER THE PERSECUTION. 355
senator, much more one who had not entered upon
that career till late in life; and who had nothing to op-
pose, practically, to long experience, and early initiation
into those habits, but legal forms and forensic oratory,
which are generally considered—with some splendid
exceptions—rather as drawbacks than aids to parlia-
mentary eloquence. One superiority, however, he cer-
tainly had over his hot antagonist—that of perfect
calmness, temperance, and self-possession : nor was he
a man easily to be discountenanced, or rudely set down.
He, therefore, replied with becoming spirit; and as the
attack seems to have been unprovoked, and quite
foreign to the question before the House, it was soon
silenced by the de p-toned voice of Mr. Addington.
Contemporary, and of like continuance in Parliament
with my father, was Nathaniel Brassey Halhed,” a
name never to be mentioned by me but with reverence
and affection. Our family friendship, and, subsequently,
my own personal intimacy with that extraordinary man,
enable me to confirm all that has been recorded of the
versatility of his talents. In my long walk through
life, I have seldom met the man who knew so much of
so many things, or who had so ready a command of all
he knew. In him the brightest of intellects was accom-
panied by the kindest of hearts. His principles were
as sound as his erudition, and his friendship not less
steady and enduring than his conversation was attrac-
tive and admired. Halhed's acquaintance with Mr.
Hastings and my father began in India, where he held
very important employments, and where his ability and
zeal were of incalculable service to the Governor Ge-
neral and to the Company. To Hastings he always pro-
fessed personal obligations, but it was not singly by
the tie of gratitude that he was bound, for life, to that
great and good man: he revered Mr. Hastings as an
eminent statesman who had saved and enlarged an em-
pire—and none knew better than Halhed the diffi-
culties with which he had had to contend—also he
loved him as the friend of letters, the patron of every
elevating pursuit, the pleasantest of companions, the
* Mr. Halhed sate for Lymington.
+ See Life of Sir William Jones, by Lord Teignmouth, and Memoirs
of R. B. Sheridan, by Mr. Moore.
2 A 2
356 sIR ELIJAH IMPEY's LIFE
kindest and the easiest man to live with, that might be
found in the wide world.
Sheridan and Halhed had sate on the same form at
Harrow School; and, after their schoolboy days, the
closest intimacy had subsisted between them. After
a separation of very many years, which had been
spent by Halhed in the East, they met again in England
at the moment when Sheridan, with an entire ignorance
of the subject, was preparing his oration on the Benares
charge, and acting with the foremost of the enemies of
the two men whom Halhed most loved and venerated,
Mr. Hastings and my father.
The generous, warm-hearted, and enthusiastic Halhed,
hoped he might yet be in time to serve, not only his
Indian friends, but also his Harrow schoolfellow—for
Halhed was a scrupulously conscientious man, and, as
such, believed that no service could be greater than that
which saved a friend from the commission and propa-
gation of falsehood and defamation. So guileless was
he, and so little versed in the practices of mere party
men, that he fondly imagined, if he could but once de-
monstrate to Sheridan, from his own knowledge, that the
charge he had undertaken to maintain against Hastings
was founded upon false grounds, the associate of his youth
would thank him for the revelation, and instantly throw
up the charge, and consign his oration to the flames. The
elegant, but inaccurate biographer of Sheridan, describes
the interview which took place,” but he does not tell all
that passed at it; and is wholly silent as to one of its
results.
Halhed, than whom nobody was capable of conveying
surer information, entered, at that meeting, into full par-
ticulars relative to the Benares charge. He opened the
discussion with a heart overflowing with candour and
conciliation. He was met with an artificial reserve, and
an evasive arrogance which at once closed the door to
all negociation. From that moment Halhed and Sheridan
never met or spoke with each other upon amicable terms.
The attachment between my father and Halhed was
mutual; it lasted till dissolved by death, nor was it for
a moment interrupted by a strong divergency of opinion
on some important subjects. On one point, and only
* See Mr. Moore's Memoir, vol. 1, p. 461.
AIFTER THE PERSECUTION. 357
on that one, Halhed’s imagination was too strong for
his judgment. I would speak with the utmost delicacy
of this foible of my highly-gifted and long-lamented
friend; nor would I speak of it at all, were it not already
a matter of public motoriety. Among other obstruse
questions, Mr. Halhed had devoted much time to the
study of prophecy, and the awful mysteries of the
Apocalypse. The amount of European, as well as
Asiatic lore, which he brought to bear upon these sub-
jects, was immense, nor in a less degree was the ingenuity
with which he applied it all. But his head was heated
by this one absorbing and inexplicable subject. At this
juncture another very inoffensive enthusiast—Richard
Brothers, commonly called “Brothers the Prophet”—
began to utter his wild predictions. Halhed listened,
examined, and became more than half a believer in them.
This was during the early part of the French revolution,
when the British Government and people naturally took
alarm at every suspicious circumstance. Brothers was
constantly announcing the fast-approaching subversion
of all states and kingdoms; but in a far different sense
from that maintained by the Republicans of France.
Government, however, chose to couple his religious in-
sanity with their political madness; and Richard
Brothers, for some supposed seditious words, was
apprehended and committed to Newgate, as one guilty
of high treason. Halhed, who rightly thought that he
had been committed on a very irregular and foolish
warrant, resolved to stand forward as his champion
in the House of Commons, and gave notice of a
motion for his discharge.
My father, fearing that his friend would not confine
himself to the question of law, and the loyalty of the
prisoner, but that, growing warm in debate, he might
give vent to his peculiar opinions, and, in a manner,
identify himself with Brothers, remonstrated in private
with Halhed, and left no effort untried, to dissuade
him from making his speech. But all was in vain.
The day before that fixed for the motion, Halhed wrote
the following note:—
“Dear Sir Elijah,
“I must make my motion. I cannot help it. You un-
doubtedly, will answer me, if you like. Be assured I shall say
358 SIR ELIJAH IMPEY's LIFE
nothing offensive to anybody, and, that my motion will not be
so objectionable, in point of matter and business, as that we
discussed last night; for which discussion I hold myself most
truly obliged to you.
“Yours sincerely,
“N. B. HALHED.
“Tuesday morning.
“You will have the goodness to excuse me, if I cannot be
at home this morning.” ”
Having thus shut his door to his friend, IIalhed, with
much diligence and deliberation, prepared his speech.
What followed is but too well known. On Wednesday,
March 31st, 1795, Halhed made his motion in the
House, and delivered his extraordinary oration. Extra-
ordinary, indeed, and startling, and extravagant in its
premises, was the greater part of the speech ; yet, so
ingeniously and systematically was it constructed, and
so eloquently was it delivered, that it was listened to in
profound silence for three long hours. My father often
described that silence, by saying, “You might have
heard a pin drop in the House.” The motion was lost
for want of a seconder; and, in a very few days,
London was ringing with jokes, and more weighty
censures, against Halhed,—even as his friend had gently
predicted. Unfortunately, the hallucination was not to
be dissipated. This remarkable man, so clear-sighted
on other subjects, most unaccountably adhered to the
extravagant opinions he had formed on this; and, be-
fore long, it was announced, that he was preparing to
follow the pseudo-prophet and king of the Hebrews, to
Jerusalem Then, to use an expression of Horace
Walpole, “it rained squibs and satires | *
Let me not be understood to join in any unbecoming
ridicule of matters, too serious to be laughed to scorn, if
I am tempted to copy one harmless piece of raillery,
which proceeded from no unfriendly pen, and was so far
from being taken amiss by the object of it, that Halhed
himself joined in the smile which it excited, and gave
the original note to my father; who, though he might
continue to expostulate, never allowed himself to laugh
at his friend, or to treat such subjects with any levity.
* From Halhed’s MS. note to Sir Elijah, now in my possession.
AFTER THE PERSECUTION. 359
The note was written by one who had been schoolfellow
and playmate with Halhed and Sheridan.
“Bath, February 12, 1796.
“Dear Halhed,
“Without inquiring how you come to be the chosen of the
chosen, the ingenious smith to make the “key to the lock, I
will tell you I am satisfied of its mechanical aptitude, and am
happy to be, like Ursula, acquainted with every ward of it.
Meanwhile, through the aperture of the door, I cannot en-
visage the interior with much glee. Heavens ! must it be,
that while your poor schoolfellow shall be left a prey to the
miseries denounced on this ill-fated country, you, under the
blessed auspices of your prince and prophet, will be singing, —
“Hail Judea Happy Land l’
tº º tº e & Oh I happy Hebrew Yes, Richard
Brothers is right. And sure it is, I did remark, now so many
years past, a brotherly regard in you for Dutchy, the little
cockle-selling Jew at Harrow. And oh attend to what may
be considered my dying request. Should you meet that worthy
Israelite on your way,+at Constantinople, for instance,—pay
him, O! pay him, three halfpence which I still owe !!
“Heaven, and Mr. Brothers, only know, whether or not I
shall ever revisit Babylon; but of this I am well assured, in
case I do, that I will personally bear witness to your profound
sagacity, and my unfeigned admiration of it.
With the greatest regard, yours,
- W.M. LUTwYCHE.””
Yet, apart from this one aberration, Halhed was as
sound in mind, as he was good and generous at heart.
His learning, fostered by industry and research, kept
steadily on the increase; his intellect was comprehensive
and commanding; he ceased not to be consulted and
referred to, by the most gifted and clear-headed of his
contemporaries. As a guide and counsellor to studious
youth, he was invaluable. I, who owe him much, and
loved him well, would fain dwell longer on the merits,
and manly virtues, of Nathaniel Brassey Halhed; but
must be contented, in this place, to express my regret,
* This letter was found among my father's papers, with a note in his
hand-writing, purporting that it had been given to him by Mr. Halhed,
the object of the witticism.
360 SIR ELIJAH IMPEY's LIFE
that he has left so little behind him, to rescue his
literary character from oblivion.*
My father was attached to a quiet rural life. On
quitting Parliament for good, he fixed himself almost
wholly in the country, seldom visiting London. This
was some time in the year 1792; but he did not en-
tirely give up his house in Wimpole Street, until he
went abroad, nine years later. The first country-house
he rented, after his return from India, was, as I have
said, at Boreham, in Essex, now the seat of Sir John
Tyrrel, Bart., Member for the County. There, some of
the happiest days of my childhood were passed; and
there, my father, who acted as tutor to all his sons,
smoothed the way to my classical studies; and, with the
assistance of the Rev. W. Trivet, formerly an usher at
Westminster, and then master of the well-conducted
grammar school at Felsted,"f prepared me for the earlier
forms of Westminster School. Well do I remember
the patient assiduity, and imperturbable good temper,
with which my father imparted his instruction; making
that clear to the capacity of a child, which many pro-
fessed teachers contrive to make difficult to the compre-
hension of a youth. To him, and to the eminent pro-
fessors under whom I was placed, by his parental care,
I am proud to attribute whatever literary tastes and
habits it is my happiness to have imbibed.
Upon giving up Boreham, Sir Elijah rented, of
William, the fourth Duke of Queensberry—third Earl
of March–Amesbury House, in Wiltshire. It was a
noble villa, built in the best style of Palladian architec-
ture, and pleasantly situated on the banks of the Avon,
near Stonehenge. Pleasant, too, were its classical re-
collections; for there the poet Gay, one of the most
single-minded of men, had probably written many of
* The late Nathaniel John Halhed, Judge of the Sudder Dewannee
Adaulut, and nephew of my friend, inherited the papers of his uncle, by
bequest of his widow, but died without publishing them, in 1836. They
then fell into the hands of his friend and executor, Dr. John Grant, of
the East India Company’s Medical Establishment, a gentleman highly
capable of editing them ; so there is yet hope that, sooner or later, they
may see the light.
f Felsted is an ancient endowment, and historically interesting, as being
the school at which the sons of Oliver Cromwell were educated. Of
my contemporaries, the most remarkable were, the two younger brothers
of the late distinguished wit, poet, and scholar, John Hookham Frere.
AINTER THE PERSECUTION. 361
his latest poems, and had spent much of his time
loitering, as was his wont, L
“Where the tall oak his spreading arms entwines,
And with the beech, a mutual shade combines; ”
Or making merry, in some cool alcove, with his noble
host, and goodly company:—
“While all the wondering nymphs around him throng,
To hear the syrens warble in his song.” +
In the hospitable Deanery of St. Paul’s, where I
have been honoured as an occasional guest, is a very
pretty landscape, with figures representing Gay, even in
such company, and in such an alcove; revelling, haply,
with his choice companions, Pope, Parnel, Swift,
Arbuthnot, in the ducal bowers of Amesbury.
While Sir Elijah was making arrangements for
quitting London, to take possession of his new abode,
he, being still in Parliament, was assaulted and knocked
down in the street, as he was walking one night, after
a late debate, from the House of Commons to his re-
sidence in Wimpole Street. The occurrence took place
at the south-east side of George Street, Hanover Square,
near the corner of Maddox Street. As nothing was taken
from his person, it seemed as if robbery had not been
the motive of the assault; but it is possible that the blows
might, nevertheless, have been dealt with that intention;
and, that the robber may have been frightened away
from his victim, by the approaching footsteps of those
who found him in the street, and conveyed him home.
Others may, perhaps, have indulged in conjectures
about old personal grudges; but my father never did.
I can only remember the placidity and cheerfulness of
his temper, while laid prostrate on the bed of sickness;
the injuries received having been serious. He was
attended by his much-esteemed friend, Mr. Adair
Hawkins, f one of the most eminent surgeons of the day.
* Gay’s “Rural Sports,” canto I. The local tradition, in our time,
was, that Gay wrote his fables in a grotto, which I well remember, at
Amesbury; and it is recorded by Johnson, that he enjoyed “ the affec-
tionate attention of the Duke and Duchess of Queensberry, into whose
house he was taken, and with whom he passed the remaining part of his
º He died on the 4th of December, 1732, the year of my father's
† Father of the present learned and able physician, Dr. Francis Hawkins,
with whom I claim a family friendship.
362 SIR ELIJAH IMPEY's LIFE
By this time, I was in the fifth form at Westminster,
and busied upon what is called “the Horace Task.”
This admirable exercise consists in transmuting the
different lyric metres, either into heroic or elegiac verse;
or the metre of one ode into that of another. The task
given out on the present occasion, was the Alchaic ode
to Postumus,” which I, being at his bedside, was
labouring to turn into long and short. Perceiving my
difficulty, he turned in the bed, and, after a little
thought, dictated the following graceful couplet, as a
beginning:—
“Labitur hora fugax, heu ! Postume, Postume ! vitae,
Nec morti pietas afferet ulla moram.”
Mr. Adair Hawkins, who came in at this moment,
admonished my father, that turning hexameters and
pentameters, was rather too trying an occupation for a
sick man.
Another little anecdote, of this period, I have also re-
tained. On Sir Elijah's convalescence, among the
many distinguished men who visited him, was the first
Marquess of Lansdowne; who, as Lord Shelburne and
Secretary of State, had signed the letter of my father's
recall. His Lordship spoke of the pleasure he anti-
cipated in having Sir Elijah for his neighbour in the
country, and made use of a compliment so character-
istically elegant, that it sunk into my childish memory:
—“The distance,” said he, “from Amesbury to Bowood
is but short, and nature has spread a verdant carpet
beween them.”
It must have been in the summer of 1792, that our
family settled themselves at Amesbury; and that my
father resumed those habits of equitation which he had
always loved, and which, no doubt, very materially con-
tributed to preserve in him a green and vigorous old
age. The country about Stonehenge was most favour-
able to coursing; and many, and exhilirating, were the
canters we took together over Salisbury Plain, where
both hares and greyhounds are said to be of the
fleetest and strongest breed. Two of my father's old
Cambridge friends, Dr. Harrington, at that time the
incumbent of Thruxton, not far from Amesbury, and
* Horace iv. lib. ii.
AFTER THE PERSECUTION. 363
that eminent lawyer, and highly-esteemed judge, Sir
James Mansfield, both being passionately fond of the
sport, sometimes shared it with us; and, when Sir Elijah
left Amesbury for Sussex, Sir James rented the manor,
for the sake of its fine coursing ground.* I remember
well Sir James Mansfield's favourite greyhound; it was
hardly ever separated from him, followed him into
court, and was painted with him in his portrait. But
it is better worth remembering that we here find Sir
James, who, as Solicitor General in 1781, had differed
in opinion from Dunning and Wallace, on the Sudder
Dewannee Adaulut question—about a dozen years after,
the familiar companion of my father's field sports, and
guest at his table. The fact is this: he had long been
disabused as to the main fallacy, namely, the accept-
ance of the salary. He had voted against the recall.
“This,” says my father in one of his India letters (see
MSS. in the British Museum), “is the more handsome
in Mansfield, as he was once of another opinion.” Long
after, as Chief Justice of the Common Pleas, and up to
the period of his death, Sir James Mansfield was one
of Sir Elijah's most intimate friends; and their children
after them associated familiarly together for many years.
At Amesbury, as previously at Boreham, and as sub-
sequently at Newick, the judges on the circuit invariably
visited Sir Elijah, and were entertained by him with
that hearty hospitality and playful humour, which, while
it would often set the table in a roar, was never known to
wound the feelings of a single individual. These were
judges who wore unspotted ermine—these were men
whose good fame was never questioned; these were the
associates who steadily adhered to my father, and took
pleasure and pride in his society, even at moments when
the bitterest of factions was shaking St. Stephen's
Chapel, and threatening the roof of Westminster Hall
with their denunciations against him They knew my
father well—they had known him all his life—and they
knew the spirit of his persecutors; they knew law, and
were men not to be deluded by mere declamation. The
last of those good and wise men have long been in their
graves; but delightful and still vivid is the memory I
* The house was shortly after converted into a nunnery, and has since
been pulled down.
364 SIR ELIJAH IMPEY's LIFE
preserve of them, as I saw them in their social hours,
and heard their unpremeditated converse on men and
measures, and on their own adventures and struggles
in early life. And it is still my happiness to know, that
amidst the many over-refinements of the present age,
there yet exists a generation of plain, manly British
lawyers, not inferior in worth or ability, in wit or
learning, to any that have preceded them.
In the spring of 1794, my father removed from Ames-
bury to Newick Park, in the Weald of Sussex. Newick
was, in our time, a spacious and comfortable old manor,
the property of the late Lord Vernon. It was then
surrounded by a park, containing many head of deer;
it has been since disparked, but is still, under its present
worthy occupant,” pleasant and picturesque, with ex-
tensive lawns, gardens, and plantations, beautifully
watered, and looking upon the South Downs. Man
of the recollections of my youth cling fondly to that
spot; one of them is so identified and interwoven with
a beautiful trait of my father's character, that I must
record it here.
Mr. Richard Burke, the only son of the great states-
man, and the object of all his earthly hopes, died on
the 2nd of August, 1794, at the early age of 36.4. The
news reached us on the evening of the following day, at
Newick, whither we had just returned from a visit to
Mr. Barwell, at Stanstead. My father and I went out
to walk in the park; and there, as we were sauntering
through the venerable avenue of oaks by which the
house was then approached, he stopped all at once, and
laying his hand affectionately on my shoulder, said,
“Poor man God knows I owe Mr. Burke no obliga-
tion, but I feel for him—I pity him from my heart l’
By a merciful dispensation it was ordered, that an
interval of many years was passed by my father in al-
most unalloyed enjoyment of health, in the bosom of
his family by whom he was tenderly beloved, and in the
interchange of decent hospitality with his Sussex neigh-
bours. When Mr. Hastings became settled at Dayles-
ford, our family paid him frequent visits there, which he
* James Slater, Esq.
f See the very touching account of this event in Mr. Prior's Life of
Edmund Burke.
AFTER THE PERSEC UTION. 365
and Mrs. Hastings, almost every year, returned to us at
Newick. My father and his oldest friend met also, oc-
casionally, at other places; and their intercourse was
never ruffled by any useless retrospection. Even when
time had thrown his snow over their heads, their hearts
glowed with a friendship as warm as that of youth.
