The Pamphlet Collection of Sir Robert Stout: Volume 54
Sir James Stephen's Vindication of sir Elijah Impey: the Story of Nuncomar
Sir James Stephen's Vindication of sir Elijah Impey: the Story of Nuncomar.
In his last literary production, Sir James Stephen has rendered a valuable service to every student of English jurisprudence. He has also brought within the pale of obligation those who are interested in Anglo-Indian history and its literature. The Story of Nuncomar appeals with pertinent and vivid force to the whole legal profession; its claim upon the attention of the laity lies in the tremendous indictment it launches against one of England's most cherished reputations. It is difficult to determine which of the two conditions it partakes more largely—apotheosis or iconoclasm. If it be not the most remarkable and important work which has appeared during the latter half of this century, it is certainly one of the most remarkable. It completely vindicates the character of an English Chief Justice, the assumed infamy of whose judicial acts has preserved posterity's interest in him with a vernal freshness. It equally annihilates the historic authority of the most learned, the most distinguished, and the most brilliant English writer that adorns the domain of letters during the present century. Lord Macaulay has been justly regarded as the ablest exemplar of rhetoric and oratory of his time. Elijah Impey has been depicted as the most infamous tool that ever prostituted the sanctity of high office to selfish ends. It is impossible to think of Macaulay without summoning up a vision of the mantle of Impey, fringed with oppression, perforated with corruption, and drenched in blood. The genius with which the masterhand drew Impey's character was so subtle in its contour, so intense in its colouring, that it has outlived the plain truth for nearly fifty years. The ease and grace with which Macaulay allowed his talents to triumph over veracity in order to produce effect shows the irony of much that we call history.
No historian ever summarised the annals of his country with page break greater literary skill, with more consummate art. The purity of his style, the dazzling polish of his rhetoric, the trenchant quality of his satire, the vigour of his imagery, the incisiveness of his metaphors, have done more to exhibit the sublime flights to which the English language can soar than the writings of any other master of English prose. Under the touch of his magic hand men, as he elected, were either deified or damned. John Bunyan has never fallen from the high estate to which he was raised in that memorable essay on Southey's edition of the 'Pilgrim's Progress;' from Elijah Impey's name has never been effaced the stain of 'judicial murderer' cast upon him by the same master-hand. For half a century Lord Macaulay's verdicts on historical characters have been accepted with a reverence little short of absolute. Before time shall have completed the cycle of the twentieth century his greatest masterpieces will stand self-condemned by the glaring inaccuracies which disfigure them. The present generation is contesting the ground they cover inch by inch, with increasing discredit to the historian. The more they are submitted to the bistoury and scalpel of the literary surgeon, the more clearly they reveal that they are not what they affect to be—faithful literary portraits of historical characters. The irreverent scepticism of the present age compels us to submit the creations of our most beloved masters to a searching autopsy. If the parts emerge from the dissecting-room bearing the stamp of uniformity, then so much the better for the master-hand that moulded them. If, on the other hand, they exhibit the incorporation of foreign matter alien to their nature, and introduced for the sake of giving them an artistic exterior, then so much the worse for the artist whose name has given them place and position. Macaulay maintained his charge of 'infamy and corruption' against Impey with such logical force and subtle mastery of language that the imputation will never be completely overtaken. The injury the dead Chief Justice has sustained can never be wholly repaired. Sir James Stephen's researches certainly neutralise the most trenchant of Macaulay's charges. They are shown to have been constructed of the most flimsy materials. He proves, moreover, that Macaulay had not even partially studied the character of the man on whom he pours with lavish hand such scathing denunciation. The situation of Impey was dramatic, the colouring to be employed deep, which of all things suited Macaulay. Unfortunately for Impey, his condemnation was capable of being worked into a much more effective picture than his vindication. This, perhaps, settled his fate.page 5