In his Sussex retirement, the ex-Chief Justice of
Bengal, became a busy and rather enthusiastic horti-
culturist and farmer. I hardly ever saw him, on the
morning of a working day, at Newick, without a garden
spud in his hand; and he took his full share in most
of the gardener's active operations. Besides the spa-
cious garden, and some three hundred and thirty acres of
grass land, which supplied a large dairy, and fed about
sixty head of deer, he now held three farms of arable
ground, upon which he bestowed no little scientific
skill. Of this I have proof in divers memoranda of ex-
periments and calculations found among his papers.
“I now rent,” says he, in one of these memoranda, dated
February 27, 1805, “a farm (Tutt's) on lease, which expires
in 1808, consisting of one hundred and five acres, at £68 10s.
Besides which, I am tenant at will to Mr. Fortescue, of an-
other small farm called Newnhams, rent 2633, and also of one
called Norriss’s, rent 2623 ; but these are distinct from
Newick Park, and need not go with it.”
In the interval of these pursuits he derived amuse-
ment from the theory, and, to a certain cxtent, from the
practice of chemistry. He established a little laboratory
next to his study, and purchased and perused that
voluminous collection, entitled “Annales de Chimie.”
He showed his attachment to science by being one of
the first promoters and earliest Fellows of the Royal
Institution; and, when in London, he was constant in
his attendance on the chemistry lectures in that Insti-
tution. At Newick he was assisted in these favourite
pursuits, by his friend and constant visitor, Tiberius
Cavallo, F.R.S., who was the author of several scien-
tific works that are still held in estimation.* Though
* Cavallo's principal works were, “A Complete Treatise on Electricity,”
8vo. 1777 ; “An Essay on the Theory and Practice of Medical
Electricity,” 8vo. 1780; “A Treatise on the Nature and Properties of
Air,” &c., 4to. 1781 ; “The History and Practice of Aerostation,” 8vo.
1785; “A treatise on Magnetism in Theory and Practice,” 8vo. 1785 ;
366 SIR ELIJAH IMPEY's LIFE
he wrote in English, and published his works in this
country, Cavallo was a native of Naples: he had come
to England as an adventurer in the field of science and
literature, under the auspices of the Corsican patriot,
General Paoli, the friend of James Boswell and Samuel
Johnson; and by that distinguished foreigner he was
introduced to our family, with whom he soon, and very
deservedly, became a great favourite. I still cherish
his memory; he was a cheerful, modest, and obliging
man, not overburthened with worldly wealth, but con-
tented with his lot, unexpensive in his habits, yet
always of an independent spirit, and even dignified
in his demeanour. To us children he was a most
amusing instructor, the promoter of all our little ex-
cursions abroad, active and hilarous, full of conver-
sation at a party, essential at a concert—indispen-
sable at a play. His name reminds me of more than
one anecdote illustrative of my father's jocund humour.
Among our intimate acquaintance was a wealthy and
eccentric old dowager—Lady * * * * *—who prided
herself on her station and ancient manor house, and
who was a passionate admirer of theatricals. On one
occasion, when my father had excused himself, Cavallo
was invited to escort her ladyship and my sisters to the
play. The philosopher was somewhat behind time and
the party were kept waiting to the great discontentment
of the dowager, who loved to see the curtain draw. It
entered not into her conception of the fitness of things
that a great dame should be delayed by a poor philo-
sopher, and, at last, her pride and impatience found
vent, to my father's no small amusement, in the follow-
ing ejaculation,--as he told the story, “Cavallo in-
deed! Who is your Cavallo? I wonder where he came
from ? I wonder where his country-house is ?”
The same old lady was as enthusiastically fond of lap-
dogs as of plays. At the same time she entertained a
constant dread of hydrophobia. Some mischievous
neighbours, one day, nearly drove her to distraction by
telling her that mad dogs had become very common;
“Essay on the Medicinal Properties of Factitious Airs,” &c., 8vo. 1798;
“Elements of Natural and Experimental Philosophy,” 4 vols. 8vo. 1803.
A short but very good account of this able and excellent foreigner will
be found in the Penny Cyclopædia, Supplement, vol. 1, p. 301.
AFTER THE PERSECUTION. 367
and that it was probable her own special favourite had
been, or might soon be, bitten. Her ladyship, who had
long been accustomed to consult my father, not only on
matters relating to law or business, but on all other con-
cerns whatsoever, drove off in a prodigious fidget to our
house. “Oh Sir Elijah,” said she, “I fear poor Fop
is going, mad do you think there is any danger ?”
“Nome,” replied my father, putting on a serious face,
“none ! he can never be mad enough to bite so excellent
a mistress. But, should he unhappily impart the malady
to any one of the little insects which are familiar to dogs
and men . . . I tremble at the thought of your
ladyship's being bit by—an hydrophobious flea '.' But
it was not in this piece of drollery, or in many others, to
relieve Sir Elijah from the dowager's consultations.
We had a cousin, an undergraduate at Oxford, who
was ambitious of becoming a Fellow of All Souls. He
wrote to Sir Elijah, as head of the family, to prove him
of kin to the founder, Archbishop Chichley. We were
at table when the letter arrived. It was difficult to de-
cipher, but my father caught just enough of its meaning
to turn it into a joke. So putting on his spectacles, and
holding it at arm’s length, he began reading it aloud,
When he came to the words “ Founder's kin,” he hesi-
tated; and, at last, interpreted them—“Found in skin.”
“Our cousin,” he added, with a quiet laugh, “wants to
be found in skin l’” However, being a good genealogist,
he soon set seriously about reconciling the stemmata
Chichliana with our family tree; but found it impossible
to graft one upon the other. Some time after, when
I was at Christchurch, and our cousin still residing at
Hall, my father came to see me, and we crossed
over together to pay our kinsman a visit. He was out,
but not at All Souls—so at least we guessed; for, finding
nothing but his gown, hanging on a peg, my father
concluded that he could not yet be proved “Found in
skin.”
We had another cousin, whom we loved in spite of an
unhappy foible, which made him not always producible
in company. He was nevertheless a frequent guest at
Newick when we had none. He drove his own gig;
but, being a nervous Automedon, he generally chose a
season for his visit, when the roads were in their best
368 SIR ELIJAH IMPEY's LIFE
condition; and, sooth to say, our Sussex roads were
ofttimes nearly impassable, by reason of many deep
ruts; for Mac Adam had not yet taken the field, and
railways and steam carriages were not, as yet, so much
as dreamed of. Whenever, therefore, it was particularly
inconvenient to entertain our somewhat exceptionable
visitor, my father used to work upon his fears, by repre-
senting Newick, which was then a deer park, as rather
dangerous in the rutting season. There was, besides,
a very rutty and precipitous hill to be surmounted, called
“Cinder Hill; ”—and, according to my father's inter-
pretation to our nervous cousin, it was so called “be-
cause many travellers had left their ashes there.”
All this was afterwards versified in the harvest home
ditty, to which allusion has been made.* It is much
too long, and not altogether good enough to copy, for
it was the joint composition of several hands that were
not equally skilful. My father's contributions were by
far the merriest and the best. I will give one or two
of them ; first prefacing that the song had a burden or
chorus, which ran thus,
“Fun, boys! fun! our sports are begun;
The wise ones declare after pleasure comes care,
Why then after labour comes fun.”
and this fun partly consisted in hitching in the names,
of all manner of friends, in the fashion of poor Theodore
Hooke's after-dinner improvisations, or in a style to re-
mind one of
“O Rourk’s noble fair
Which will ne'er be forgot,
By those who where there,
Or those who were not.” +
Our absent cousin of the gig was thus mis en scéne.
“Cousin * * * 's far away, for he likes not our clay,
Now the season for rutting's begun,
For our roads and our deer, at this time o' year,
Are rutting and butting for fun.
Fun, boys' fun etc.
* See foot note, ante p. 18.
+ Swift.
AFTER THE PERSECUTION. 369
“If he travels, he 'll drown in the pool o' Pilt Down,
Or in Honey-pot Lane, ten to one ;
Or down Cinder-hill—so he'd best make his will—
He will scatter his ashes like fun.
Fun, boys | fun etc.”
We had a humourous Irish gardener who was said to
have been educated for a Roman Catholic priest, and
who had acquired a smattering of Latin; which, with his
rich native brogue, not a little mystified and amused his
less learned neighbours. He was an especial favourite
with my father, who thus sang of him, in our harvest
Song:—
“The larn’d Master Ryan, you well may rely on,
Will never our merriment shun ;
Though larmed by matur, he's quite a gay cratur,
And bothers us all with his fun.
Fun, boys | fun etc.”
Among other old India friends who followed Sir
Elijah into his retirement, and frequently partook of
these hearty, old English merrymakings, was Samuel
Tolfrey, who has been already mentioned in connection
with graver subjects, but who could turn his epigram
with the best of them, and joke and pun all through a
harvest holiday.”
When Tolfrey and Halhed, and a few more congenial
spirits met together, there was a collision of wit and a
good fellowship at Newick Park, which could not easily
have been matched elsewhere.
“Halhed,” said a forward young man who presumed
to be too familiar with him, “What is your christian
name?” “Mister," replied Halhed, “and I desire you
will call me by it.” He had once a black serving-boy,
who understood no language but Bengalee. “Hand me
the salt, ” said Halhed inadvertently. The black boy
stared and shook his head. “What a stupid fellow,”
* Mr. Tolfrey, long after his connection with the Supreme Court at
Calcutta, obtained an appointment under Sir Elijah's distinguished relative
Sir Edmund Carrington, Chief Justice at Ceylon. Subsequently to that
appointment he was employed as a civilian under the governments of the
Hon. Frederic North (Lord Guildford) and General Sir Thomas Maitland.
Mr. North granted him a conisderable sum of money for his able compila-
tion of a Cingalese Dictionary. Tolfrey was a man of great industry and
research, and very rare natural abilities.
2 B
37() SIR ELIJA II IMPEY's LIFE
cried his master, looking hard at him as he pronounced
the last word, “why it's as clear as noon-day.” The lad
instantly handed the salt-cellar, for man, in the lan-
guage of Bengal, is salt, and da means give.
I have said that Tolfrey could point an epigram. I
subjoin two or three of them, which diverted my father,
and were once universally known :-
“Here lies William Curtis, late London’s Lord Mayor:
He has left this here world, and has gone to that there.”
“Of the Hottentot Venus this record we find,-
She is dead,—and has not left her equal behind.”
Tolfrey was living at Cheltenham when the Duke of
Wellington paid a visit to that place. It had been ru-
moured that his Grace was coming to drink the waters,
for the disease incidental to hot climates, and hard
military service. All Cheltenham prepared to receive
the great man as he merited ; the town was illuminated
throughout, and all sorts of emblems, devices, and in-
scriptions, were invented and exhibited. Tolfrey hung
out a transparency, on which was a portrait of the
Duke, with these two lines, strongly illuminated,
below:—
“The hero who conquers wherever he fights,
Though his liver may fail him, shall never want lights.”
But my father's pleasantry was colloquial; it lay
rather in prose than in metrical impromptus; and, was
mostly of a sort that could win the smiles and sym-
pathies of the fairer sex : for his wit was perfectly
exempt from that grossness which was but too preva-
lent in his earlier days, not only among the gentlemen
of the robe, but in other distinguished classes of society.
A very accomplished and much admired lady of quality,
one of our nearest neighbours at Newick, knew that
Sir Elijah suffered frequently from an affection of the
kardia, commonly called “heart-burn,” and, fearing
that he must have nearly exhausted his remedies,
kindly offered, one day, to replenish his medicine chest;
“I thank you,” said he, “but,” pointing to the chalk-
cliffs between Newick and Lewes, “yonder, madam,
is my medicine chest ’’
AFTER THE PERSECUTION. 371
The same lady, while presiding, one evening, at her
own tea-table, asked whether she should give him black
tea or green 7 “I am indifferent to the colour,” said he,
“but rather particular as to the quality: the cups may
be China, but not the tea.” His usual drink was a
decoction of English herbs. For the same reason he
abstained from wine and every other fermented liquor,
but was as great an epicure in water as his friend Mr.
Hastings. Sometimes, especially during the progress
of my education, the object of my father's railleries was
myself; for he seemed to consider it no unimportant
part of discipline to teach his children how to take a
joke. When a boy, others flattered me, and, perhaps,
I flattered myself, that I had a voice and some taste for
music. One day, I was trying my powers by sundry
repetitions of Handel's lively air –
“O ! had I Jubal's lyre,
Or Miriam’s tuneful voice.”
“What a blessing, my dear boy,” exclaimed he, “that
you have neither | *
By this time, I and my two youngest brothers had
respectively reached the upper and middle classes of
Westminster School; then flourishing, to the number of
four hundred, under the rod of Dr. Vincent. My two
juniors had already been promised Bengal writerships;
and were trained accordingly, with extra lessons in
arithmetic, and the Eastern languages, under their
father's tuition. Sir Elijah, who has been impudently
and ignorantly accused of knowing nothing of those
dialects, carried his knowledge of them so far, as to be
quite able to instruct his two sons himself, employing a
native Persian, then in England, only “to teach them
a more perfect pronunciation.” ” I have, in my pos-
session, a Persian grammar, which he corrected and
simplified, and many loose abstracts beautifully written,
by his own hand, in the Arabic character; and I am
assured, by the surviver of those two brothers, that he
studied out of a MS. compendium compiled by my
father himself. I have said that Sir Elijah was an
admirable teacher. With what effect his lessons in the
* Extract from a MS. letter.
2 B 2
372 SIR ELIJAH IMPEY's LIFE
Oriental languages were imparted to my brothers,
Hastings and Edward, will best appear from a letter
addressed to him, by the late John Herbert Har-
rington, Esq., then senior in Council –
“Calcutta, 19th January, 1803.
tº e º 'º e You will perceive by the inclosed,
that Hastings left this College in the first classes of the
Hindustanee and Bengal languages, and in the second class
of the Persian. He was appointed to take part in the Public
Disputations, but was unfortunately prevented from attending
by indisposition. He also obtained a medal of merit at one
of the quarterly examinations. Edward was in the first class
of the Bengalee, and third class of the Persian language. He
also obtained a medal for the attention he had given to the
Shanscrit. . . . . . .”
& G.
As for me, about five years before the date of the
above letter, I find myself the subject of a corres-
pondence relating to one of these writerships, parts of
which correspondence seem to me too curious to be
omitted :—
“Lord Liverpool to Richard Barwell, Esq.
“Addiscombe Place, January 6, 1798.
“Dear Sir,
“I am very much concerned to hear of your frequent disap-
pointments in obtaining an object which I know you have had
in view. You may be assured that I will earnestly apply to
Mr. Dundas, and endeavour to induce him to make good his
engagement as speedily as possible. I cannot answer for my
success, for I last year obtained, with some difficulty, a writer-
ship for the grandson of Governor Watts, who is, by marriage,
my nephew. If I find I am not likely to succeed with Mr.
Dundas, I will apply to some of the Directors; though here,
also, I am doubtful of success tº gº is
“Yours &c., &c.,
“LIVERPool.”
“Richard Barwell, Esq., to Sir Elijah Impey,
“Stanstead, January, 1798.
“Dear Impey,
“I gave you my application to Lord Liverpool. I now give
you his answer. This is the straightforward style in which
he has always acted towards me : how differently the English-
man shews by [the side of] my professing Scotch friend . .”
AFTER THE PERS ECUTION. 373
“Lord Liverpool to Richard Barwell, Esq.
“London, January 21, 1798.
“Dear Sir,
“Since I came to town, I have had an opportunity of speaking
to Mr. Dundas on the subject of young Impey's going out to
India. You will easily believe I pressed him strongly. He
did not give me a direct promise that he should be sent out
this year; but he held out the strongest hope that he should
be able to do so. I am the more inclined to rely on those
expectations, he having informed me to which of the Directors
I could apply for the appointment. As a personal favour to
me, he rather discouraged me from making the application,
and held out reasons to induce me to think that I should not
do it with success. I shall not, however, fail to make such
application.
“I am, with sincere regard, &c. &c.,
“LIVERPool.”
“Richard Barwell, Esq., to Sir Elijah Impey.
“Stanstead, January 24, 1798.
“Dear Impey, -
“I hope my godson may now be assured of our object;
and your mind, as well as my own, rely confidently on his
success. . . . . Return the inclosed letter, and the one
I sent before; as I mean to contrast them with my Scotch
friend’s professing epistles, whenever the opportunity offers,
before a certain great character,” who is too partial, and
whom he certainly impresses with disadvantageous sentiments
and prejudices. . . .”
The affair ended in my declining, after some hesita-
tion, the proposed writership, which was transferred to
my brother Hastings,"f my father acquiescing in the
arrangement, with his accustomed kindness and
liberality. Another was procured for Edward,'t
through Sir Elijah's steady friend, the late highly
respected Colonel Sweeny Toone, who was then a Di-
rector of the East India Company; and, in due time,
both my brothers successively proceeded to Bengal.
The agony which my father suffered in parting with
them is not to be described. Though in the enjoyment
of tolerable health, he was, by this time, far advanced
in the vale of years; and he had the melancholy fore-
* Evidently Mr. Pitt.
† Godsons—one of the Governor General, the other of Lord Chancellor
- Thurlow.
374 SIR ELIJAH IMPEY's LIFE
boding that, in this life, they were never to meet more.
I have alluded, in an early part of this work to his part-
ing with my brother Hastings, at the Isle of Wight.”
That event took place in the summer of 1800; and, in
the year following, my brother Edward sailed. After my
dear father's death in 1809, there was found among his
papers, on a single sheet, and in his own hand writing,
the following earnest prayer, which he had never shown
to us, while living.
“O God, the Ruler of all hearts, the disposer of all events,
in whose breath are the fountains of life, whose hand scattereth
abroad the arrows of death, in whose sight nothing is great,
nothing is small, who in the desert raisest up mighty mations,
and to deserts reducest proud cities; without whose permission
not a sparrow perisheth; by whom the hairs of our heads are
all numbered: Preserve, I beseech thee, my dear sons Hastings
and Edward, from all perils by land and by water, from all
assaults of our enemies, from all diseases, particularly those
which are incident to hot climates; and from all distresses,
calamities, and evils of this life, ghostly or bodily. Whatever
is religious and virtuous in them, cherish and confirm; what-
ever hath a contrary tendency, correct and expel; and grant
that the purposes of their going hence may be honestly and
speedily accomplished; so that they may soon return in wealth
and credit, health and happiness long to live ; and that my
days may, by thy loving-kindness, be so graciously enlarged,
that I may see them again, before mine eyes are closed in
death. Bestow, I implore Thee, on my wife and on all my
children, relations and friends, long life and prosperity in this
world, and grant that they may finally enjoy everlasting life
and felicity in the world to come. O God let thy mercy
be extended unto all men. Hear me, O heavenly Father,
of thy great mercy, through the merits and mediation of Jesus
Christ, thine only Son our Lord.”
My father had also the interests of his elder sons to
attend to. Of these, one had entered the army, another
the navy; another, whom I have noticed before, as as-
sisting his father at the bar of the Commons, in 1788, F
* See foot-note, Chap. I., page 4.
† See ante, p. 189, where an error has crept into the note appended to
that page, which I now take this opportunity to correct. My brother
Archibald, was not officially “Counsel ” to the Honourable Court of
Directors; but, as I have always understood, he occupied, by their per-
mission, an honorary seat within their bar. He died, July 9, 1831;
AFTER THE PERSECUTION. 375
was bred a barrister. For Michael, so named from our
uncle, and for John, the godson of Dunning, he was
indefatigable in his exertions at the army and navy
boards. Out of many letters, I select the following
extract relative to my naval brother. It was addressed
to me, then a student at Christchurch.
“Wimpole Street, 24th February, 1801.
“ . . . . . . I was yesterday with Lord St. Vincent,
who received me in the warmest and most friendly manner.
He told me he was glad John was in the West Indies, as at
home he could do nothing for him for some months; that
Duckworth was under great obligations to him, and that he
would write to him to promote John as soon as possible.
“But,’ he added, ‘keep my secret, Sir Elijah, for if it should
be known that I have done anything for your son, I shall
bring the whole world upon me, whom I have been absolutely
forced to refuse: therefore, Tace ſ” ”
Without attempting any detailed account of my
eldest surviving brother, Admiral Impey's services, I
may be pardoned for stating generally, that they were
distinguished, chiefly in the West Indies; and, that I
have often heard him attribute his skill as a navigator,
and much of his success as an officer, to the care which
our father bestowed on his early marine education,
and to the instruction of that able sailor, Captain James
West, with whom he made two voyages to India and
back, before he entered the Royal Navy.*
But Sir Elijah was preceptor to all his children. In
every higher branch of education, he was sedulously
attentive to that of his daughters, whose accomplish-
ments and conduct in society, did honour to his tuition.
It does not become me to dwell longer upon my own
progress, than is sufficient to exemplify the personal
advantages which I derived from paternal instruction,
and with due gratitude to acknowledge my father's
ever-ready assistance.
and, being a Bencher of the Inner Temple, was interred in the Temple
Church, near a tablet erected by his late widow. I have a melancholy
pleasure, in giving my humble testimony to the merits of my late dis-
tinguished brother, Archibald Elijah Impey.
* He likewise sailed on board the Providence, with Captain Bligh,
on his commission to transplant the bread-fruit tree from the Pacific to
the West India Islands, in 1791.
376 SIR ELIJAH IMPEY's LIFE
With a view to being elected from the Westminster
foundation to one of the Universities, I was admitted a
King's Scholar, in 1794. About this time, partly
stimulated by encouragement at home, and partly by
the example of some clever contemporaries at school, I
became much addicted to the composition of Latin
verse. Robert Southey left Westminster just as I en-
tered ; but had excited a spirit of emulation among his
successors, the D'Oylys, the Murrays—Lord Stormont
and his cousin William, Lord Henderland’s son, whose
sapphics were the object of my particular emulation—
William Corne, Joseph Phillimore, and the rest of
“Kidd's Golden Election.” All these were a little my
seniors. Among those on the same form, and of the
same standing as myself, the most distinguished were,
Lord Henry Petty, now Marquess of Lansdowne, Wel-
bore Ellis Agar, since Earl of Normanton, the Honour-
able William and Charles Stuart, brothers of the late
Lord Blantyre, and James Boswell, youngest son of
the biographer. Then came Richard Edensor Heath-
cote, late M.P. for Coventry, John Symmons, who, at
the age of eighteen, had translated the “Alexandra”
of Lycophron, into blank verse; and Henry Fynes
—Clinton—the future author of “Fasti Hellenici.”
But I had fairly caught the inspiration from my more
immediate predecessor, John Josias Conybeare—late
Prebendary of York, and Vicar of Bath Easton—to
whose memory it is ever my delight to pay the tribute
of admiration and affection. He was my dearest friend
and inseparable companion, both at Westminster and
at Oxford. For many years he has been no more, but
I feel his loss as though it were a recent sorrow.
His genius, his research, his rare acquirements, are
well known to the literary world, through his “Illus-
trations of Anglo-Saxon Poetry,” which were ably
edited by his brother, the distinguished geologist and
divine,—my much respected friend, William Daniel
Conybeare, now Dean of Llandaff. They were pub-
lished in 1826.
The summit of my boyish ambition was, to translate
Pope’s “Rape of the Lock,” into long and short verse.
My father suggested hexameters as more appropriate
to the subject, and was even barbarous enough to re-
AFTER THE PERSECUTION. 377
commend the jingle of monastic rhyme. He pointed
out Parnell's ingenious travesty of the second canto of
Pope's mock heroic. But I was too deeply smitten with
Tibullus and Propertius to condescend to any less clas-
sical metre. The consequence, of course, was, a sudden
standstill at many a knotty point. At every such halt
I applied to my father, and he generously set me going
again. I remember several instances of his seasonable
aid. I found it difficult to render Pope's two lines:—
“Here living tea-pots stand, one arm held out,
The other bent, the handle this, and that the spout.”
My father gave this version :-
“Urna manum tendit dextram, curvatdue sinistram,
Fungitur haec ansae partibus, illa tubi.”
And then, enlarging the idea, and borrowing Wilkes's
joke, he added:—
“Fit genetrix partura Theam, et te, Pronuba Juno
Te, veniente die, Teque, cadente, vocat.”
I was again puzzled when I came to—
“On various tempers act in various ways,
Make some take physic, others scribble plays.”
Here he dictated to me :-
“Utaue regis mentes vario moderamine, succos
Illa bibit medicos, haec Heliconis aquas.
In describing the game of Ombre, Pope has this
couplet:—
“Now move to war her sable Matadores,
In show-like leaders of the Swarthy Moors.
I could make nothing of it, even though told that
matador, a Spanish word, was derived from the Latin,
mactator. Laughing, and recurring to his monkish
rhythm, my father thundered out, -
“Nunc Mactatorum manus advolat atricolorum,
More modoque Jubae, cum somuere tubae.”
He then threw up the cards, and left me and Pope to
finish the game between us.
378 SIR ELIJAH IMPEY's LIFE
I cannot refrain, even at the risk of being thought
tedious, from finding room here for some lines of a
graver character. They formed part of a Christmas
holiday's task, under the title of “Maria in diversorio;”
where the virgin was made to prophecy and protest
against the future Roman Catholic worship of her
Image.
“Nam memini in fatis volventibus, affore tempus,
Cum te, mate Deo, generis divine Redemptor |
Posthabito, ventura colent me saecula matrem,
Ausa immane nefas. ‘Hoc, tu Romane ! caveto.
3 33
This, though nothing but a cento, was evidently beyond
the conception of a junior in the second election; and
Vincent was far too sagacious to mistake it for mine.
“Boy, boy l’’ said he, “these are no verses of yours, your
father made them, and you may tell him I told you so.”
Sir Elijah had always been partial to the scenes
of his own childhood, and grew more and more so,
as I proceeded in my career. He frequently visited
the school, renewed his acquaintance with our ex-
cellent head-master, often begged our half-holidays,
or plays, as they were called; and, by repeated appear-
ances in Dean's Yard, became well known to the
boys, and a sort of favourite among them. He was,
besides, a pretty constant attendant at our anniversaries,
—the performance of the comedies of Terence in De-
cember, the Westminster Meeting, then always held on
the Tuesday next after the fifth Sunday after Easter;
and the Election Dinner in College Hall, on the same
Tuesday in Rogation Week. On the latter occasion, it
has long been the custom to produce a certain silver
cup, or “poculum,” of which the history is this:—About
the year 1777, there happened to be residing in India,
many gentlemen who had been educated at Westminster;
they were desirous of bestowing some testimony of their
attachment to the school; and, with that feeling, sub-
scribed to a piece of plate for the use of the King's
Scholars of St. Peter's College. This piece of plate
assumed the form of a very noble, double-handed drink-
ing cup, which was characteristically ornamented with
elephant's heads, the probosces being bent into handles,
and the sides engraved with the names of the donors.
AFTER THE PERSECUTION. 379
The first name was that of “Warren Hastings,” the
second, “Elijah Impey.” A part of the exercises which
constitute the examination of the candidates for either
University, consists, as I have noticed elsewhere, of
Latin epigrams; and, sometimes, short copies of verses
of a more serious turn, are recited. These recitations
are not unfrequently made the vehicle of compliment to
Some one present at the Election Dinner, who may be
considered a fit object of such an address. In 1801,
two years after I had gone up to Christ Church, it being
known that Sir Elijah would attend this anniversary,
it was good-naturedly contrived by the under-master,”
in whose department it lay, to greet my father's visit
with a poetical compliment. Here are the lines, under
an appropriate thesis,"f alluding to the “poculum ”
before-mentioned. They were spoken by my late friend
Edmund Goodenough, afterwards Dean of Wells, but,
at that time, captain of the school.
Musarum reduci salvere jubemus alumno,
Tamque did notas nursus adire lares;
Ecce etiam, eóis praemissum pignus ab Indis,
Hanc pateram fidei te meminisse tuae.
Ecce elephas rostrum tibi, flexile curvat in ansam,
Dentis, in argentum vertere lactus, ebur.
Unde propinandum est in honorem matris Elisae,
Cujus in aeternum floreat alma domus!!
At te, merce datá jamdudum, quod nequiamus
Immunem cyathis tingere, testis adest.
Quicquid in hóc pulchrum est, vel quicquid amabile dono,
Illud in auctores mumeris, omne redit.
Which may be translated thus:—
Welcome ! old brother Westminster, to these
Time-honoured walls : our Lars and Lemures
Hail thee a pilgrim worthy of their shrine,
True to thy pledge : for lo! yon pledge is thine.
Wafted on Hooghly's tide, from far Bengal,
Yom tankard tells of old St. Peter's Hall;
Tells of thy plighted faith, and blameless truth,
In age redeem'd the promise of thy youth :
* The late Rev. Dr. Wingfield, afterwards Prebendary of Worcester.
f “. . . . Cum tuá
Velox merce weni.”—HoR. Ode viii., lib. iv.
£ Quod felix faustumque sit !
380 SIR ELIJAH IMPEY's LIFE
That mimic tusk, from elephantime bone,
Changed to a silvery lustre not its own,
Those thinking heads, on solemn draughts intent,
Their lithe probosces into handles bent
Invite thy grasp. Then toast Elisa's name ;
Drink deep : A “Floreat” to our royal dame!
Yet thou no more gratuitous camst share
The rich carouse : for lo! 'tis reckon'd there,
Whate'er of glory in the gift may be
Graces the giver, and reverts to thee.
These verses, a few days after the dinner, were thus
acknowledged by my father, in a letter addressed to
me at Oxford, from Daylesford, where he was then
visiting.
“. . . . . Your friend, Hugh Jones, * will have told
you I was at the Westminster Election, where I heard your
verses, and was much pleased with them: though, if my ear
served me right, there was an incorrectness in one syllable.
But they were good, and I thank you for them. . . . .
Goodenough did you great credit. The Dean t told me he
was always scolding you for such slips, and asked me if you
did not say so 7 I answered the truth—that I heard from
you of nothing but his kindness. . . . . You are not to
wait for any other invitation from Mr. Hastings; his attach-
ment to you is truly parental, and I desire you to treat him
as a parent. You cannot conceive the pleasure and consola-
tion which I derive from being again so close to Hastings.
He likes your lines.”
After this—indifferent as they are—I am not ashamed
to own them.
In 1799, while I was yet at Westminster, though
about to proceed to Christchurch, died Clayton Mor-
daunt Cracherode, Esq., one of the Trustees of the
British Museum, a gentleman otherwise distinguished
in literature, and very justly respected by all old
Westminsters. As a regular attendant at their meet-
ings, he was deemed a fit subject for celebration at
his death ; and I, as captain, was desired to furnish
the verses. Being discouraged by the unmusical sound
of the name, I remonstrated against the hardship
of harmonizing it in Latin. My father, on the other
* Now Archdeacon of Essex.
† Dr. Cyrill Jackson.
AFTER THE PERSECUTION. 381
hand, contended that there was no difficulty in the
case, that the name was wonderfully euphonious, and
that nothing could be easier than to make Cracherode
march to the music of melodious verse ; then, after a
twinkle of the eye, and one of his quiet smiles, he
suggested this hemistich,-
“Musis Cracherodus amabile nomen l’’
Most fertile and ready was he in badinage of this
kind, almost to his latest moments. Many more of his
jests still linger in my memory, but the samples I have
given will suffice. In another style, more popular and
intelligible in general society, his success was great.
I never knew a better teller of a story, or one who had
more amusing stories to tell. Many of them related to
the humourists with whom he had gone the western cir-
cuit, or practised in Westminster Hall, when several of
his professional brethren seem to have been great oddities.
He had a leash of tales about the facetious Serjeant Davy.
The whole budget, with his occasional illustrations and
commentaries, might afford materials for as pleasant a
picture of our old English men of the robe, as Sir Walter
Scott produced of those of the ancient school in Edin-
burgh. And here—though I must as carefully separate
the venerated name of the late Sir Richard Sutton, as that
of my father, from any vulgar community with either—yet
can I not refrain from inserting an anecdote concerning
them, which has been kindly communicated to me by one
of the most valued and confidential friends of the Sutton
family. The Rev. I. T. Becher, Prebendary of York
and Southwell, has lately furnished me with the follow-
ing particulars; and has added to the obligation by
allowing me to quote his own words, which I extract
from two valuable letters addressed to me from his
residence, “Hill House, Southwell, June, 1846.” After
stating that “the friendship between the late Sir R.
Sutton and Sir E. Impey was, from their boyhood, of
the warmest and most affectionate kind,” that “Sir
Richard had travelled repeatedly over almost every
part of the continent, was such an admirable linguist,
that he could converse with every European in his native
language,” and that “he was an excellent decypherer,”
Mr. Becher continues, “One day after dinner your
*:::
382 SIR ELIJAH IMPEY's LIFE
father produced a manuscript in cypher, received lately
by him from the East Indies, and applied to Sir Richard
to decypher it, which he voluntarily undertook to do.
However, to our amusement, it was found to be a col-
lection of illegible words which Sir Elijah had taken out
of different letters addressed to him by Sir Richard
Sutton, whose handwriting, during his latter years,
became, in many parts, quite unintelligible; as he con-
tinued to write with his usual rapidity, though his fingers
were severely contracted by the gout.”
But it is time to leave these humourous trifles. Yet
will I not leave them, without asking whether these, my
father's pastimes, this my father's cheerful old age, could
characterise a man of rancorous passions, or betoken a
heart perverted by ambition,-a soul debased by bribery,
a conscience burthened with blood 7 Can the reader, by
any possibility, imagine, that Sir Elijah's life at Newick
Park, could be that which I here most conscientiously
describe it, if it had been such as his defamers represent
it to have been at Calcutta ?
The year 1801 was a disastrous one in the annals of
my dear father's life. In the autumn, after his return
from that happy visit to Daylesford, mentioned in a
preceding page, I received from him this mournful letter,
directed to me at Oxford.
“Wimpole Street, October 28, 1801.
“My dearest Elijah,
“Pity me that I am forced to communicate to you—having
nobody with me but your mother--the cruel intelligence of
the death of your brother Michael. I learned it from a kind
letter of Prince William of Gloucester,” which I found after
my return from the Admiralty this morning. e e º &
I will write again, being now too much occupied with your
dear mother, to whom I have just broke the sad tidings. I
trust she will soon bear it with greater fortitude than can be ex-
pected from her at this moment; nor can I yet bear to impart
the horrid particulars—you know I am not a good comforter.
We think of returning to Newick next Saturday. .”
Major Impey had most unhappily fallen in a duel at
Quebec. He had previously served with distinction
under General Sir Charles Grey at the capture of the
* His Royal Highness the late Duke of Gloucester, then Colonel of the
6th Regiment of Infantry, to which my brother belonged.
ATTER THE PERSECUTION. 383
French islands in the West Indies; * He left behind
him the reputation of a gallant officer.
On the very day after writing his first sad letter, my
father wrote to me again.
“I have this morning been with Prince William, from whom
I have experienced every attention, kindness, and humanity.
He read to me the paragraph of a letter from the 6th regiment
which contains the whole account of this most melancholy
event, more melancholy as it was caused by a duel with an
officer of the same regiment, a Lieutenant * * * * * * It origin-
ated in a dispute at the mess after a review. On the next day,
September 1st, he received a mortal wound, and died the day
following. On that day, Lieutenant Colonel Scott wrote to me
a letter which I received this morning. He describes himself
as an intimate friend of my poor Michael, and as his executor.
e Your dear brother's behaviour was manly and chris-
tianlike ; and it is a substantial comfort to me that I can che-
rish the strongest hopes of his eternal happiness, from knowing
the spirit in which he died. I am assured that he endeavoured
to avoid the duel, and resolved not to hurt his antagonist.
He never fired his pistol.”
Sir Elijah returned to Newick, and remained there
about six weeks, when he hurried up to town again, to
meet and provide for his widowed daughter-in-law;
who, by that time, had arrived from Canada with her five
infants. He could know no rest or tranquillity of spirit
until he saw them lodged under his own roof. At the
moment of their arrival, he was preparing for a journey
to Paris, upon very pressing business, which involved
the recovery of considerable sums of money; but
the journey to France was postponed, and for some
weeks, not a thought of his money-business appears to
have entered into his mind. He occupied himself, early
and late, upon one absorbing object, how to secure the
welfare of this afflicted family—the wife and children
of the son who had perished in his prime. I have now
before me a letter he wrote at midnight on the 27th of
November, to tell me the journeys he had gone, and the
preparations he was making.
“In a day or two,” said he, “they will be all safe under
my roof and protection. When we go to Paris, they will be at
* My surviving eldest brother, now an Admiral, served with distinction
as a naval officer in the same expedition under the command of Sir John
Jervis, afterwards Earl St. Vincent.
384 SIR ELIJAH IMPEY's LIFE, ETC.
Lovibonds, whose generosity and affection cannot be sur-
passed.* . . . . I must apologize to you for not having
written as soon as I came to town, but every moment has been
taken up with endeavours to soothe the sorrows of the afflicted
widow and orphans.”
Henry, the eldest of these children, was early edu-
cated by his generous uncle, the present Sir Robert
Affleck, Bart., of Dalham Hall, husband of my lamented
sister Maria. Sir Elijah procured for him a cadetship
to Bengal. As ensign he afterwards distinguished him-
self in the war with Nepaul, under General Ochterlony.
On the 27th of October, 1816, he gallantly maintained
his position at Mukwampoor, in a manner for which he
was publicly thanked in the general orders. See Mac
Farlane's Indian History, vol. ii. p. 199.
* My brother-in-law, the late excellent George Lovibond, Esq., of Man-
chester Square, then residing at Park House, near Maidstone. He mar-
ried my late beloved sister Martha, christened after Sir Elijah's “pious
mother,” Martha Fraser. See ante, Chap. I. p. 4.
O H A P T E R XVII.
SIR ELIJAH AT PARIS–IS DETAINED AS PRISONER OF WAR
—DEATH OF SIR ROBERT CHAMBERS–ANECDOTES AND
CORRESPONDENCE. *
AT this time Europe was enjoying the delusive truce
which goes by the name of the “Peace of Amiens.” The
preliminaries had not yet been signed; but General
Andreossi had arrived in London from Buonaparte, our
Government had sent Mr. Jackson to Paris, and a
friendly intercourse was allowed between the two coun-
tries. In consequence of Mr. Pitt's truly liberal and
enlightened commercial treaty with France, in 1786, and
of the brilliant financial schemes of M. Necker, which
it was fondly expected would bring about reform in
France, without revolution, my father, like many other
Englishmen, had invested some of his fortune in the
French funds. He had also placed money in the hands
of the Parisian bankers, Messrs. G +******* and
M****, in the intent, I believe—for I am not very well
informed about these matters—of investment in public
securities. When the tremendous revolution broke out,
these bankers held some of the cash, for which they
now showed no disposition to account. The French re-
publicans, by a very simple and summary process, had
expunged the whole of their national debt, and
refused any compensation to the creditors of the State,
whether native or foreign. But now something like
a system of order and law being established, under
Buonaparte, and his brother consuls, Cambagares and
2 C
386 siR ELIJAH IMPEY’s
Le Brun, it had been mutually agreed by the diploma-
tists of both nations, that French subjects having
claims in England, should have justice done them
here, and that English subjects having claims in
France, should have like justice there—according to
the spirit and meaning of a clause always inserted in
treaties of peace. My father's agents at Paris had
written a pressing letter, urging him to lose no time in
taking steps to recover his property.
On the 4th of December, 1801, we obtained our
passports, and a few days after were landed at Calais.
Our party consisted of my father and mother, my
youngest sister, and myself. At Amiens, we found
Lord Cornwallis in negociation with Joseph Buonaparte,
for the settlement of the definitive treaty; and, at Paris,
we were one of the first English families that had yet
arrived. The peace was then exceedingly popular there.
In nearly every class of society there seemed to be a
disposition to welcome the English; and we certainly
had no reason to complain of a want of hospitality.
Mr. Jackson had already fitted up his residence; and
we were soon comfortably established in the Hotel
Caraman. After delivery of letters of introduction we
were admitted, at the Tuileries and elsewhere, into the
first circles of Parisian society.