Sir James Stephen establishes beyond dispute that Macaulay paid more attention to effectthan to facts. His strong nature compelled him to take up a side—generally that which he conceived to be the oppressed and weak. He could never remain colourless. When he went forth to battle for justice, he was a terrible antagonist. But, unquestionably, in many of his disquisitions dramatic effect filled a larger space in his eye than truthful narrative. Like Victor Hugo, his power to transport was superhuman; so that, right or wrong, he carried conviction to the mind of the reader. Even his editor's judgment melted under the dazzling splendour of his rhetoric. "The more I think," says Jeffrey, on reading his first contribution to the Edinburgh, "the less I can conceive where you picked up that style." Macaulay's great power was that of transmitting his own sensations. What he loved is an object of adoration with us; what he hated is hideous as black night. On this trait in his character Mr. Trevelyan throws some light in his Life of Macaulay. 1 "Where he set his mark there was no need of a second im-pression. The undulysevere fate of those who crossed his path during the years when his blood was hot teaches us a serious lesson on the responsibilities of genius. Croker, and Sadler, and poor Robert Montgomery, and the other less eminent objects of his wrath, appear likely to enjoy just so much notoriety, and of such a nature, as he has thought fit to deal out to them in his pages; and it is possible that even Lord Ellen borough may be better known to our grandchildren by Macaulay's oration on the gates of Somnauth than by the noise of his own deeds, or the echo of his own eloquence."
1 'Life and Letters of Macaulay.' G.O.. Trevelyan. I., 129.
1 It were too much for me to venture to charge the learned gentleman with intentional misrepresentation of the transactions to which he thus solemnly refers; but I must say that he seems to me to labour under strange for get fulness, or still stranger ignorance. He tells us that he was but young when these events happened; but there are some of us, not much older than he, who witnessed that period with a childish wonder, which ripened, as the tragedy proceeded, into astonishment and horror; and, after all, it requires no great depth of historical research to be acquainted with the prominent features of those interesting and instructive times. I am, therefore, I own, exceedingly surprised, not that the learned gentleman should have thought the illustration both just and striking, but that he should not have felt that the facts of the case would lead any reasonable and impartial mind to conclusions absolutely the reverse of those which he has deduced from them. He warns the Peers of England to beware of resisting the popular will, and he draws from the fate of the French nobility at the Revolution the example of the fact and the folly of a similar resistance. Good God! sir, where has the learned gentleman lived, what works must he have ready with what authors must he have communed, when he attributes the downfall of the French nobility to an injudicious and obstinate resistance to popular opinion? The direct reverse is the notorious fact, so notorious that it is one of the commonplaces of modern history . . . . . . Did the nobles, on that vital occasion, show that blind and inflexible obstinacy which the learned gentleman has attributed to them? Did they even display the decent dignity of a deliberative Council? Did they, indeed, exhibit a cold and contemptuous apathy to the feelings of the people, or did they not rather evince a morbid and dishonourable sensibility to every turn of the popular passion? Was it, sir, in fact their high and haughty resistance, or was it, alas! their deplorable pusillanimity that overthrew their unhappy country? No inconsiderable portion of the nobility joined the Tiers Etat at once, and with headlong and heedless alacrity—the rest delayed for a short interval—a few days only of doubt and dismay; and, after that short pause, those whom the learned gentleman called proud and obstinate bigots to privilege and power, abandoned their most undoubted privilege and most effective power, and were seen to march in melancholy procession to the funeral of the Constitution with a fallaciouspage 7 appearance of freedom, but hound in reality by the invisible shackles of intimidation, goaded by the invectives of a treasonable and rancorous press, and insulted, menaced, and all but driven by the bloody hands of an infuriated populace. . . . . . . The learned gentleman attributes to the obstinacy and bigotry of the French clergy the ruin of the Church. . . . Who was it that, in that portentous night, offered as he said, on the altar of his country, the sacrifice of the privileges of the nobility? A Montmorency! Who proposed the abolition of all feudal and seignorial rights? A Noailles! And what followed? We turn over a page or two of this eventful history and we find the Montmorencies in exile, and the Noailles on the scaffold.