After the fearful storms of revolution and war, internal
and external, which had strewed the political shore with
so many wrecks, and which had so altered the fortunes
and relative position of thousands, it was a common
occurrence in Paris, at this first subsidence of the
tempest, for personages of the most opposite principles,
to find themselves side by side, or crowded and whirled
together in the vortex of the same salon. Yet, I doubt
whether Paris, even at this time, witnessed a stranger
re-union than that which I am about to describe.
Among the persons whom we met in the very mixed
society of Paris, was the ci-devant Mrs. Le Grand,”
who had lately been married to M. de Talleyrand, then
Minister for Foreign Affairs. My father renewed
his old acquaintance with her; and, through the lady,
he became sufficiently intimate with the extraordinary
diplomatist, her husband, to be one of the Englishmen
* See ante p. 174.
LIFE AND CORRESPONDENCE. 387
most frequently invited to his table. The soirées and
petits-soupers, of Madame de Talleyrand, at her charm-
ing villa of Neuilly—now in the possession of his
*Majesty Louis Philippe—were, at this period, about
the most select in France; being rivalled only by those
of the Consuless Josephine, the literary Madame
de Staël, and the fashionable and fascinating Madame
Recamier. They united not only the corps-diploma-
tique, but all such as were distinguished by their
station or talents.
At Neuilly, were to be met foreigners from every
country and court in Europe. At one of these assem-
blies, myself being present, this remarkable rencontre
took place, of persons not likely ever to have met be-
neath the same roof, under any circumstances less
fortuitous. These persons were—Mr. and Mrs. Fox,
Sir Elijah and Lady Impey, M. and Me. de Talleyrand,
Sir Philip Francis, and—Mr. Le Grand
Between Mr. Fox and my father, there had been
“foregone conclusions” too notorious to make it pos-
sible that they should meet upon friendly terms; yet,
far from there being anything of personal antipathy
in the disposition of either, I am inclined to believe,
that, if they had known each other earlier, and under
circumstances of less public heat and animosity, there
was that in the generous nature of both, which might
have attracted each to the other. In this instance, it
was pleasing, at least, to observe, that the ladies of
either family seemed to like each other, though the
gentlemen stood quite aloof. As for Francis and Sir
Elijah, they were, like Hessians and Hanoverians, in
the same camp, though, of course, without any dis-
courtesy. How Sir Philip and Le Grand looked
and felt in their present false position with M. le
Ministre des Relations Extérieures and his elevated
wife, it matters not much to inquire; but, I can
well imagine, that the whole group must have been
amusing enough to some of the by-standers, who were
acquainted with the Indian history of Madame
de Talleyrand.
The object of poor Le Grand's visit to Paris was to
solicit some profitable appointment under the French
government. This he attempted—wonderful to relate—
2 C 2
388 SIR ELIJAH IMPEY's
through the interest of the fair divorcée, whom he ad-
dressed by letter as his “chere et ancienne amie,” and
by whom, as well as by her present husband, he was in
the meantime very politely received; but his efforts
ended in a signal disappointment. The particulars have
been recently related to the public.”
As for the business which had carried us to France,
it proceeded very, very slowly. The bankers, Messrs.
G* * * * * * * * were to be moved to the painful duty
of refunding only by process of law; and from one
tribunal the cause was removed, by appeal, to another
and another.
Although my own stay at Paris was this time, but
short, by the considerate advice of my father I took up
my abode at a pension, for the purpose of improving
my pronunciation of French. A better establishment
could hardly have been chosen. M. Le Comte, an ex-
perienced teacher, and a worthy man, presided over it.
Its numbers were considerable, and consisted of French
youths of good family, though now all levelled to the
republican rank of citoyens. It had been recommended
to us by the Earl of Lauderdale, whose son, Lord
Maitland, was the only countryman I found there.
Their lordships, by the way, father and son, in point of
citizenship and republicanism, appeared to be no excep-
tions at Paris, for they both constantly wore the
tri-colour cockade.
If I remember right, it was at M. le Comte's that I
formed an acquaintance with a real living Greek,--a
man of a very picturesque aspect, and of rather lofty
* See “Our Indian Empire,” by Charles Mac Farlane, vol. 1, p. 219.
Sir James Mackintosh relates that he met Le Grand at the African
Club, at the Cape of Good Hope, in 1812, and describes him as “a gentle-
manlike old man, a native of Lausanne,”—“Memoir of the Life of Mackin-
tosh,” edited by his son. Part of the sequel of Le Grand's history I can
supply:—After the Peace of Paris, in 1815, he came to London; so did
Madame la Princesse de Benevento. His object was to publish the par-
ticulars of the lady's life at Calcutta, in revenge for his disappointment at
Batavia—her's to seek redress for the publication. I saw it; it was a
paltry book, printed at the Cape. They both applied to me. I advised
the author to suppress his work, and the Princess not to go to law.
This advice, of course, was very unpalatable to both : the lady took a
legal opinion, and the gentleman took himself off. What became of him
since I know not; but the libel shortly disappeared, and the matter seems
to have ended as amicably as before.
LIFE AND CORRESPONDENCE. 389
literary aspiration. He presently possessed me of the
idea to study the modern Greek language; and while
I remained in the land of Latin,” as they call that
quarter of Paris, near the University, where my pension
was situated, the venerable descendant of the ancient
Achaians and I became rather intimate. His name was
Polizioii.
So long as I was there, my father communicated with
me in French, as he had heretofore done in Latin and
Greek.
On the 28th of January, 1802, I left Paris to return
to my college at Oxford. I had only been a day or
two at Christ Church, when I received from him the
following letter, which re-produces my Greek acquaint-
ance, and shows the constant playfulness of my father's
disposition :-
“Paris, Feb. 2, 1802.
“The morning of the day you left us, before I was dressed,
your friend Polizioii paid me a visit. He talks of being in
England in a month. He has a work in the press, which I
fear will not secure him much profit; no less than a heroic
poem on the late war, in Homeric verse. What do you think
of my giving him a letter to Dr. Vincent 7 To the Dean of
Christ Church I dare not, without his leave. On parting, I
found myself suddenly in the embraces of the venerable and
bearded bard It reminded me of the tender scene between
old Nestor and old Mentor in the Odyssey—only we had lost
our Telemachus.
Last night Madame de Staël, General and Madame Mar-
mont, and M. Perigaux visited me. Buonaparte returned
from Italy on Sunday night; his arrival was announced by
the discharge of cannon. He has accepted the Presidency of
the new Republic, which has changed its name from Cisalpine
to Italian. I am to be presented to him next Thursday. I
left letters with Talleyrand yesterday. I cannot yet give you
any favourable account of my affairs. The report here is, the
definitive treaty is nearly concluded. Jackson tells me he
sent you a turkey stuffed with truffles, a bottle of Burgundy,
and a dozen of claret ; I hope, therefore, you did not stop
between Paris and Calais. My best respects to the Dean, and
the offer of my services about the maps and coins for
Christ Church library. .”
* Pays Latin. Rue Vielle Estrapade, Fauxbourg St. Jaques.
390 SIR ELIJAH IMPEY's
In a few days more came the following:—
“Feb. 10, 1802.
. . . . “When you write again let me know how all
goes on at Park House, whom you met in London, how you
were received at Christ Church. It was not my fault if you
exceeded your time, or if the Dean was disappointed about
the maps and coins. Be sure to let me have his farther
commissions. I have little to write of myself that will in-
terest you, except that we are all well, and that I was intro-
duced last parade-day to Buonaparte and Madame. We
dined with them. I saw Talleyrand on Sunday—he desired
me to leave a memorial in English, and promised his answer
to Perigaux. . . . . I have just received an invitation
to spend the evening of to-morrow with le Ministre de la
Police Generale de la Republique, M. Fouchè. A few days
ago Lord Camelford came here without a passport, it having
been refused in England. Buonaparte was immediately in-
formed of it, and his lordship was instantly conducted out of
the Republic.”
“Paris, March 16, 1802.
“I must still disappoint your expectation of my being able
to guess the time that my business will permit me to return
to England; but you may depend upon my not delaying it
beyond necessity. . . . Your friend Lusignan was
present when I opened your letter, and was pleased to find
himself remembered in the paragraph which I read aloud.
You are right about Polizioii, but neither you nor the Dean
need be under any apprehension of exhibiting him in the
walks and quadrangles of Christ Church. If you give me to
understand that Vincent would be flattered by producing a
real living Greek poet, a second Homer, in Dean's Yard, I
shall be proud to play the Pisistratus, and usher him into the
literary world of Westminster. . . . . I do not think
you will carry off the prize of pun from your sister University,
to whom it hath been adjudged for time immemorial. I
don’t think a Cantab could pun worse. I am interested,
however, in your account of the controversy concerning public
and private education, having always been a strong par-
tisan in the cause of which my old friend has become the
champion.* . . .”
* This alludes to “A Defence of Public Education, addressed to the
Most Reverend the Lord Bishop of Meath, by William Vincent, D.D.,
in answer to a Charge annexed to his lordship's Discourse preached at the
anniversary in St. Pauls,” &c. &c. London, 1801.
L1 FE AND CORRESPONDENCE. 391
Other letters followed in rapid succession. The two
subjoined extracts may have some little interest.
Paris, May 25, 1802.
“I do not yet know that I have much reason to congra-
tulate myself on the late judgment pronounced in my favour
against G + 4 + 4 + 4 + + and M + 4 + +. They have been at-
tempting to play the same game in England as they have done
here; but they will find difficulties there, as our laws are not so
complaisant to frauds as those of France. My memorial is
before the Ministre des Relations Exteriéures; I have lately re-
ceived much civility from him, but do not think for that reason
my affairs are likely to be more prosperous. There is a pro-
position adopted by the Senate, that Buonaparte be nominated
Consul for life: it will not stop there; the succession will be
fixed. . . . . I do not think it right to discuss politics
by the common post, especially as all things are not as I
could wish. . . . . I have reason to believe, that instead
of passports being now more easily procured, they will be
more difficult to get: I cannot explain the reason, because
I do not know that it is not a State secret. . . . . .”
“Paris, May 26, 1802.
“I forgot to tell you in my last, that if you keep your
resolution of returning to Paris, you must come as early as
possible. Buonaparte will be absent on a tour between the
15th and 20th of next month, and I wish you to be intro-
duced. . . . . Your mother is become a complete
Frenchwoman, gay as a butterfly, busy as a bee, and extend-
ing her acquaintance on all sides. . . . . . . The old
Dowager Duchess of Deuxponts, whom * * * proposed for
King of the Romans, is her most intimate friend. With Her
Royal Highness the old Duchess of Cumberland, and the
ever-blooming M********** of A *******, with Madame
Buonaparte, Messrs. Le Brum and Cambaçares she is chair et
ongle. . . . The settlement of my affairs is as uncertain
as ever : my case cannot, of course, be separated from those
of others. . .”
These delays and obstructions, and the want of com-
mon honesty in the bankers, were sufficiently vexatious,
but they could not ruffle my dear father's temper.
Early in the summer of 1802, I returned to my old
quarters at Monsieur le Comte's, in the Rue Vielle
Estrapade, and remained there during the ensuing long
vacation—dined with the three consuls, and renewed
392 sIR ELIJAH IMPEY's
my acquaintance with Mesdames Talleyrand, Recamier,
and de Staël. In the following autumn, having left my
family still at Paris, I received letters of which these
are extracts :-
Paris, Nov. 16, 1802.
“. . . . I am harrassed by the delays of the President
of their Tribunal, whom I cannot get to pronounce a judgment.
Lord Whitworth arrived on Sunday last. I called on him on
Monday; as it was a visit of mere ceremony, I do not know
what instructions he has brought out, but do not expect he
has any relative to matters which concern private claims. . . .
I am nearly come to the resolution of wintering here, you will
therefore probably pass over the sea again, I hope more
pleasantly and safely than when you went by Dieppe. . . .”
After passing the Christmas vacation once more at
Paris, I received the following on my return to Ox-
ford:—
“Paris, Feb. 13, 1803.
“I thank you for your punctuality—your letters from Ca-
lais, Dover, Park House, and Oxford. . . . . . The
season for the last fortnight has been extremely severe, but
what is worse, an epidemic disease has prevailed ever since
your departure, and has proved fatal in many instances:
Mademoiselle Charlotte, whom you must remember as dancing
so exquisitely, Princess Castel Forte, the beautiful and inse-
parable companion of Madame Gallo, a daughter of Chaptal
Casti the Italian poet, and La Harpe the celebrated author,
have fallen victims to it. . . . . We have been more
fortunate; for, I thank God, I can now pronounce that your
dear mother, who was attacked—but about whom I would not
frighten you—is now well, no symptoms having returned for
five days. . . . . Your schoolfellow, the citizen Lord
M *******, has suffered from another cause: his foot slipped
while he was dressing, and he had the misfortune to fall on
the fire stove, by which means he broke the three bones
which connect the two last fingers of the left hand. They
have been well set, and he is doing well. I am very much
rejoiced that you left Paris uninfected by the disorder. Thank
#. º your comfortable news regarding dearest Hastings and
WàI'Cl, 53
“Paris, Feb. 27, 1803.
. . . . I have letters from Harrington, in Calcutta,
dated August 20 and 21. The accounts of my dearest fellows
are so pleasant, that I must transcribe his words. ‘Hastings,
( &
LIFE AND CORRESPONDENCE. 393
who is living with me, is as attentive and diligent as you could
possibly wish. Both he and Edward are as steady and regular
in their conduct, I verily believe, as any two young men in the
College, and I have the greatest satisfaction in being able to
give you this assurance; they are both in good health. . . .”
What you say of the charming Miss Macdonald surprises,
alarms, and grieves me very much. God send she may re-
ceive benefit from Lisbon. How I pity the poor Chief Baron
and Lady Louisa! . . . .”
“Paris, March 25, 1803.
“My cause was finally pleaded on Wednesday. Judgment
passed yesterday, and that of the Tribunal of Commerce was
reversed. . . . . This is still subject to an appeal to the
Tribunal of Cassation, which passes sentence, not on the
merits, but on the errors of the judgment. . . . . At
Cambaçares's, where I was last night, Segnier, the President
of the Courts of Appeal, addressing himself to a friend of
G* * * * * * * * * said, “Nous avons aujourd’hui venge l’ hom-
meur de la justice Française scandaleusement compromis par un
jugement inique du Tribunal du Commerce.” So this matter
rests at present. But since what passed in that Tribunal,
nothing can make me sanguine on the business. . . . .
The rumours of war have induced John” to tender his services.
He left us by the diligence of Wednesday. War is mot,
however, talked of here, so much as in London ; the French
think that peace will continue. I confess I have long thought
otherwise ; yet at present I see no immediate necessity for
quitting Paris—how soon it may press, is uncertain.”
“Paris, May 27, 1803.
“ſ write merely to prevent your being alarmed by the pro-
pagation of any exaggerated accounts of the situation of the
English here. ſº An order was made on Monday
last to arrest all British subjects, belonging to the militia, or
commissioned by our King, who are within the age of 18 and
60 years. . . . . Being under none of these descrip-
tions, I conceived myself to be exempt. I have been called
upon, nevertheless, as a prisoner of war, to sign my parole of
honour not to quit Paris. . . . . All other Englishmen
who are not, like me, permitted to remain at Paris, are or-
dered off to Fontainbleau. The order is said to be made by
way of reprisals for the capture of two French ships, sailors,
and passengers, before the declaration of war. You will
* My brother, them a Master Commander.
394 sIR ELIJAH IMPEY's
see by this that our return home is more uncertain than
ever. . . . . Let the good Dean know I have the new
coins for him.* .”
Before the date of this letter, Sir Elijah's colleague
and friend, Sir Robert Chambers, who had returned
from India about the year 1800, died at Paris, after a
short illness. My father attended him in his sickness,
arranged his funeral, followed him to his foreign grave,
and did his best to assist and console his widow and
youngest daughter. Other sorrows gathered fast around
my father during these inauspicious years. In a letter,
dated June 13, 1802, he wrote to me,
“The letters I receive from England are filled with the
deaths of my friends: Kenyon, Walker, and General Adearm,
are in the list of the dead. Poor Dehaney and his wife are
dangerously ill; two of the Shuttleworths are in the same
state. I never have, in so short a space of time, been deprived
of so many old friends. Kenyon and Walker are of the
number of my best and oldest. I open my letters with fear
and trembling. Yours always have—God send they always
may—give me comfort and pleasure.”
In a subsequent letter without date, but evidently
referring to that above quoted, he writes,
“I complained to you of the losses I had suffered by the
death of my friends. I have, I fear, suffered one in addition,
that goes very near my heart. I have two letters from Mr.
R. Sutton, acquainting me that my old and attached friend
was at the point of death, on the 6th of this month. These
things, and no prospect of success in my money matters,
weigh heavy on me. . . . . Get a letter from Lord
Hawkesbury to the Minister here. Captain West will, I
know, do this, and apply to Mr. Taylor, who will pro-
cure it.”
Sir Richard Sutton died, very shortly after, at his
seat, Norwood Park, in Nottinghamshire, in the 69th
year of his age; and grievously did Sir Elijah lament
his inability to pay the last act of respect to his constant
life-long friend. On the 21st of June, 1802, he was
* They were sent by a safe hand—my late friend James Shuttleworth,
Esq., and finally deposited in the library at Christ Church.
LIFE AND CORRESPON DENCE. 395
buried in the parish church of Averham,” where a mo-
nument is erected to his memory, and inscribed with
an epitaph, written at the request of his relatives, by
the Rev. I. T. Becher, whom I have already mentioned
as acquainted with both our families. It is, therefore,
with the greater readiness that I avail myself once more
of that gentleman's authority for these additional facts.
“Sir Richard Sutton held the office of Under Secretary of
State during the Administration of Lord North, when Lord
Rochford was Principal Secretary for the Southern Depart-
ment. He was also Recorder of St. Albans, and served in
several successive Parliaments, chiefly for Boroughbridge, on
the nomination of Henry Duke of Newcastle.
“Sir Richard’s two dearest friends were, Sir Elijah Impey
and Dr. Hinchliffe, Bishop of Peterborough. . . . Their
mutual attachment originated in early youth, and continued
unbroken till dissolved by death. . . . In his will, which
was proved in Doctor's Commons about the year 1803, he
appointed Sir Elijah Impey one of his trustees, with powers
extending over the Sutton estates and the very valuable
London property.”
If my father had not been able to obtain justice at
Paris during the semblance of peace, it may be expected
he could entertain small hopes of success, when open
war was breaking out, and Buonaparte insulting our
brave English ambassador, and making prisoners of
all the British subjects travelling or residing in France
and Upper Italy. The processes of appeal and re-appeal,
which had been so irksome, were now stopped alto-
gether; and instead of getting his money, my father
was well nigh losing his liberty for the rest of his life.
The French procedure, at that time of day, seemed
to excite contempt and derision in our English-bred
lawyers. I have heard that the late Lord Ellenborough,
whom my father numbered among his friends, attended
a trial in one of the courts, either of Cassation or
Commerce; that his lordship listened very attentively
* For this intelligence, conveyed to me in a very obliging note of the
2nd of July, 1846, I am obliged to the Rev. Robert Sutton, grandson of
the late Sir Richard, and Rector of Averham cum Kelham, in the county
of Nottingham; and to the present baronet I am grateful for the kind
interest with which he has honoured this publication during its progress
through the press.
† Mr. Becher remembers their full length portraits for many years
hanging on the walls at Norwood Park.
396 SIR ELIJAH IMPEY's
to all the pleadings, and that, when they were over, and
he was leaving the court, deliberately, with his hands
held behind him, he uttered a very significant, and
by no means gently modulated—“Pooh ſ”
Even when involved in all these troubles, and dis-
quieted by the idea that he should be kept—as so
many Englishmen were—to pass the remnant of his life
under the surveillance of Buonaparte's police, separated
from his family, and surrounded by uncongenial and
inimical objects, I find him devising all manner of
means to contribute to the comforts of us who were in
England, and of my two youngest brothers, who were
in India; and, in his correspondence with me, he mostly
managed to maintain a cheerful, hopeful tone. In one
of them he is even jocular : it requires a word or two
of explanation. Up to about this time, Sir Elijah had
worn a wig, which in those days was called a “Bob,”
but he left it off because it was of the same fashion as
those which characterised the priests, and were never
worn by the laity at Paris. He had no disrespect
whatever for the members of the Gallican Church, but,
nevertheless, objected to be mistaken for a French Abbè.
He preferred, therefore, wearing his own hair; and
having made acquaintance with a very worthy eccle-
siastic, M. Boccauf, he made him a present of the dis-
carded coeffure. This happened at a moment when it
was most acceptable; and is alluded to, among va-
rious other subjects, in a letter, of which the following
is a fragment:—
. . . . “I want your Lent verses to shew to little
Boccauf; who, by the bye, honoured my bob-wig by making
it part of his decoration at the grand Te Deum. Tickets
were sent to us for Notre Dame; where, at eight o'clock yes-
terday morning, the said bob marched in solemn procession.”
Poor Boccauf! he was the humblest, mildest, and most
courteous of men. His history, as far as I remember
it, is this: during the dreadful Septembriares he had
narrowly escaped the massacre of the priesthood, and
had subsequently fallen into the most abject poverty.
In that state he became dependent on the bounty of the
celebrated rich banker R — ; who, like a proud
upstart as he was, treated him far worse than any gen-
LIFE AND CORRESPONDENCE. 397
tleman would have treated the most menial servant.
He had once the brutality to browbeat him in my
father's presence, for leaving the door open. My father
quietly shut it, and at the same time shut himself out,
never to return to the counting-house of M. R. — ;
but poor Boccauf from that moment became a constant
guest at our hotel. This paragraph of a letter to me
Soon after, mentions him once more, and for the last
time.
“Paris, May 25, 1803.
“. . . . I wish I could give you as good an account
of poor Boccauf. He was seized nine days ago with a putrid
fever, and died last might. It is an event very grievous to us.
The gentleness of his manners had gained upon our affections,
and every day more and more confirmed them.”
To such as have a real notion of the pathetic, and of
the way in which it may be entwined with, and en-
hanced by the familiar, the homely, the trivial, and, at
times, even the ridiculous, this and the following little
circumstances will excite any emotion rather than that
of derision. My brother had written very earnestly
from India for some English dogs; and in the same
letter where my father laments the loss of Kenyon,
Walker, &c., and speaks almost despondingly of his
return home, he adds,-
“As to the dogs for my dearest Hastings, you know the
impossibility I am under to procure them. Act for me in the
business, and get such as you think will please him; but you
must consult Captain West about the mode of transporting
them. Let the dear fellow be satisfied. Write to him and
tell him the situation I am in, but in a manner to give him
mo alarm, only to quiet him and my dearest Edward on ac-
count of my not being able to correspond with them and
answer their wishes. Edward—I learn from Mr. Harrington
—has drawn on me for money to buy a horse. Let him
know I have ordered the note to be paid according to his
wish.”
And all this occupied his thoughts, evidently at a time
when they must have been much perplexed by his own
situation and all this was imparted to me in a manner
plainly meant to disguise the depression of his own
spirits, in order to alleviate mine ! But what gave my
father additional uneasiness, was a report that the
398 SIR ELIJAH IMPEY's LIFE, ETC.
Consul intended to put an interdict upon all corre-
spondence and communication whatsoever between
France and England; but, a few days after the date
of the preceding letter, he wrote to me—
“I have the pleasure to inform you that our correspond-
ence will meet with no interruption, as a communication will
be kept open by the way of Bremen. This is a great comfort
to me. A letter will be five days on its way from Paris to
Bremen ; how long after to England, I do not know, but it
will arrive some time. . . . . I wish you to abate your
anxiety about us. It is a great consolation to me that you
are not here, as I think the obtaining your return would be
more difficult than mine. I feel no difference of any kind in
my situation, except that I show myself once a week at the
bureau of the police. Cambaçares, as soon as the arrest took
place, applied to the officer who had it in charge, to treat me
with every kind of attention; and I experienced it. I attend
his levées as usual, and he continues his politeness. The
levées of the First Consul I have not attended. He is absent
on his tour to Bruxelles, &c. Talleyrand is with him, and
Madame T. is gone to visit a new purchased estate in
the neighbourhood of Blois. . . . . Remember the
dogs for my dearest Hastings. . . . . I say nothing of
my return, as I would not flatter or disappoint you. I need
not say that I shall not delay it one moment after it is in my
power to effectuate it. Communicate to my dear friend
Hastings every thing concerning me that you think will be
satisfactory to him and Mrs. Hastings. . . . . Write
to your dear brothers in India directly. There are ships and
packets going every day.”
O H.A. PTE R XVIII.
THE ENGLISH SENT TO VERDUN, ETC.—SIR ELIJAH ALLOWED
TO REMAIN AT PARIS-CORRESPONDENCE CONTINUED–
HE RETURNS HOME-ANECDOTES-DEATH.
BEFoRE the close of this year the friends of the English
detends in France were thrown into consternation by
hearing that Buonaparte, in a vindictive humour, had
ordered all those prisoners to be shut up at Verdun and
other places. To remove our anxiety my father wrote
to me,
“Paris, December 9th, 1803.
“At a crisis like this, supposing that exaggerated accounts
will be propagated in England, with regard to the late order
respecting all the English in the French territory, and perhaps,
with regard to me in particular, in performance of my promise
which I gave you last week, I write to-day. It is true that
an order has been issued to remove them all, without exception,
to Verdun, Charleroi, and Biche—the last two are fortresses.
The cause I know not ; but I have great reason to believe,
from the representation that has been made to government of
my partcular situation, that it will not be carried into execution
against me. The friendship and protection we have met is
beyond what we could possibly expect. Your mother turns
out to be the most zealous, active, and adroit solicitor that I
have seen tº º But it is impossible at this
present moment to obtain a passport.
“Postscript, December 16.
“By the influence of my friends, I remain at Paris, but
don’t know when I shall get a passport.”
400 SIR ELIJAH IMPEY’s
Three long months after the date last quoted, I re-
ceived the copy of a letter from General Berthier, Mi-
nister of War, to M. Talleyrand, Minister for Foreign
Affairs, who had interested himself in my father's behalf.
It was this:—
“Paris, 22 Wentose, An. 12.
“Le Ministre de la Guerre
“Au Ministre des Relations Extérieures.
“J’ai soumis au Gouvernement, Citoyen Ministre, la de-
mande formèe par M. le Chevalier Impey pour obtenir son
retour dans sa patrie. On m'y a pas jugé que cette autoriza-
tion peut-être accordèe à M. Impey dams les circonstances ac-
tuelles. Je vous prie de faire connaitre la decision à cet
etranger en faveur du quel vous m'avez fait l’honneur de
m’ècrire.
“J’ai l’honneur, &c. &c.
“[Signed] BERTHIER.”
Underneath this copy of Berthier's letter, which is
officially short, and cold enough, my father wrote,_
“Thus my hopes are frustrated for the present. What
change of circumstances may be favourable to my demand, I
do not at present see ; but events lately passed here, and the
state of the war, certainly are very untoward. I shall lose no
opportunity of trying again, but cannot be sanguine in my
expectations of success. I am grieved and alarmed at not
hearing from England. My apprehensions increase for your
mother and sister. If any accident happens to me—and, at
my age, it cannot be an unlikely event—what a forlorn situa-
tion must they be in l’”
On the same day he wrote to that steady and most
useful old friend, Mr. West, the worthy captain of the
Indiaman, who had brought us home from St. Helena.
To him he said,
“For my own person I have little concern, but confess I
am very uneasy when I think of any accident that may
happen to me here. What a state my wife and daughter
would be in l’”
At last my dear father recovered his liberty, and thus
announced the fact to me:–
“Paris, June 20, 1804.
“This is the shortest, but perhaps the most agreeable
letter I have written to you from France. It is only to an-
nounce that I have procured passports to Hamburgh by
LIFE AND CORRESPONDENCE. 401
Rotterdam, so that this, possibly, may not be the earliest in-
telligence you may get of my being in England. All well I
all send love.”
Travelling with all expedition, as may be supposed,
with his wife and youngest daughter, through Brussels,
the Netherlands, and a part of Holland, Sir Elijah halted
at Breda; and then embarked at the nearest seaport, in
the first vessel he could find.
This vessel was little better than a boat: it was so
ill-stored, that provisions fell short during the delays
occasioned by contrary winds and stress of weather.
The party suffered much inconvenience; but the recovery
of their liberty compensated for every drawback. Their
precipitous land journey on the continent, had been
marked by no impediment or occurrence beyond the
sensation caused at every barrier between France and
Holland by the inspection of their passport; for this was
a special passport, and the very first which bore the
name of any English family, and the autograph signature
of Buonaparte, since his iniquitous tyranny over our
countrymen detained after the so-called “Peace of
Amiens.”
Uncertain how soon, and at what port they might
arrive, I had been advised to wait for them in London;
when, at the old house in Wimpole street, I had at last
the happiness of embracing them early in July, 1804,
and shortly after I conducted them to Newick Park.
The event of my dear father's arrival and reception
there, lives still fresh and joyous in my memory. As
the old family coach-and-four, which had met us at East
Grinstead, drove through the Newick turnpike, and, roll-
ing over the beautiful rural Green, passed the scattered
hamlet, in its approach to the church, we were greeted
from the steeple by a merry peal of bells; handkerchiefs
waved from every cottage window, and we were accom-
panied up Fount Hill, and through the Park lodge, by
a band of honest peasants, who ran at each side of the
coach, shouting a hearty welcome to the good old man
who had so often encouraged their labours, and assisted
at their pastimes. He did not allow his horses to be
taken from the carriage: the attention, marked, as it
was, proved already too much for his nerves. For, in
the very midst of this merriment, it cast a dash of me-
2 D
402 SIR ELIJAH IMPEY’s
lancholy over his spirits, which reminded me of the well-
known sentiment of Lucretius :
“. . . . medio de fonte leporum
Surgit amari aliquid quod in ipsis floribus angit.”
I was struck at the alteration in my father's personal
appearance, which had taken place since our last parting
at Paris.
He had now exceeded the limit of man’s appointed
age by nearly two years; and though his constitution
appeared not to have suffered materially by the shock,
yet, in addition to the accumulation of years, there was
visible in his whole expression a trace of unwonted
pensiveness, which told a tale of by-gone sorrows.
Something, however, of this effect might be attri-
buted to the alteration of his dress; for Sir Elijah, as I
have said, now wore his own grey hair. On this occa-
sion, his person still erect, his eye still lighted up with
calm intelligence, presented altogether the aspect—
such as it continued almost to the conclusion of his
days—of a most venerable, hale, and hearty old English
country gentleman.
Alighting from his carriage, and surrounded by part
of his family assembled to meet him at Newick, it
would be impossible, as he smiled upon us, to have
imagined at that moment, a countenance more indi-
cative of benevolence and paternal love. In a few days
he was welcomed home, in turn, by all his respectable
neighbours, in a country where an occurrence like this
could never fail of exciting a sentiment of heartfelt
congratulation.
It must have been about this time that, hearing of
his return from France, his old fellow-traveller, Master
Popham, wrote to him, proposing to make him a
gratulatory visit. It was, of course, most joyously
accepted; but whilst we were all anticipating the merri-
ment of the meeting—on the very day when he was
expected—came news of his sudden death. He had
mounted his horse—for such still was the manner of
his journeying—and fell from his saddle in an apoplectic
fit. Thus was dissevered the last link of that chain
which had held together three congenial spirits, which,
for forty years, nothing but the necessary separations
LIFE AND CORRESPONDENCE. 403
of life could have placed at a distance from each other,
and which nothing but death could ultimately disunite.*
Irreparable as these bereavements were, my father
mourned as one not insensible to many remaining com-
forts and consolations, and hailed as he had been to
his happy home, by other objects so deservedly dear to
him, he soon shook off this transient sorrow, and
easily fell into his old familiar employments in the
garden and the farm. But, alas ! this was a state of
happiness not long to last without alloy; it was a pre-
lude only to the bitterest family affliction—severe as
others had been—which it was his lot ever to endure,
the premature death of his favourite son. I use the word
advisedly: there was no undue or inequitable preference
in Sir Elijah's treatment of one child over another; yet,
by an irresistible impulse of nature, and a fondness well
warranted by merit as well as instinctive affection, he
was attracted to one in particular, and marked him as
his “best beloved.” I have already twice mentioned the
melancholy foreboding with which Sir Elijah parted
with my brother Hastings in 1801; but I have not yet
alluded to the many endearing qualities by which
Hastings especially had won upon his father's heart;
mildness of disposition, accompanied with rare come-
liness of persont, and a singular modesty of manner,
were, perhaps, the most prominent of these charac-
teristic endowments; but the latter was often carried to
such an excess of diffidence, as to create a painful
apprehension, lest it should impede his advancement,
and frustrate the object of his going to India. In
allusion to this anxiety, my father wrote to me just
* See ante, Chap. I. p. 11. The reader may remember the name of
Alexander Popham, as one of my father's fellow-travellers on the Conti-
ment in 1766-7, when they all sat for their busts to Nollekens. They
were executed in terra cotta, and two of them are preserved in our
family; the third, which was Popham's, I have lost sight of; but I have
been told by my friend, the eminent conveyancer, Henry Bellenden Kerr,
Esq., that he remembers it, not many years since, in the possession of
the representatives of his grandfather, the late John Gawler, Esq.
† My father was a good Homeric scholar, and seldom omitted to apply
some passage of his favourite author, wherever it was appropriate to his
subject. In allusion to my poor brother's personal beauty, he would
often quote these lines,
M% uot Sæp épata trpáqepe Xpwoºs 'A6počírms.
Ośrot atroSAmt #st Osóv épikvöéa 6&pg
'Oora'a key abrol Śāoriv, Škov 6' of it av rus éAoiro.-Iliad, iii. 64.
2 D 2
404 SIR ELIJAH IMPEY’s
before he left Paris, a letter, from which I extract this
short paragraph:—
“Letters have reached me from India. Sir Henry Russell,
one of the judges at Calcutta, says, that dearest Hastings
dined with him once soon after his arrival; but that no attem-
tions or solicitations could allure him to come a second time.
Sir Henry speaks most handsomely of his general demeanour;
God send that the spirits and activity of my dear fellow Ed-
ward, may be instrumental in conquering a timidity so op-
pressive to my poor boy, as to be a serious drawback on his
advancement l”
But another, and a sadder letter, from India, by the
friend and constant correspondent of our family, John
Herbert Harrington, announcing the death of my
brother, came to my hands in England, though not
until many months after my father's return from Paris.
More than one had, unhappily, been addressed there,
giving an account of my brother's declining health, but
had never reached my father. This is part of Har-
rington's letter to me:—
Calcutta, Feb. 14, 1805.
. . . . . . Not knowing whether your father may
be in England or in France, when this reaches you, and wish-
ing to convey the sad intelligence it contains to you, and
through you, to the rest of your family, I think it advisable to
send the enclosed for your father, open for your perusal; and
beg you will either forward or deliver them to him in such a
manner as may appear to you proper.
“I will not repeat the melancholy tale they relate, but
rely on your firmness of mind to support both yourself and
your dear relatives. I further inclose what I think of having
inscribed on our dear Hastings’s monument. 55
& &
Disconsolate at first, my poor father could not, for
many months, speak of his heavy loss save in prayer
and fasting. I speak not figuratively, for, to the end of
his days, on every anniversary of this mournful event,
my father strictly fasted. Among his papers, after Sir
Elijah's death, together with the prayer already no-
ticed,” was found a relic, which he had never shown to
any of us. It is an elegy, consisting of some eighty
couplets. I shall copy a few only at the conclusion, to
* Ante p. 392.
LIFE AND CORRESPONDENCE. 405
show that, like many elegant scholars, and men of feel-
ing, he had vented the first paroxysms of grief in pa-
thetic verse :
tº G e Ah! then, farewell to thee,
My best beloved / this unavailing tear
Adorns my grief, as sable plumes thy bier:
And lo! fast fleeting hitherward, I feel
The shadowy forecast of their darkness steal
On this hoar head, that thrice hath told its score,
And whitens now with twice seven winters more.—
sk :k >k #: >{< >{< >k >{< >k
O, ever hovering in my fancy's sight—
My dream by day, my vision in the might !
Know—for ’tis sure in heaven no sin to know
Some touch of sorrow for a father's woe—
Know, that I bless'd thee with my dying breath,
Bless'd thee in thought—the “small still voice of death;"
Know that in pious hope I sank to rest,
And blessing thee, am numbered with the blest.
>k :k >k >k >k >{< :k >k >{:
For thus I reason'd with my faltering heart:
Let not despair give death another dart;
Nor vainly grieve, as hopeless mourners use;
Be firm in faith, nor dally with the muse.—
All bliss on earth is borrow'd, not our own;
Shall man repine, if heaven resume the loan?
But there’s a lasting treasure-house—a store
Once freely given, to be reclaim’d no more.
Thus mingling hope, grief’s bitterest dregs among,
I thank my God that thou wert lent so long;
That lost awhile, my best beloved shall be,
For aye restored, mine own eternally.
In the meantime I had been instructed to answer
Harrington's letter; but so soon as Sir Elijah had suffi-
ciently recovered his composure, he thus addressed him
himself:—
& &
e é º ºs Think everything that gratitude and pa-
termal affection, under the heavy blow that oppresses me, can
dictate, as hereby expressed, for all the obligations which
our kindness has imposed upon me. . . . . My son
Elijah has, by my desire, written to you; for it was at a time
when it was too much for me to write myself; and ill am I
qualified to do it now. But to prevent misunderstanding, it
is absolutely necessary to make the effort. . . . I am told
406 SIR ELIJAH IMPEY's
there is a bond to Sookmu Roy for 17,000 sicca rupees,
with interest at 10 per cent.; oblige me by taking up, as soon
as possible, sufficient to discharge the debt with interest.* . .
My son wrote likewise about my dear boy Edward: but let
not anything which escaped me, in the agony of my grief,
operate either on him or you so as to influence your advice or
his conduct to his prejudice. . . . . My senses have
recovered sufficient calmness to see that this fatal accident
does not increase the chances of danger to him. Should he,
however, feel himself unhappy where he is, still more, should
he sicken, or be likely to suffer seriously from the climate,
let him by no means waver or lose time in returning. He
will be entitled, at my death, and that of his mother, to an
equal share of my property with my other children; and
during my life I will make him as comfortable as I can: but
do not estimate the provision, either now or ultimately, be-
yond a very moderate annual sum, or in any degree equivalent
to his present pecuniary condition. What I mean is, supposing
him to be anxious to return, from whatever cause, that he
should not consider himself, poor boy! a prisoner in India.
Staying or returning, I have provided, so that he shall not
want the utmost it is in my power to bestow. 3 5
About the same time, my father likewise addressed a
letter to his surviving son in India, couched in such
pious and affectionate terms, that I could never pardon
myself for not alluding to it, though it is far too long
and personal for me wholly to transcribe. The follow-
ing is a very short extract:-
“How little did I expect that I could ever feel reluctance
in sitting down to write to you! But the fatal event conveyed
to me by letters from India on the 4th of last August, has so
depressed my mind, that though I have, still remaining in
you, so dear an object of affection there, yet have I not been
able to turn my thoughts to Bengal, without emotions which
have quite paralysed my endeavours to express myself with
any tolerable consistency. . . . . I have not—perhaps
never may—recovered from this shock. But I kiss the rod
with which it has pleased the Almighty to afflict his sinful
creature. . . . . Should any symptom of disorders
incident to the climate attack you, take instant alarm—lose
not a moment—haste to your affectionate parents and
friends. . . . . You have now attained to an age when
your understanding must be sufficiently mature to require no
* Ante, Chap. I. p. 17.