1 'The Croker Papers,' II., 131.
This blow was the first serious public reverse sustained by Macaulay. But the brilliant essayist had become such an idol in the minds of his countrymen, and such a power in the State, that it had little or no effect upon his reputation as an historian. From that time forth he grew, rather than declined, in his power and in the admiration of Englishmen. Indeed, it is questionable whether he does not stand on a higher column of fame to-day than ever he did, for his works form part of the curriculum in every English school Still, efforts like those which Sir James Stephen has just accomplished must irresistibly weaken, if not utterly destroy, his authority as an historian.
Macaulay's works can never be wiped out of our literature; they may, however, inherit what the essayist himself would have regarded as a worse fate—become relegated to the domain of fiction Certainly the extravagance of his charge against Impey, and the proof of its being so wide of the truth, has been incontestably proved by Sir James Stephen. And the now famous essay on Warren Hastings will be regarded by posterity as a brilliant exhibition of invective, in which romance and a picturesque imagination play a much more important part than facts.
It is the intention of Sir James Stephen to investigate the whole of the proceedings incident to the 'Impeachment of Warren Hastings,' with a view of examining critically the whole legal procedure. It can be easily understood what a mass of evidence the critic would have to examine in order to exhibit to the lay mind a succinct and coherent narrative. The bulk of the evidence in this remarkable trial appears to have been studiously avoided by all previous writers who have attempted to treat the subject. No better reason for their unconscionable neglect appears than the sustained labour such an examination necessitated. The evidence brought to the light of day by Sir James Stephen was only to be obtained by a careful perusal of a mass of undigested matter, ill-recorded, ill-preserved, and almost inaccessible. The effect of writing history from unauthentic page 8 material is sufficiently shown in Lord Macaulay's 'Essay on Warren Hastings.' Sir James Stephen assumes that Macaulay imbibed his initial repugnance to Impey from the speeches of Sir Gilbert Eliot and Edmund Burke. Some of his principal impressions he obtained from an extremely rare, but equally unreliable, work called Siyyar-ul-Muta-qherin, by Syud Gholam Hussein Khan, a Mohammedan chronicler. This singular book was translated by a Frenchman, calling himself Mustapha. The amount of caution with which its claims to credibility should be accepted may be gauged by the translator's modest admission of his own incapacity, prefixed to the work itself. "That the man who has not the honour to be born an Englishman, and is far from being a Persian, who has never seen England, and never had any other masters in either language but himself, should attempt to translate from the Persian into English, and, moreover, to appear in print, is such a strange proceeding that the author, in short, must give an account of himself." But Macaulay is supposed to have relied principally on the charges put forth in Sir Gilbert Eliot's speech. This gentleman, who conducted the 'Impeachment' proceedings against Impey, was in turn inspired by Sir Philip Francis—Impey's bitter enemy. It is not difficult, therefore to trace to its source the vindictiveness which fed the minds of the Impeachment Managers with odious exaggerations, which developed with time and a fruitful soil into the terrible indictment against Impey. The chief source of supply emanated from one whom Macaulay designates as 'malevolent," savagely cruel,' and 'in the highest degree arrogant and insolent.' To these accomplishments Sir James Stephen adds 'undying malignity," ferocious cruelty, "falsehood," treachery,' and 'calumny.' This is certainly a very handsome budget of attributes to be compressed into a single individual, especially one who is to become the fountain of information for the future historian. Sir Philip Francis is to be congratulated, if only on possessing more Machiavelian virtues than even were attributed by Macaulay to Impey. Macaulay's instinctive exaggeration on the side of the dramatic has already been shown. Sir James Stephen charges the great historian with a more reprehensible failing than dramatic exaggeration—he charges him with falsehood "Macaulay's account of the quarrel between the Court and the Council deserves to be carefully noticed. It supplies a strong instance of the danger of breaking down the boundary between history and romance . . . . . . The