LIFE AND CORRESPON IDENCE. 407
peremptory advice; yet, listen with patience to the counsel of
a fond and anxious father. . . . . . I see by my most
admirable friend Harrington’s correspondence, that a debt
contracted by your poor brother to a native, was an ingredient
in his consideration against the propriety of leaving India for
the recovery of his health—a mistaken, yet a most honourable
motive! This makes me the more restlessly anxious on your
account. . . . . The ease with which money can be
procured from native brokers, may, I fear, make you less
scrupulous in applying for it. . . . . There is another
consideration, which I must assuredly have enforced in many
of my preceding letters. O, my dear boy read and reflect
over them, call to mind all the injunctions which I endea-
voured to impress upon you both—alas ! how ineffectually
in one instance—before you left this country. Once more
observe : being indebted to a native, you are ever after in his
power. It has repeatedly happened, in my own knowledge,
that the master, thus embarrassed, has been urged by the in-
fluence of his banyan, to do, or permit to be done, things very
unjustifiable, and which nothing but such coercion would have
made him consent to. . . . . Let me conjure you, by
the affection you bear to me, by the value you set upon your
own credit, honour, and virtue, should you ever be so involved,
set about disengaging yourself at once from fetters so dis-
graceful, lest they jeopardise your fortune, fame, and even
your existence. . . . . . That God may bless you, that
He may sanctify to you every means of honest, active in-
dustry, to accelerate your return, and to bless my eyes, ere
they close in death, is my constant prayer. . .”
But the efficacy of my father's religious resignation—
his fastings and his prayers—was best demonstrated, to
the few who witnessed them, by the calm which ulti-
mately succeeded them. Time likewise administered its
wonted relief; and the same merciful Providence which
had endowed him with ſortitude to surmount so many
other trials of life, supported him in this. About a year
after, Sir Elijah had so far regained the composure, if
not the perfect command of his spirits, as to write to
me at Oxford, where I had resumed my residence, al-
most as cheerfully as before; but his epistolary wit was,
ever after,
“Sicklied o'er with the pale cast of thought.”
“I do not think,” he writes, June 20, 1806, “that you
have just cause for censuring me as a bad correspondent.
What are the subjects that a retirement like mine can suggest?
408 SIR ELIJAH IMPEY’s
The most agreeable circumstances that can attend it are
peace, tranquillity, and a succession of quiet enjoyments, that
can have little variation, and therefore, few objects to be de-
tailed by post; yet I can rejoice in some few topics of
interest to us both. I have lately heard that dearest Edward
is well, and pleased with his new appointment. I owe the
intelligence to the kindness of Col. Toone; but the pleasure is
sadly abated by my having now only one son in India to hear
of . . . . I thank you for your epigrams, but cannot
answer your challenge : I have no points left, even my shoes
are square toed.”
From a series of subsequent letters, and from per-
sonal intercourse afterwards—almost constant up to
the autumn of 1809—I collect that, during the three
remaining years of his life, till within six weeks of his
dissolution, my father enjoyed his usual health and
spirits. He had once more rallied, and was himself
again, resuming his customary habit of communicating
with his friends, both far and near. The early part of
the preceding year had been spent in a round of social
visits; first to Daylesford, next to the Priory, in the
Isle of Wight, at that time the seat of his old contem-
porary at the bar, Judge Grose; thence he crossed over,
to Southampton and skirting the New Forest, made a
detour to Melchet Park, near Rumsey, the delightful
residence of Major and Mrs. Osborne. The Major
was an old India acquaintance, remarkable in his at-
tachment to Mr. Hastings and my father. To the
former he had raised a beautiful memorial in his park,
in the form of a Hindu temple. But to both these
friends he had adhered through all their troubles, with
the same steadiness and perseverance which distin-
guished his own most arduous military career. His
indefatigable friendship followed them into their retire-
ment, nor ceased till it was dissolved by death. His
testimony outlives both him and them; for at his de-
cease, Major Osborne left a large collection of papers,
bearing witness to their merit. Many years since, I
was honoured by a commission from the Major's
amiable and still surviving widow, to deposit those
documents in the Library of the East India House.
Some of them consist of autograph letters from per-
sons of the first eminence, chiefly in honour of Mr.
LIFE AND CORRESPONDENCE. 409
Hastings; the most prominent of them, perhaps, is a
letter from the late Lord Chamberlain, the Earl of
Morton,-the more valuable, as it bears record of his
lordship's never having omitted to attend the trial of
the Governor General for a single day. The noble earl,
as is well known, sat among the Peers of England, as
Baron Douglas, of Lochleven ; and, at Mr. Hastings's
acquittal, on the 23rd of April, 1795, voted him
“not guilty of any one charge.”
I pride myself on my acquaintance with the present
Dowager Countess of Morton, and have heard the
facts attested by her ladyship, with an affability
which adds another grace to the value of these testi-
monials.
I cherish the remembrance of my father's last visit to
Melchet Park; nor will I leave it, without recom-
mending to certain historians, a careful perusal of Major
Osborne's papers at the India House.
From Melchet Park the travellers returned through
Salisbury and Chichester, &c., to Newick, where I
joined them at Christmas, the last which my dear
father ever celebrated, as was his custom, with the fes-
tivities of that season. The company then assembled
at Newick Park, besides the family residents, were Mr.
and Mrs. Hastings, the Halheds, my especial friend
James Boswell, and Tiberius Cavallo. -
The worthy philosopher had by this time become an
almost constant inmate; and had he now been ques-
tioned by any inquisitive dowager touching his country-
house,” he might, with some colour of truth, have pointed
to Newick Park. He was still our master of the revels,
and, into these Christmas gambols, had introduced one
of Italian origin, grafted upon the Dutch concert. It
was enacted after this wise : the players seated round a
table pretended to play upon various musical instru-
ments, each confining himself to some particular one,
and, with suitable action, accompanying them with a sotto
voce imitation of their respective sounds. But the inge-
nuity of the amusement lay in the leader—Cavallo—
whose province it was to elicit forfeits from the rest. This
was done by pointing with a scroll of paper, in the
fashion of a Maestro di Capella, to every mock musician
* See ante, Chap, XVI, p. 366.
410 SIR ELIJAH IMPEY's
in turn, who was thereby summoned to perform a solo;
while the rest, who had before been playing in chorus,
were to remain quiet. These signals were purposely made
in such rapid succession, as to perplex those to whom
they were addressed; and if the performer, so applied to,
did not instantly respond to the summons, or if, in his
hurry, he assumed an instrument not his own, he for-
feited a pledge, redeemable by a penalty imposed upon
him by the party whose instrument he had assumed.
It was concerted that Mr. Hastings should play the
organ, Sir Elijah the violoncello, Halhed the Jew’s
harp, and Boswell the bagpipe; but, either by mistake,
or contrivance, Boswell and my father interchanged
instruments; so when the forfeits were cried, Bozzy
called upon my father for a Greek or Latin speech. This
he obeyed, ore rotundo, by repeating “Barbara cela-
Tent Darii Ferio Baralipton;” but, in revenge, Jemmy
was presently commanded to translate it. How my
friend got out of the scrape I do not exactly recollect,
but I remember that he began by declaring, “It would
be barbarous to conceal the meaning of those myste-
rious words.” This is, perhaps, the last pleasantry of the
sort in which my dear father was known to take a part.
The decline, however, of these and similar harm-
less habits, was very gradual in him; and as, in like
manner, his strength and inclination to bodily exercise
declined, he resorted more and more to his books.
Besides the current publications of the day, he now
renewed his acquaintance with the classics; and while
his old school companion, Mr. Hastings,” was quoting
Young, and translating Lucan, Sir Elijah was refresh-
ing his memory with Homer and Virgil. In the even-
ing he used to read Shakspeare aloud for our enter-
tainment: but when his voice grew feeble, and his
spectacles no longer served him by candlelight, a game
at whist or chess sometimes supplied their place. In
* I have omitted to mention that Mr. Hastings was an admirable
epigrammatist. It was on the occasion of this visit that he amused us
with the following:—
“A serpent bit Francis, that virulent knight:
What then P 'Twas the serpent that died of the bite l’”
Which I translated thus:—
Dente venemato stimulatur Zoilus anguis.
Quid tum ? mordet adhüc Zoilus, anguis obit.
LIFE AND CORRESPONDENCE. 411
the daytime, his favourite Homer, now more and more
frequently, gave place to the Greek Testament; and I
have before me an old Dutch edition, which he was
latterly in the habit of comparing with Paley’s “Horae
Paulinae,” and Le Clerc's “Harmony of the Evan-
gelists.” They are all well worn, and scored with his
marginal notes. I find also scattered among his papers,
and in the library which I inherit, fragments written in
a beautiful Greek hand, and a ponderous common-
place book crowded with extracts, in different lan-
guages, under various heads.
The mention of Homer reminds me of a remarkable
instance of my father's humanity to animals, coincident
with his approaching end. Sir Elijah had a favourite
house-dog—Hector—a noble animal of the St. Ber-
nard's breed. It is a well known peculiarity in that
species, that they often attach themselves exclusively
to their owners, and as often take capricious dislikes to
other people. Hector was beyond measure fond of my
father, but could not bear his bailiff. For this reason
he was, during the day, chained up, but regularly ad-
mitted to take leave of his master every night, just
before he retired to rest. Latterly this custom had
been discontinued, owing to his boisterous caresses,
which grew more and more troublesome, as my father's
illness increased. This the poor animal seemed to
resent, grew sullen, refused his food, and was thought
to be dangerous. Sir Elijah ordered his servants to
watch and secure him, but by no means suffer him to
be destroyed. One day my father had been looking
into the “Iliad,” and when he came to a passage in the
23rd book, he sighed, and murmured to himself, “poor
Hector l’ Supposing him to allude to the Hector of
Homer, I looked over the page, and found that the
lines related to the dogs which the poet describes as
lying, 27.006&vre; regi 09/06%—fretting in mind—before the
* “Aštov 3’ &v Träpatów we köves trpcºrport 68pmoiv
Opangal epv80 u, Étret ſcé tis Ščá; x2)\icó
Túpas, he 8&A&v pé6éover 69pubv čAmtat,
"Ovs tpéqov év weyāpoioi Tpotrečjas truńawp8s,
Of k’spiov alua trióvres, &\ſga'avtes repl 6vuá,
Ketorov't 'ev trpo6%poigt.”
Which last words Pope incorrectly translates—“famished dogs late
guardians of my door.”
412 SIR ELIJAH IMPEY’s
gates of Priam's palace—when the good old king was
prophecying his own death. On the morning after
Sir Elijah's decease, poor Hector was found dead in
his kennel.
It was not till September, 1809, that my father was
seized with alarming symptoms of his mortal malady.
In tenderness to our feelings, he had made light of his
complaint; though, there is reason to believe, that he
was well aware of his danger. He consented, at last,
that I should accompany him to consult Dr. Baillie, in
London. The Doctor, to test the steadiness of his pace,
desired him to walk across the room; when, as if to
convince us that there was little the matter with him,
the dear old man assumed a sturdy gait, and laughed
at his own efforts at activity. But Baillie, who never
disguised from his patients their real state, and who was
accustomed to explain it by some ingenious simile,
compared my poor father's condition to that of a man
that had received a blow from a giant, who stood over
him, in an attitude which threatened a repetition of the
attack. He defined the nature of the disorder to be
an effusion of serum on the brain, not uncommon with
those whose mental powers had at any time been too
severely tasked. The reader will here remember, that,
in an earlier part of this volume,” I have alluded to
the occasional return of the symptoms of my father's
illness at Calcutta, in 1778-9,--a numbness in the
hand, and an indigestion, which never entirely left
him. On our return to Newick, Sir Elijah rapidly de-
clined; yet, in more instances than one, he manifested,
even in this state, an extraordinary preservation of
intellect, and correctness of memory: the first showed
itself in the dictation of a difficult letter, to an attorney,
on the renewal of the lease of Newick Park, which
terminated in this year; the second occurred in the
quotation of a line in Horace, f while we were applying
leeches to his temples. But the last and most affecting
trait of his character, while sense and sensibility yet
remained, was displayed in the tenderness with which
he treated, in his very last moments, a female ser-
vant, who assisted in removing him from the sofa to
* Ante page 269.
f “Non missura cutim nisi plena cruoris hirudo.”
LIFE AND CORRESPONDENCE. 413
his bed. He had leaned upon her bosom, so as to
produce a slight ejaculation of pain,_* Did I hurt you,
my dear?” were his last distinguishable words.
Sir Elijah Impey expired about midnight on the
1st of October, 1809, in the seventy-seventh year of his
age, surrounded by an afflicted family, in perfect charity
with all men, and in communion with the Holy PRO-
TESTANT CHURCH of CHRIST, established in these
realms. His remains are interred in the family vault
at Hammersmith, where a plain monument is erected to
his memory.
I shall attempt no summary of my father's character.
If it has not been sufficiently elucidated in these pages,
all that I could add would be worse than superfluous.
But, if, after a fair examination of this book, it shall
appear to the candid reader, that Sir Elijah Impey
was not only not the man, but the very reverse of
the man, he has been represented by his enemies to
have been ; if I have succeeded in establishing, upon
good evidence, facts, which it has been attempted to
controvert upon no evidence at all; if, upon such
examination, it turns out that none except the un-
candid remain unconvinced; then shall I have accom-
plished the object of this Memoir; for then, I shall
have fulfilled a double duty,+my duty to God, and
my duty to man : to God, in obedience to an injunction,
not the least solemn upon the decalogue; to man,
in the vindication of HISTORIC TRUTH AND JUSTICE,
not the least sacred of all worldly obligations.
But whether I succeed or fail in the main object
of this work—an appeal to the public against a public
wrong—at least I shall have completed a secondary,
but no unimportant one,—the satisfaction of my own
CONSCIENCE,
“Liberavi animam meam.”
APPEND IX.
No. 1.
ExTRACTs from a “Copy of the proceedings of a general
quarter session of the peace of oyer and terminer, and
general gaol delivery, holden for the town of Calcutta, and
precincts thereof, on Wednesday, the 27th day of February,
1765,
** BEFORE
“Charles Stafford Playdell, Esquire, President.
John Burdett, o
George Gray, } Esquires.
“Opened the Court, and the Sheriff delivered in the pre-
cepts: Swore in the following gentlemen to serve on the grand
Jury:—
“James Amyatt, Esq., Foreman,
Messrs. Robert Gregory, Russel Skinner,
Jas. Lister, Patk. Maitland,
Archibd. Keir, Nichs. Grueber,
John Gould, Willm. Maxwell,
Robert Dobinson, Hugh Baillie,
John Charnier, Alexander Scott,
Thos. Woodward, Jas. Whyte,
William Magee, John Holme.
“Swore in Randall constable, to attend the grand jury:
Sent an indictment against Radachund Mettre for forgery—
The grand jury returned it a true bill.
“Set Radachund Mettre at the bar, and arraigned him on
the following indictment :-
“Town of } The jurors for our Sovereign Lord the
Calcutta, ss. ſ King upon their oath do present, that Rada-
chund Mettre, of the town of Calcutta inhabitant, on or about
the 21st day of November, 1764, in the fifth year of the
reign of our Sovereign Lord George the Third, King of Great
Britain, &c., at the town aforesaid, did feloniously forge a
codicil to the will of one Coja Solomon, late a merchant of
416 APPENDIX.
Calcutta, with an intent to defraud the said Coja Solomon’s
estate of the value of six thousand Arcot rupees, and did
feloniously present the said codicil, against the peace of our
Sovereign Lord the King, his crown and dignity, &c.
“Witness,
“Andrew Carapet,
Coja Assim,
Maria Matruse.
“To which he pleaded not guilty.
“Swore in the undermentioned persons to serve on the
petit jury:
“Messrs. William Smith, Matthew Miller,
Geo. Scott, Whitall,
William Dobbins, George Sparks,
George Moore, Paddey,
Benjn. Randall, Joseph Panton,
William Swallow, Jno. Martin.
“Proceeded to trial, and swore in Andrew Carapet evidence
for the King,” &c. &c.
[Here follows the trial, printed at length in the Appendix
No. 2 of Sir Elijah Impey's Speech, &c. London:
Stockdale, 1788. It is unnecessary to recite more than
the issue of this trial.]
“The court summed up the evidence to the petit jury, and
they withdrew.
“Swore in Smith, constable, to keep the petit jury.
“The petit jury came into court, and returned the follow-
ing verdict :
“That Radachund Mettre is guilty of the forgery laid to
his charge.
“The prisoner being set to the bar,
“The chairman pronounced the sentence of death on him
in the usual form.
“Ordered him into the condemned hole.
“The business of the present sessions being over, dismissed
both juries with thanks for their services; and adjourned the
sessions to the 27th day of May, upon a fresh summons.
“(A true copy.)
“EDwD. BABER,
“Clerk of the Peace.”
This trial and sentence of death of a native for forgery, on
the 27th of February, 1765, supplies a full precedent for the
proceedings against Nuncomar, in 1775. It proves also the
complete publication in Calcutta of the law, 26 Geo. II.
APPENDIX. 417
No. 2.
FAC-SIMILE Copy of the translation of the Petition of Num-
comar, delivered at the desire of the House, by Sir Elijah
Impey, during his defence at the Commons’ bar. The original
translation is printed in the common type ; the words printed
in italics are inserted in the original in the hand-writing of
Mr. Hastings.
“To the Governor General and Council.
“WITHIN these three soubahs of Bengal, Orissa, and
*from- have honor
Bahar, Athe manner in which IAlived and the character and
credit which I have possessed.—% all * Something is
y. Formerly the Nazims of, these soubahs ... %
CO7???)/62/6 &/le
afforded attention and aid to my good name ºp
$672S6.
59 W-99}-S9}}{4}–99 ſºlsk Gººglº-3
presence of the neceived a
and from the king of Hindostan I have a munsib of five
administration
thousand, and from the first—of the company’s -government,
in consideration of
* my good wishes to the king, the gentlemen
had the direction of the affairs of this place, and at this time the
who were in power here, and the present governor, Mr.
did hold and do hold me in
Hastings, who is at the head of affairs, r
did.accasian any loss to 07”
respect—me. —I was never-disloyal to the state, -nor—com-
proceed from me
of
mitted any oppression –upon the Ryots. For the fault of
at this time a “ g
just —ia—a-gºall-degree
representing, some facts which I-just—made—known for the
the-edeese relief, I in a small degree made known
interest of the king, and welfare of the people, Amany English
gentlemen have become my enemies; and, having no other
-qf the highest-
means to conceal their own actions, deeming-it-highly-politick
my destruction of the utmost expediency 7"evived
* for themselves–to–make—an—ead–of–me. An old affair of


2 E
4.18 A PT END IX.
formerly been found to be
Mohun Pursaud's £ which has!, repeatedly beer--declared-
false ; and the governor, knowing Mohun Pursaud to be a
motorious liar, turned him out of his house; #
themselves becoming his aiders and abettors and
revived; and ing—hi * - 3.
jething—with-Lord Impey and 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 administra-
tions of justice before; and taking the evidence of my enemies
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 pro-
ceeded from me. Many principal people of this country, who
were acquainted with my homesty, frequently requested of
the judges to suspend my execution till the king's pleasure
should be known, but this they refused, and unjustly take
away my life. For God sake, gentlemen of the council, you
who are just, and whose words are truth, let me not undergo
this injury, but wait the king's pleasure. If I am unjustly
put to death, I will, with my family, demand justice in the
next life. They put me to death out of enmity, and from
partiality to the gentlemen who have betrayed their trust;
and, in this case, the thread of life being cut, I, in my last
moment, again request that you, gentlemen, will write my
case particularly to the just king of England. I suffer, but
my innocence will certainly be made known to him.”*
* The original petition was first laid before the Governor General and
Council by Sir John Clavering, August 14, 1775, nine days after the
execution of the convict, and burned, by their order, under the inspection
of the Sheriff of Calcutta, on the 21st.
A PPFN DIX. 419
No. 3.
ExTRACTs from Copies of the Addresses presented to Sir
Elijah Impey, and to the Supreme Court of Judicature, 14th
and 27th July, 1775.
“To the Honourable Sir Elijah Impey, Knight, Chief Justice
of the Supreme Court of Judicature.
“My Lord,
“We, the grand jury for the town and districts of Calcutta,
beg leave, before we separate, to offer in a body, through your
lordship, our sincere acknowledgments to the court for the
great attention they have been pleased to show us, through
the whole course of an unusually tedious sessions, in accom-
modating our business as much as possible to our convenience,
and in affording us every remission from it of which the
nature of our service would admit.
“Allow us further, my lord, to express on this occasion
the satisfaction we feel in possessing in your lordship a chief
justice, from whose abilities, candour, and moderation, we
promise ourselves all the advantages which can be expected
from the institution of the Supreme Court.
“May you long continue at the head of the court, to add
to that esteem for your character which your conduct has
already acquired.
“Town Hall, July 14, 1775.
“(Signed) G. HuRST,
CHA. BENTLY,
ALExE. WAN RExTEL,
&c. &c. &c.”
“To the Honourable Sir Elijah Impey, Knight, Chief Justice
of the Supreme Court.
“My Lord,
“We, the free merchants, free mariners, and other inha-
bitants of the town of Calcutta, deeply affected with a sense
of the manifold benefits which are derived to this settlement
from the institution of the Supreme Court of Judicature, beg
leave to wait on your lordship, to testify before you, in this
ublic manner, our gratitude to our most gracious sovereign,
and to the legislature of Great Britain, for the inestimable
obligation they have thus conferred upon us. Far distant
from the mother country, and necessarily * of a con-
T.
420 ATPPEN DIX.
stitutional protection, which other colonists enjoy in the
assembly of the people, we were also left under a feeble and
incomplete administration of the laws of England till your
arrival in Bengal; we then had the happiness to see the
power of the law firmly established above all other powers,
and an equal measure of justice distributed to all mem.
“At the same time, my lord, that we address our warmest
expressions of thanks to your lordship for the security to our
persons and properties, which we enjoy under the protection
of the court, it is with unfeigned acknowledgments we do
justice to the merits, integrity, and abilities of your brethren.
The eminent station to which your sovereign has been pleased
to call you, puts you in a point of view more exposed to the
observation of the people, and renders your talents and virtues
more conspicuous. We have all of us had occasion, many of
us as jurymen, to observe, through the course of the full
exercise of the various jurisdictions vested in your court, the
candour, wisdom, and moderation with which you have con-
ducted all their proceedings. It is not alone that intimate
acquaintance with the laws, which you display on these occa-
sions, that attracts our admiration, or that superior sagacity
in detecting the sophims which are advanced under their
colour; but the steady unshaken conduct which you pursue
in maintaining the dignity and independency of the King's
court, unawed by opposition of any sort, in impartially grant-
ing to every man, under all circumstances, the protection to
which he is legally entitled, and in repressing the spirit of
litigiousness, and the chicanery and quirks of practitioners.
“We particularly felt our breasts glow with the warmest
sentiments of gratitude when we heard you, from the highest
seat of justice supported by the unanimous voice of your
brethren, reprobate with every just mark of indignation, the
insidious attempt to introduce into practice the granting of
blank subpoenas for the attendance of witnesses; so detest-
able an instrument of oppression, in the hands of wicked or
powerful men, might have produced the full effects of the
edicts of the inquisition, or the lettres de cachet, the most
arbitrary state. Our reputations, our fortunes, and perhaps
our lives, would have been in that case left at the mercy of
every profligate informer, who might have been detached into
the country, loaded with blank subpoenas, to fish for evidence
in any suit or prosecution, among an abject and timid people,
ignorant of the nature of these writs, who would have consi-
dered them merely as mandates from authority, to swear as
they were directed, and being ready to sacrifice truth, honour,
and religion, to the dread of power.
“We cannot also refrain from declaring how much we es-
APPENDIX, 421
teem ourselves indebted to the pains you bestowed during the
course of the late tedious and important trial, in patiently in-
vestigating the evidence, and tracing the truth throughout all
the intricacies of perjury and prevarication, and in finally de-
tecting and putting in the way of condign punishment the
cloud of false witnesses, who seem to have acted from concert,
and to have had hopes of introducing into the court, under
the shelter of an unknown tongue, and concealed forms of
oath, a general system of false swearing, to the total subver-
sion of all reliance on evidence, and to the utmost danger to
the life and property of every man in these provinces.
“Permit us them, for our own sakes, and for the sake of all
his Majesty's subjects in Bengal, to express our most hearty
and sincere wishes for your health and prosperity, and that
you may long continue among us to fill that chair where you
now sit, with much lustre, and so much to our advantage,
and to that of the whole settlement. º
“Before we withdraw from your presence, we have one
suit to prefer, which we hope in kindness will not be denied
us: we request your lordship, that you would be pleased to
sit for your portrait at full length, to the painter whom we
shall appoint to draw it; we propose to put it up in the town
hall, or some other public room, merely as a gratification to
our own sentiments of esteem and respect for you, well know-
ing that your virtues, and the services you render to the
public, will erect a much more durable monument to your
name and character in the memories of the latest posterity.
- “C. S. PIAYDELL,
John Robinson,
Jos, PRICE,
&c. &c. &c.
“A true copy.”
“To the honourable Sir Elijah Impey, Knight, Chief Justice
of the Supreme Court of Judicature, and the Judges
thereof.
“My Lords,
“We, the Armenians of Calcutta, in full conviction of many
salutary effects already resulting from the administration of
English laws in this settlement, and in certain expectation of
still more advantageous consequences, beg leave to express
our warmest sentiments of gratitude to that power by whose
interposition they were introduced, and to those hands by
which we see them so impartially executed.
“Ever mindful of the abilities and of the candour displayed
422 APPENDIX.
by all the members of the bench, we think it our duty to
signify our thankful sense of them to your lordship, as the
president, and through you to the rest of your brethren; who,
as they have uniformly exerted themselves for the public
good, are also entitled to a share in our respectful acknow-
ledgments.
“We must confess our fears, upon the introduction of
English laws into this country, to have been neither light nor
groundless; where our fortunes, our lives, our honour, and
our religion might be at stake, we could not but shudder at
the consequences of justice distributed in an unknown lan-
guage, and upon principles of which we were totally ignorant.
It is to you, my lords, that we owe the obligation, not only
of a release from those terrors, but of a comfort and satisfac-
tion proportionably more solid, as our causes of uneasiness
had been substantial.
“We are now convinced that chicanery, subornation of
evidence, perjury, and forgery, will never, by any particularity
of circumstance, or exertion of influence, escape with impu-
nity; and severe warnings, which have been given to all
offences so injurious to society, are most ample pledges for
the protection of the peaceable subject in his property, his
person, and his reputation.
“We are also told, that by your timely interposition, an
attempt to introduce blank warrants” for summoning any per-
sons from all parts of the provinces, has been most effectually
precluded. By this step your lordships have probably
rescued an extensive kingdom from absolute destruction ;
for what man, independent either in his fortunes or his prin-
ciples, would have resided one moment in a country where he
was perpetually liable to be harassed by vexatious and expen-
sive journeys, and by a painful attendance upon a court of
justice, at the folly, the pique, or the caprice, of every litigious
individual 7
“We have now experienced, within the space of a few
months, a total removal of every serious solicitude, and the
most comfortable assurances of security in the possession of
all we hold valuable, in these striking specimens of the ex-
cellence of the British law, and the impartiality of its admi-
nistration; we are, therefore, very earnest in our wishes, that
its salutary influence may be yet wider extended, and its es-
tablishments (if possible) more effectually secured. Calcu-
lated as it is for a people whose climate, whose religion,
manners, and dispositions, differ totally from those of India,
* See this word observed upon in the minute of Bengal Secret Con-
Sultations, September 11, 1775: the context shows that it was not meant
a blank warrant to apprehend, but a blank subpoena.
APPENIDIX. 423
there must necessarily be many parts of it which materially
clash with our sentiments and our prejudices, though we have
the most exalted opinion of its general advantages.
“Give us leave, then, my lords, to hope, that it may here-
after be so modified and blended with the immediately na-
tional and constitutional peculiarities of this country, as to
leave us no possibility of apprehension from its most exten-
sive exertion, or excuse for undervaluing the obligations we
receive from it—that so our gratitude may be still more
warmly excited towards our most gracious monarch, who, in
this first exercise of his authority, has given us so wonderful
an instance of the wisdom of his government, and so respect-
able a representative of the British legislature.
“We must heartily unite in wishing, that your lordships
may long continue to preside in that court from whence all
our future security is to be derived; and that we may have
the satisfaction of knowing that our fortunes, our lives and
our reputations, equally unexposed to attacks of private arti-
fices, and the fluctuation of arbitrary authority, stand invio-
late upon the unalterable principles of equity.
“PETRUSE ARRAToon,
MINAs ELLIAs,
Owen John THoMAs,
&c. &c. &c.
“A true copy of the translation delivered with the original
address, which is in Armenian.”
“To the Honourable Sir Elijah Impey, Lord Chief Justice of
the Honourable the Supreme Court of Judicature, and the
Judges thereof.
“My Lords,
“The King of England, regarding with an indulgent eye
on the subjects of this kingdom, formed a new law; and con-
ferring on you, gentleman, the administration of justice, sent
you to this country. When we heard this news, our hearts
were filled with various doubts concerning the manner in
which the new law would operate; but some months have
now elapsed since your arrival in Calcutta, during which, in
all such causes as have come before the court, you, gentlemen,
in every way attentive to the welfare of this country, by re-
ceiving complaints, by forming regulations for issuing war-
rants, by weighing the representations of the plaintiff and
defendant, by investigating the evidence on both sides, by
distinguishing the characters of the witnesses, and in every
way by a complete examination, have established the new
424 A PPENDIX.
law: upon this, doubts which we before entertained being
removed, confidence and joy sprang up in our hearts, and we
are thoroughly convinced that the country will prosper, the
bad be punished, and the good be cherished. May the God
of Gods ever preserve you in health, and may you long con-
tinue to administer justice in this country !
“The law of you, gentlemen, may differ in sundry points
from the usages of this country, the Shaster, and the Bebhar
(or religious customs). We will examine into these points,
and represent them; and our prayer is, that in the usages of
this country, the Shaster, and the Bebhar, and in giving and
receiving (i.e. in matters of property), it may be so ordered,
that our welfare may in every respect be promoted, and our
religion preserved.
“ (Signed) MAHA RAJAH NUBKissEN,
RAJAH HuzRoo Mull,
RAJAH RAM LocBUN,
&c. &c. &c.
“A copy of the translation delivered together with the
original Hindoo address, which is in the Bengalee language,
on the 27th July, 1775.”
The address of the grand jury is subscribed by twenty-three
names; that of the free merchants, free mariners, and other
inhabitants of Calcutta, by eighty-four ; that of the Armenians
by forty-three; and that of the native inhabitants of Calcutta,
Burdwan, Currapurrah, &c., &c., by above one hundred.
The foregoing addresses were enclosed together with a letter
addressed by the judges to the Court of Directors, which the
Supreme Council were requested to despatch. They sent the
letter, but declined sending the addresses.
No. 4.
“ANswer to the Addresses of the Grand Jury, and Free
Merchants and Mariners of the town of Calcutta, delivered by
Sir Elijah Impey, then Chief Justice.
“Gentlemen,
“I know nothing that can give me greater satisfaction than
that which I received, by your thus testifying your due sense
APPENDIX. 425
of gratitude to his Majesty, for erecting an independent
court of justice in this settlement, and thereby extending the
full protection of the English laws to the natives of this
country, and to his British subjects at this distant extremity
of the British empire.
“The protection of the laws is the only constitutioual pro-
tection that can consist with a free government. Protection
by power only is capricious; it may shelter the guilty as well
as the innocent.
“We can assume no great merit in not allowing the blank
subpoenas to issue in the case you allude to. They were
moved, for the purpose of being sent high up into the country,
though the fact charged was committed in Calcutta, expressly
to bring down such witnesses as might come in, though the
party applying neither professed to know what the witnesses
were to prove, or that such witnesses actually existed. Such
subpoenas would be considered by the timid natives as man-
dates, and, if suffered to have been made use of by wicked
men of power and influence, you most truly say, that your
reputation, property, and lives, could not be safe; it would
have subverted that justice which it is our duty to enforce.
There is little doubt, had they been granted, instead of
having those witnesses produced, most of whom you know,
and so justly reprobate, we should have had a new troop of
false witnesses.
“Neither can we assume to ourselves any extraordinary
merit or sagacity in detecting the falsehoods of the witnesses
produced at the trial. The subject matter of the evidence,
the manner of delivering it, and the persons who delivered,
made the imposition attempted to be put on the Court, too
gross to deceive either the Court, or such bystanders as did
not through prejudice wish to be deceived.
“Two things operate to make our stations easy to us: the
one, that we have a strict rule for our conduct, the law; the
other is, that we do not administer justice privately. The
eyes of all the inhabitants of the settlement are upon us;
they by that means become judges of our conduct, and will
bestow on us censure or confidence, in proportion as we de-
serve either the one or the other.
“In the present unhappy state of the settlement, we are
most sensibly affected, by receiving the public approbation of
two such respectable bodies of men, as the grand jury, and
the free merchants and mariners of this town; of a grand
jury elected by ballot from all the Company's servants below
the Governor General and Council, and from all the substan-
tial inhabitants of this place; of the free merchants and
mariners, a body of men from their situations independent
426 APPENDIX.
and unbiassed by interest or fear. The voice of the grand
jury so elected, and of the free merchants and mariners,
is the voice of the settlement.
“I entertain the highest sense of the great honour done
me by the marks of esteem which you are pleased particularly
to address to me. The first and great satisfaction which I
feel in my present situation is, the approbation of my own
conscience; the next, that those to whom I administer justice,
bestow their approbation on my conduct, and put full confi-
dence in the rectitude of my intensions,
“It is with the greatest alacrity that I accept of the honour
proposed me; for being unconscious of either exerting or pos-
sessing any peculiar talents, I understand it is at least as
much a public testimony of gratitude to his Majesty, for
adopting the" measure of erecting an independent court of
justice in this town, as a personal compliment to the humble
instrument of carrying his gracious intentions into exe-
cution.”
“ANswer to the Hindoo Inhabitants of the town of Calcutta,
delivered by Sir Elijah Impey, Knight, Chief Justice.
“Gentlemen,
“It is a great consolation to us, that having been under
the unhappy necessity of inflicting a capital punishment on a
person of an high cast in your religion, we receive this general
and public approbation of our distribution of justice from so
numerous and respectable a body of Hindoos, among whom
it gives us inexpressible satisfaction to see, there are many of
the most principal Brahmins.
“It was natural, when you heard that a new law was
formed in a remote country, by a legislature differing most
widely from you in religion, laws, and customs, for the admi-
mistration of justice in this, that you should be filled with
doubts concerning the operation of it, and be strictly observant
of the conduct of those who were appointed to carry it into
execution: we are happy that your observation of our pro-
ceedings has created that just confidence in us, which has so
soon caused your doubts to subside, and we feel ourselves the
more obliged to you for it, as it hath not escaped us, that
some evil-minded persons, disaffected to the establishment of
an independent court, have wickedly and maliciously endea-
voured to destroy that confidence, and to disturb your minds
with apprehensions of the most alarming nature, by attempt-
ing to persuade you that your laws and usages, formed on
your religion and government, interwoven into your manners
and sentiments, and sanctified by the experience of a long
A1P PENDIX. 427
succession of ages, were instantly to be over-ruled, abolished,
and superseded by the authority of a foreign law; to alienate
your minds from the court of justice, and to alarm you in the
most sensible manner, you have been told that your marriages
with more women than one, would subject you to severe
penalties; than which nothing can be more false.
“It is true, that in England it is considered as criminal;
but the reasons which make it so in England do not exist here.
It is considered as criminal there because the religion of
England allows but one wife to one man, and the laws there
confer certain rights and privileges on that wife only, and
suffer her children alone to inherit the estates of their parents:
He, therefore, who in England marries another woman during
the life of his wife, abuses his wife, who has a right that no
other shall share in his affections; commits a fraud on the
second woman, who cannot enjoy the rights and privileges
she was taught to expect; injures his offspring by her, and is
guilty of a breach of the laws, and a violation of the religion
of his country. It would be absurd, cruel, and unjust to
treat such an act as criminal here, where no injury is done by
it to any person, and where the laws and religion of the
country give a sanction to it. I dwell longer on this subject,
and am more desirous of dissipating all doubts that either
you or the Mussulmauns have entertained on it, as I know
this has been particularly urged, because calculated to sink
deep and make a lasting impression on your breasts, as it
must universally affect you in your domestic happiness, and
in your nearest and dearest concerns.
“The pleasure which we feel from these public expressions
of your sense of the manner in which we have discharged our
duty, grateful as they are to us, is small in proportion to that
which we receive from their giving us an opportunity of vin-
dicating our most gracious Sovereign from the calumny of
treating you rigorously and harshly in the very instance of
his extending his fatherly influence and goodness to you, and
of assuring you that the new Act of Parliament is with
respect to you no new law, otherwise than in giving you an
additional security for your lives and properties, by placing
the execution of the law, which is to protect you, in an inde-
pendent court of justice. It makes no alteration in your re-
ligion, laws, and usages, or in those of the natives of this.
country; it leaves them in every respect the same as they
were when the new law took place.
“For your greater ease and peace of mind, I make this
public declaration, that whenever occasion shall require, I hold
myself bound to make strict inquiry into, and to pay due
attention to the customs and usages of the different matives of
428 App ENIDIX,
this country; and you may depend on the highest respect
being had in our decisions to the Shaster and Bebhar, those
sacred deposits of your religion and laws : we have already,
in the only case which required our being informed of your
religion and law, called in and consulted with those venerable
oracles, the pundits, and were guided by their decisions,
drawn from the text of the Shaster.
“It will be a great ease to us in the farther discharge of
our duties, to be furnished with your observations on those
points in which you apprehend any innovations likely to be
made, that being apprised of them we may be more cautious
in our judgments, if those points should come before us.
“The protection of you, gentlemen, and the other natives
of this country, was the first and main object that induced
his Majesty to place the administration of justice in our hands;
and I am sure we shall all esteem ourselves guilty of a cri-
minal breach of trust, if we do not in cases of property, and
in all other matters, which may come under out cognizance,
labour to the utmost of our power to promote your welfare
and to preserve your religion.
“Mr. Justice Chambers, and Mr. Justice Lemaistre, will
be sorry that their absence from the settlement has prevented
them from receiving this address personally from you: but I
will, with the utmost expedition, convey to them the satisfac-
tion they must enjoy from being addressed by persons of your
rank and estimation.”
“ANswer to the Address of the Armenians, delivered by Sir
Elijah Impey, Knight, Chief Justice.
“Gentlemen,
“It is by no means surprising, understanding as you did,
that new laws were to be introduced among you, formed to
rule a nation differing so wide in climate, manners, and reli-
gion, from you, that you should take an alarm. It will be
with the highest satisfaction I am enabled to acquaint his
Majesty, through his ministers, with what cheerfulness you
submit to his laws, and with what gratitude you acknowledge
his royal care, extended to these regions so remote from the
seat of his empire, and with what warmth you wish, that the
salutary influence of his laws may be yet wider extended, and
their establishment (if possible) more effectually secured. I
will likewise most faithfully transmit your hopes that the
laws may hereafter be modified and blended with the imme-
diate national and constitutional peculiarities of this country.
“We enjoy great happiness from finding that our adminis-
tration of those laws has tended to remove the prejudices
APPENDIX. 429
which you so maturally entertained; and it rejoices me to have
it in my power to inform you, that the same gracious wisdom
and goodness that prompted his Majesty to extend the benefit
of his laws to this country, has prescribed to us, by his royal
charter, in what manner and how far we are to introduce
them, thereby providentially guarding against any inconve-
nience that might arise from a promiscuous and general intro-
duction of them.
“The principles of laws relating to property are universal;
to give to every man what is his due, is the foundation of law
in all countries and in all climates; it is a maxim that must
be acknowledged by men of all religions and persuasions :
religion, custom, and prejudice, do, indeed, make the same act
criminal, or more or less so, in one country than in another.