objection to it is that it is absolutely false from end to end, and in almost every particular, as the follow- page 9 ing instances will show." After dwelling upon the outrages to which the most distinguished families of Bengal, Behar, and Orissa were then exposed, Macaulay proceeds:—"The effect of the attempt which the Supreme Court made to extend its jurisdiction over the whole of the Company's territories was like an attempt in England to empower anyone, by merely swearing that a debt was due to him, to horsewhip a general officer, to put a bishop in the stocks, to treat ladies in the way which called forth the blow of Wat Tyler." This is only one of many illustrations presented by Sir James Stephen; others will receive attention later on in this paper. In the meantime it will be well to remind readers that the jurisdiction of the Supreme Court was extended in no such manner as is indicated by Macaulay. The charter under which Impey, Hyde, Le Maistre, and Chambers were appointed very distinctly set forth the districts in their jurisdiction. They never attempted to go beyond their territory. The main question was whether the Chief Justice had not exceeded his jurisdiction by trying Nuncomar for a capital offence when it should have been held to have been a civil one. The original suit had been commenced in the Civil Court; but, Mohun Persand—the prosecutor and attorney for Bollakey Doss—sought to remove it to the Supreme Court, laying the charge of 'forging and publishing' with intent to defraud. Nuncomar had all the privileges granted to a British subject. He challenged no less than eighteen of the Grand Jury, and must be held to have had a most impartial trial. Whatever differences of opinion may exist about the severity of the penalty he was called upon to pay for his crime, none can exist about the uprightness of Chief Justice Impey. No one, after reading Sir James Stephen's book, will believe that: "Impey sitting as a judge put a man unjustly to death to serve a political purpose."
If Macaulay's account of Impey is to be believed, he must have been one of the most odious and contemptible of human beings, committing the most abominable crimes from the basest of motives, or even without any motive at all. For, if this view is correct, he began by committing the most execrable of all murders—a judicial murder under the forms of law—simply out of gratuitous subserviency to Hastings, lie proceeded, for no obvious reason, to erect a system of tyranny and oppression all over Bengal, attempting with his colleagues to usurp "supreme authority through page 11 the whole of the vast territory, subject to the presidency of Fort William." He gave up this monstrous pretension in consideration of an enormous bribe, and he abetted, crimes said to have been perpetrated in Oudh, under the authority of Hastings, simply because 'there was something inexpressibly alluring, we must suppose, in the peculiar rankness of the infamy which was to be got at Lucknow.' In short, he was a friend in human shape, and a very contemptible one. (P. 33, I.)
I have not, in my own experience of persons holding conspicuous positions in life, met with any of the fiends in human shape, or even with any of those parti-coloured monsters with characters like the pattern of a shepherd's plaid—half black, half white—which abound in Macaulay's histories, and form one of the principal defects in those delighful books. 1 have read everything I could find throwing light on Impey's character, and it appears to me that he was neither much blacker nor much whiter, in whole or in part, than his neighbours. He seems to me to have resembled closely many other judges whom I have known. He was by no means a specially interesting person, and was in all ways a far smaller man than Hastings. He seems to have had an excellent education, both legal and general, to have been a man of remarkable energy and courage, and a great deal of rather commonplace ability. I have read through all his letters and private papers, and I can discover in them no trace of corruption. Though he had a strong, avowed, and perfectly natural anxiety about his own interests, he seems to have had a considerable share of public spirit. He was obviously a zealous, warm-hearted man, much attached to his friends, but not the least likely to be a tool of, or subservient to, anyone, and certainly not to Hastings, with whom at one time he had a violent quarrel. There was nothing exceptionally great or good about him; but I see as little ground, from his general character and behaviour, to believe him guilty of the horrible crimes imputed to him as to suspect any of my own colleagues of such enormities.—(P. 35, I.)
When it is borne in mind that Sir James Stephen has left nothing undone, no papers unearthed, in order to arrive at this opinion, the weight clue to it will be universally conceded. The eminent Criminal Jurist has had to arrange and examine a mass of conflicting and undigested evidence which appears to have escaped the attention of every other writer on this singular and important historical event. Amongst other sources from which his information has been obtained, may be mentioned The Bengal Consultations, preserved at the India Office; The Reports of the Parliamentary Committee on Indian Affairs, published between 1772 and 1786; The State Trials, Echoes of Old Calcutta, The Impeachment Charges of Sir Gilbert Eliot, preferred in December 1787; and Impey's Letters and Papers, deposited in the British Museum. In these papers, particularly in the State Trials, it is shown, beyond doubt, that Impey did not commit a 'judicial murder;' neither did he 'hang Nuncomar in order to serve a political end.' The charges of forging and uttering the bond purporting to have been executed by the native banker Bollakey Doss were laid as early as 1770—nearly five years before the Supreme Court arrived at Bengal. The proceed- page 12 ings at that time were confined to the Civil Court—Arlalat—to the maladministration of which was due the appointment of the Supreme Court, which latter, upon its arrival in Bengal, completely absorbed the criminal jurisdiction of the former. Judging from Macaulay's account of the trial, one would suppose that Sir Elijah Impey was the only judge who sat on the bench, since he has omitted all reference to the three Puisne judges who assisted him. Sir James Stephen shows that he sat in banco with Mr. Justice Hyde, Mr. Justice Le Maistre, and Mr. Justice Chambers. In the cross-examination, both Hyde and Le Maistre were much more active in putting damaging questions to the witnesses of the prisoner than the Chief Justice himself, And the most singular point revealed is, that Nuncomar brought about his own ruin by insisting upon the recall of his principal witness, Kissen Juan Doss, who, previous to his recall, had impressed the Chief Justice very favourably towards the prisoner. He was recalled to prove the existence of a Karar-nama—an agreement—between Bollakey Doss and Nuncomar. Had the existence of the Karar-nama been proved, Nuncomar must have been acquitted, because this instrument, if it proved anything at all, proved a monetary transaction between Nuncomar and Bollakey Doss. The witness, however, upon his second examination so hopelessly perjured himself that he must have completely paralyzed whatever good impression his evidence had made on the minds of the jury. Impey admits in his summing up to the jury that this witness had given his evidence so straightforwardly, that he intended to direct an acquittal; but since the whole point turned upon an agreement made with Bollakey Doss first well substantiated by Kissen Juan Doss, but afterwards completely repudiated by him, his evidence went for worse than nothing—for it was extremely damaging to Nuncomar. This witness moreover, was Nuncomar's principal prop in his defence. When, therefore, Kissen Juan Doss' testimony broke down, Nuncomar's case was virtually settled. Nothing which the Chief Justice could have stated from the bench would have changed the minds of the jurors so far as prejudicing them. Their conclusions were already formed from the evidence. Sir Gilbert Eliot, Burke, and Fox all charge Impey with having judicially murdered Nuncomar by the gross and scandalous partiality with which he summed up. It is singular that up till now no writer has ever taken the trouble to test this terrible charge by the light of the only evidence which could confirm or upset it, namely, an examination of the Chief Justice's sum- page 13 ming up to the jury. With keen judicial acumen, Sir James Stephen has detected this unaccountable oversight, and supports the opinions he forms by quoting at great length from that famous charge, which will now be increased in value by reason of the complete vindication it furnishes of the Chief Justice's character.
The prisoner stands indicted for forging a Persian bond, with an intent to defraud Bollakey Doss, and also for publishing the same knowing it to be forged. The offence is laid in several manners, by different counts in the indictment; sometimes calling it a 'writing obligatory,' and sometimes a 'promissory note,' and it is laid to be with an intent to defraud different people differently interested.