“But his Majesty has already most graciously consulted
your religion and customs, and the climates which you inhabit,
and has with most fatherly tenderness indulged even your
prejudices; it is his royal pleasure, that only such of his laws
shall be enforced, as are conformable to your customs, climate,
prejudices, and religion.
“We cannot but be sensibly affected by this public approba-
tion of our conduct, given unanimously, by so opulent, so
respectable, and so independent a body of men, as the Arme-
means resident in this town.
“Did our consciences not co-operate with that approbation,
we should feel these expressions of your sentiment as cem-
sures, not praises.
“We are confident, that if the laws of England are homestly
and conscientiously administered, you cannot be disappointed
in the effects which you so sanguinely expect from them; and
we pledge ourselves, that it shall be our constant study, to
administer them in such manner, that you may derive from
them the greatest benefit, and the fullest protection, which
they are capable of bestowing.”
This is as much as I have thought it necessary to extract
from the “Appendix to the Speech of Sir Elijah Impey, pub-
lished by Stockdale, in 1788.” It contains 244 8vo. pages,
to which the reader is referred, particularly for the evidence
of Thomas Farrer, Esq., before the Committee of the House
of Commons, from the 11th to the 20th of February, 1788,
p. 105 to 164. To the evidence of Samuel Tolfrey, Esq.,
from p. 170 to 215. And to the evidence of Philip Fran-
cis, Esq., given from his place as Member of Parliament, on
Wednesday, the 16th of April, 1788, from p. 222 to 244.
430 APPENDIX.
No. 5.
THIs was originally presented as a Petition, which having
been refused, it is my purpose now to put it once more on
record as a Memorial, together with the answer of the
Directors, and my letter to Lord Fitzgerald thereunto an-
nexed. It has been slightly corrected for the press, and the
alterations are printed in italics.
To the Honourable the Chairman and Court of Directors of
the East India Company, &c. &c.
The Memorial of Rear-Admiral John Impey, and of Elijah
Barwell Impey, Esquires,
Sheweth,
That your memorialists are the two eldest surviving sons
of the late Sir Elijah Impey, Knight, formerly Chief Justice
of the Supreme Court of Judicature at Fort William, in
Bengal, &c. &c.
That, in that character, and as representatives of a family,
many of whose members have been, and still are, employed
in the service of your Honourable Company, your memorialists
appeal to you for protection against a very unprovoked and
injurious libel on the memory of their said father, lately pub-
lished by your Assistant Secretary, Mr. Edward Thornton.
That the said libel—and your memorialists use the word
advisedly, and in its legal sense—is contained in the second
volume, page 152, of a book entitled, “The History of the
British Empire in India.” It relates to Sir Elijah Impey’s
acceptance of the superintendence of the Sudder Dewannee
Adaulut, in 1780, and runs thus:–
“To the reputation of the Chief Justice the appointment was more
injurious than even to the Governor General. It was deadly. Had Sir
Elijah Impey died before he accepted the fatal gift, he would, by impartial
observers, have been regarded as a man of narrow mind, headstrong
passions, and overbearing temper; but no imputation, based on sufficient
evidence, would have shaded his judicial integrity. His own act effected
that which the ingenuity of his enemies failed to accomplish. He in-
scribed upon his own brow the record of his disgrace, in characters deep,
broad, and indelible.”
Your memorialists beg leave most respectfully to state,
that the libellous matter contained in this, and many other
passages of a similar tendency, have acquired a greater weight
and credit, from having been written by a gentleman, who,
from the office which he holds, is generally supposed to be
possessed of better information, and supported by higher
authority, than any other ordinary writer on the same
APPEN DIX. 431
subject. That the book, from its having been printed by
Mr. W. H. Allen, of Leadenhall Street, who is reputed to be
the Company’s bookseller, and from its having been gra-
tuitously presented to many of the proprietors of India Stock,
has thereby obtained a wider circulation, than if it had issued
from any other shop; and that the indulgence thus afforded
to the author and publisher, has been by them abused and
perverted to an unworthy purpose: resulting in consequences
which your memorialists are convinced were never contem-
plated by your honourable Court; namely, the defamation of
a public functionary, long deceased, and an outrage on the
respectability of his descendants.
Unwilling to obtrude themselves upon your notice otherwise
than on public grounds, your memorialists abstain from all
expression of private feeling; nor will they encroach upon your
time farther than is necessary to rebut what may possibly be
objected to this appeal—viz. “That in the fair and impartial
earamination of a public character, Mr. Thornton is amenable
neither to your memorialists, nor to his official superiors.”
But your memorialists undertake, in a few words, to detect
the fallacy of any such plea ; by demonstrating, first, That
Mr. Thornton’s examination has not been impartial. And
secondly, That the circumstances under which he has con-
ducted it, inasmuch as they equally apply to your honourable
Court as to your memorialists, render him alike responsible
to both.
First, That Mr. Thornton’s examination, if it can so be
called, has not been impartial, but, on the contrary, pecu-
liarly uncandid and unfair, is evident from more than one
remarkable fact. For while Mr. Thornton, by the general
spirit of his work so far as it relates to Sir Elijah Impey,
scruples not, unwarrantably, to revive many unfounded ca-
lumnies, he studiously suppresses all evidence of his es-
tablished defence; so that not even the word itself should
once occur in the whole course of the narrative, in a sense
conveying the slightest intimation of a fact, which, never-
theless, is motorious, and has become a part of authentic
history; namely, that Sir Elijah Impey did, on the 4th day
of February, 1788, defend himself at the bar of the House of
Commons, to the effect of completely annulling the threat of
a Parliamentary impeachment, moved by Sir Gilbert Elliot,
Bart., on the 12th of December, 1787. The bare omission of
such a fact, is, in itself, sufficient generally, to betray the
animus with which Mr. Thornton wrote. But in the case
particularly referred to, namely, Sir Elijah Impey’s super-
intendence of the Sudder Dewanmee Adaulut, Mr. Thornton
has, in like manner, withheld all the existing vouchers in
432 APPENDIX.
vindication of that transaction; while he prominently exhibits
every partial opinion against it. In reference, for example,
to the question as to the legality of that measure, submitted
to counsel in 1781, Mr. Thornton quotes only the answer of
Mr. Rous, the Company’s Barrister, and totally conceals
those which were delivered by Mr. Dunning and Mr. Wallace,
both great lawyers in their day. He likewise omits the im-
portant fact, that the opinion of the former was founded on
expediency alone, and those of the two latter upon law. With
the same view, Mr. Thornton parades the remarks and com-
ments of Sir John Day, the partisan of Mr. Francis, but is
quite silent in regard to the sentiments of Thurlow, Wal-
singham, Pitt, Grenville, and many others who supported the
conduct of Sir Elijah Impey in either House of Parliament.
But if, in regard to personal opinions, Mr. Thornton has been
thus partial and unjust, no less disingenuously has he dealt
with those written documents, by which Sir Elijah Impey is
equally exculpated, or, at the very least, capable of defence.
For, had Mr. Thornton merely consulted and made known the
memorials deposited in the Company’s offices, not many steps
removed from his own, he would have discovered, and might
have shown, that in a letter addressed to the Governor Ge-
neral and Council, dated July 4, 1781, “the Chief Justice
declined accepting the salary annexed to the Sudder Dewannee
Adaulut, until he should hear from the Lord Chancellor and
the King's Attorney General, to whom he had written on the
subject.” And that, “on the 15th of November, 1782,” on
his resignation of the appointment, “Sir Elijah Impey trans-
mitted to the Governor General and Council, by the hands of
the Accountant and Treasurer, a true copy of account of all
money, as well received from the Mofussil Adauluts as in
the Sudder Dewannee Adaulut, on account of all deposits
from April to September, 1782;” that is to say, for the
whole period during which those Courts had been in active
operation under his controul. Now the truth, divested of
all partial colouring, is this : In 1780, before any salary
was proposed, the Chief Justice accepted the appointment as
a provisional measure only, to put an end to a conflict which
had unhappily arisen between the Council and the Court, in
consequence of an imperfect Act of Parliament, the 13th of
George III. cap. 63., which had given supremacy to both, but
left the jurisdiction of either undefined. In 1781, when it
was proposed to annea, a salary to the office, the Chief Justice
declined accepting it unless approved by the Government at
home. The crown lawyers, with the exception of the Solicitor
General, Mr. Mansfield, who first agreed, and afterward re-
vised his opinion, authorised the appointment. The Com-
APPENDIX. 433
pany's standing counsel, Mr. Rous, disapproved of it, on the
same plea which Mr. Mansfield had assumed. Pursuant to
that opinion, the Court of Directors rescinded it, and the
Chief Justice, having, in the mean time, laboriously conducted
the office—for it was one of real business—refunded the pro-
ceeds, not one shilling of which he had ever appropriated to
his own use.
In the statement of these facts, your memorialists are con-
firmed by official documents at the India House, registered in
the minutes of your Councils abroad, and attested by a
“Memorandum ” of the Directors at home—from the latter
your memorialists extract the following words: “It could
hardly have been expected that the Chief Justice should give
Qup his few hours of relaa’ation, and enter on a fresh scene of
dabour and perpleavity without compensation. The offer of a
Salary was at once a necessary and judicious sacrifice, but the
property of the Company has by no means been wantonly
lavished. 268000 bore no proportion to the sums which must
eventually be saved. Perhaps they were ten times the amount,
and of this salary we are yet to learn that a single shilling
has ever been received ; though the appointment was passed in
Council in October, 1780.” And again, at the conclusion of
the same document, your memorialists find the following
paragraph: “Whatever plan may be adopted for the better
arrangement of the judicial office in Bengal, it may be affirmed,
that considerable advantage will still be derived from the pro-
fessional assistance afforded by the Chief Justice, to the
Sudder Dewannee Adaulut. His regulations and instructions
—for he has already proposed many—will probably continue
the standard of practice; his decisions will be firm precedents
for future judges, and his example stamp respectability on the
office. No weak, indolent, or undignified character, will
readily find admission into the vacant seat of Sir Elijah
Impey.” s º,
Such is the testimony which Mr. Thornton has thought
proper to suppress. That upon which he grounds his ac-
cusations proceeds exclusively from the same source whence
the Select Committee of the House of Commons derived their
information, and whereon they founded their report—the
evidence of ea-parte witnesses, notoriously collected for the
very purpose of crimination. Had Mr. Thornton drawn his
conclusion from premises fairly stated on both sides of the
question, whatever might have been its severity, he would
have been them entitled to the plea of impartiality, he might
then have insisted on his right of discussing the merits of a
public character with all the acknowledged liberty of the press,
to its full extent, and your memorialists would then have been
2 F -
434 APPENDIX.
debarred of their plea. But he has dome no such thing. It
suited his purpose to falsify, not to discuss the conduct of Sir
Elijah Impey; therefore it is that Mr. Thornton revives the
factious opinions of more than half a century ago ; therefore
it is that he confines his researches to the Annual Register,
and Daily Advertiser; therefore it is that he republishes the
libels of Woodfall and Debret, but cautiously abstains from
divulging any one of those numerous eaculpatory documents
which lay ready at his hand, based upon the testimony of
your own Board, and enrolled among the archives of your
own repositories.
Your memorialists having thus, as they humbly conceive,
established their first proposition, mamely, that Mr. Thornton
has no right to the plea of an impartial historian, proceed
secondly to show, that Mr. Thornton has made himself
responsible, not only to your memorialists, but also to
your honourable Court, under circumstances alike offensive to
both.
The facts are these. Shortly after the publication of Mr.
Thornton’s first volume, aware that the author was approach-
ing that period which would comprise the proceedings in the
Supreme Court, during Sir Elijah Impey's tenure of office in
India, and apprehending that Mr. Thornton might fall into
the mistakes and prejudices of some who had preceded him,
one of your memorialists called upon that gentleman, and, in
the presence of another of your officials, offered him a copy of
Sir Elijah Impey’s Defence before the House of Commons, a
publication, which, from lapse of years, has become scarce,
and which Mr. Thornton confessed he had not read or even
heard of; he nevertheless declined the offer, and accompanied
the refusal with a positive assurance that “full justice should
be done to the character of Sir Elijah Impey.” It is only
necessary to compare these words with the libel above recited,
to prove that they must have been meant either to deceive or
to insult your memorialist; they were either false or sarcastic;
in either case unworthy of a gentleman, and especially one
upon your establishment. For at the time of this interview,
on or about the 9th of June last, Mr. Thornton was apprised
that your memorialist had solicited and obtained leave from
your honourable Court, to search the Company’s records, in
order to refute the calumnies of another author; * a purpose
which, in a letter communicated by your Secretary, Mr.
Melvill, had been very graciously countenanced by your
honourable Court; yet Mr. Thornton has done all he could to
thwart that purpose, by adopting the very errors against
* Mr. Macaulay.
APPENDIX. 435
which he had been warned, and which your memorialist was
labouring by your aid to correct.
In counteracting a purpose thus authorised and approved
by his superiors, with a full knowledge of the fact, it is res-
pectfully submitted, that Mr. Thornton has, in like manner,
presumed to counteract your beneficent intention towards
your memorialist; that he has aggravated his offence to
the latter by a breach of promise; and that, by manifesting
an equally culpable disregard and contempt of the former, he
has brought himself under the cognizance of your authority.
Your memorialists, confining themselves to the two pro-
positions which they undertook to prove, refrain from en-
tering any farther into the merits of a case, which they have
never denied to be open to fair discussion, but which, if not
already set at rest by long and scrutinous proceedings in Par-
liament, above sixty years ago, and if not sufficiently es-
tablished on proofs recorded in your own councils, both
abroad and at home, will assuredly gain mothing from the
advocacy of your memorialists; yet, on the other hand, as
little ought it to lose from the injurious comments of Mr.
Edward Thornton.
Let each, then, it is humbly suggested, be called upon to
produce his vouchers, before either is suffered to prevail over
the other, under the apparent support of your patronage.
Your memorialists, on their part, are prepared with abun-
dant evidence, to disprove the allegations above quoted, and
willing, if allowed that honour, to produce them at any court
that may be named for that purpose; or to deposit them in
the hands of the Company’s Solicitor, for the inspection of
any Director or Committee of Directors deputed by your
honourable Court.
Should this be thought informal or unnecessary, your
memorialists are content to refer to the following documents.
They have been collected, for the most part, with no little
assiduity of research, from various authentic sources, and
verified by official signatures.
They consist:–
1. Of a large collection of letters, private and official, be-
queathed by Sir Elijah Impey to one of your memorialists.
2. Extracts from the folios in Leadenhall Street, entitled
“Bengal Revenue Councils,” particularly those beginning in
September, 1780, and ending in November, 1782.
3. Of a transcript by one of your clerks, from a manuscript
volume inscribed “Miscellaneous,” in which is registered
(page 533, B 447), “A Memorandum on the Judicial Es-
tablishment of India, vindicatory of Mr. Hastings and Sir
Elijah Impey.”
436 APPENDIX.
4. The registration of processes issued by the Supreme
Court, 1774 to 1779, kept at your Solicitor's office at
Draper's Hall; particularly relative to appeals against the
judgments of the court, which have been dismissed by the
King in Council.
5. An authentic document, procured from the Privy Coun-
cil Office, of the issue of an appeal brought against a judg-
ment given in 1779, which was dismissed for want of
prosecution in 1789.
6. The book alluded to as having been offered to Mr.
Thornton, and by him declined: viz., “The Speech of Sir
Elijah Impey, &c., delivered by him at the bar of the House
of Commons, on the 4th day of February, 1788,” &c. &c.
“London: Printed for John Stockdale, MDCCLXxxvi II.”
All these documents were equally accessible to Mr. Thornton
as to your memorialists, for had he not refused a part, he
would have been welcome to the use of all in their possession.
Had that gentleman examined them with half the labour that
has been bestowed upon them by one of your memorialists,
he might have grounded his history upon far less equivocal
authority than that of a political faction, prompted and im-
pelled by Sir Elijah's bitterest and most inveterate enemy.*
He might have considered the formidable array of talent thus
instigated and brought into action against the unassisted efforts
of the accused, and the triumphant result of those efforts in
one instance, as a fair presumption of a like issue in others,
had opportunity been allowed. He had better, in short, have
been silent on a subject of which he was either wholly ignorant,
or but partially informed.
But Mr. Thornton has not been silent, except to the effect
of concealing the truth; for it has been proved, that he
has been equally regardless of the documents within his
own reach, as of those to which one of your memorialists
in vain solicited his attention. If, therefore, knowing both
to exist, he has carelessly omitted, or designedly suppressed
them, then is Mr. Thornton manifestly guilty of one or other
of these offences—unpardonable negligence, or wilful misre-
presentation. From this dilemma Mr. Thornton cannot escape;
for this conduct Mr. Thornton ought to be rebuked; and by
whom so properly as by his own honourable masters ?
On these grounds, your memorialists rest their claim for
such redress as in your wisdom and sense of justice you may
think fit to afford; and although they do not presume to
dictate any particular mode or measure of its application, yet
they venture, in all humility, to implore, that it may be such
* The late Sir Philip Francis.
APPENDIX. 437
as to mark the disapprobation of the libel by your honourable
Court, so that it may be put on record in justification of their
plea. And in thus appealing to your authority, as the legiti-
mate vehicle of censure to your immediate dependent, they
trust that you will deem them to have acted in a manner more
indicative of respect for your honourable Court, and more
consistent with their own age, education, and condition, than
if they had sought their remedy elsewhere, or by any other
IſleåIl S.
Your memorialists have no vindictive feeling towards Mr.
Thornton, of whom they personally know nothing more than
that his name is affixed to a work generally believed to be
authorised by the East India Company, and circulated at their
expense. They desire no more than to be placed by your
favour, as vindicators of their father's reputation, on an equal
footing with Mr. Thornton, his defamer. In other words, all
they require is, the same liberty to publish the truth, as Mr.
Thornton has assumed in propagating what is false.
Lastly, if, in the course of this appeal, they have been
betrayed, by the excitement of a distressing subject, into any
unbecoming warmth of expression, they rely on the known
candour and liberality of your honourable Court for every due
allowance.
Signed JOHN IMPEY, Rear Admiral.
(Signed) ELIJAH BARWELL IMPEY.
4, Middle Scotland Yard, Whitehall,
I)ecember 2, 1842.
To this appeal the memorialists received the following
allSWer:-
“East India House, January 12, 1843.
“ Gentlemen,
“I have laid before the Court of Directors of the East India
Company, your memorial relating to certain passages in a
History of the British Empire in India, now in course of
publication by Mr. Edward Thornton, and in reply, I am
commanded to inform you, that although their patronage has
been given to the work in question, the Court must disclaim
being in any degree responsible for opinions expressed in it.
“I have the honour to be,
“Gentlemen,
“Your most obedient humble Servant,
“J. D. DICKINSON,
“Rear Admiral Impey, and “Deputy.
“Elijah Barwell Impey, Esq.”
438 APPENDIX.
A draft of the foregoing memorial had been submitted to
the inspection of the noble President of the Board of Controul,
before it was presented to the Directors; and a copy of their
reply, soon after its receipt, was likewise communicated in the
letter subjoined, addressed to his Lordship.
2, Saville Row, Bath, January 19, 1843.
My dear Lord,
Having had the honour of laying before your Lordship a
copy of my memorial to the Court of Directors, I think it my
duty to communicate their reply. How far they are justified
in their declaration, that “although their patronage has been
given to the work in question, the Court must disclaim being in
any degree responsible for opinions eaſpressed in it,” I do not
presume to decide; leaving the issue to your Lordship's de-
termination, upon public grounds, and with an implicit reliance
on your honour, wisdom, and equity. With my private sen-
timents, I have no right or inclination to trouble your Lord-
ship, beyond the expression of my gratitude for the kind in-
terest which you have taken in the object of my present
pursuit.
I have the honour to be,
My dear Lord,
Your obliged and faithful humble Servant,
E. B. IMPEY.
To the Right Honourable
President of the Board of Controul.
To this letter no answer was returned. How far his Lord-
ship's silence may be attributed to his last illness; to what
degree the subject may have engaged his thoughts; or whether
he may or may not have considered it a fit object for inter-
ference, it is useless now to inquire.
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