I shall lay out of the case all those counts to which I think no evidence can be applied, and shall only mention those to which it may, and shall point out those to which it most particularly applies . . . . . . . . . . . . . . . . . . . .
. . . The only counts to which any evidence, in my opinion, be applied are the first, fifth, ninth, and thirteenth, which charge this instrument to be forged with intent to defraud Bollakey Doss; the eighteenth, which charges it to be forced with intent to defraud Gungabissen and Hingoo Loll, nephews and trustees named in the will of Bollakey Doss; the nineteenth, to which the evidence most forcibly applies, for publishing the same knowing it to be forged, with intent to defraud Gungabissen and Hingoo Loll; the twentieth and twenty-first, which charge the forgery and publication to be with intent to defraud Gungabissen, the surviving executor.—P. 140, I,
You thought them an imposition; but as they were not given in evidence, I desired you would not suffer it to make any impression on you.—P. 144, I.
The witnesses are dead, the transaction is stale, and long since known to the prosecutor. These are objections of weight which you, gentlemen, ought carefully to attend to when you take the whole of the evidence into consideration for the purpose of forming the verdict; and I have no doubt you will attend to them.
In reading from the bench Sir. Farrer's—the prisoner's advocate—defence, the Chief Justice says:—"There is clearly no evidence of his actually having forged the seal." Jeffreys would have claimed that the presence of the seal was quite sufficient evidence that the prisoner had forged it.page 14
In weighing Commaul O. Dien's evidence, which was most important against the prisoner, as it charged Nuncomar with having confessed the forgery to Commaul O. Dien in the following words:—"It is true I have fixed your seal, which was in my possession, to the bond of Bollakey Doss. Having sworn you will give evidence of this (meaning you will swear to this) before the gentlemen of the Adalat, I answered, 'How shall I be able to take false oath?' He answered,' I had hopes in you' I answered, 'Men will give up their lives for their masters, but not their religion; have no hopes of me' He added,' I then went and informed Coja Petruse and Munshi Sudder O. Dien of what had passed.' "—(P. 116,I.)
The Chief Justice remarks:—"It is highly proper you should take these things into consideration; you will consider on what terms they were at the time of these conversations. Confessions of this nature are undoubtedly suspicious, and to which, except there are matters to corroborate them, you should be very cautious in giving too much credit."—(P. 145, I.)
My residence in this country has been so short, and my experience so little, that I can form no judgment of the truth of this observation; it is an appeal to the notoriety of the disposition of the natives. You have been resident long in the country—some, I see, who were born here. You know how far it is true; therefore, I leave it entirely to you.—(P. 146, I.)
It certainly would have been as easy to have forged an absolute bond. But there is no evidence when the bond was forged, if it was forged; it might have been after the payment of the debt due to Bollakey Doss; it might be to give an air of probability to it. But this is matter proper for you to judge upon . . . . . . . . . . . It is ingenious to turn this to the advantage of the prisoner. You will determine whether it can be so applied.—(P. 146, I.)
The evidence on the part of the Crown to support the actual forgery is that of Mohun Persand, who says that Maharajah Nuncomar declared that he had prepared, as drawn out, three papers, the amount of one of which was Rs. 48.021, which is the amount of the present bond, and is applied as a confession of the actual forging; but as the confession may bear a different interpretation, there being no distinction in general made in the interpretation of the evidence between writing or causing to be wrote, drawing or causing to be drawn, it may mean that he caused Bollakey Doss to draw or prepare the bond, and, therefore, I think the first would be a hard and rather a forced construction of his words; and, indeed, he did not specify this bond. Commaul O. Dien also gives evidence that will apply to the forgery. Maharajah Nuncomar told him that he had himself fixed Commaul O. Dien's seal to the bond, and he proves a requisition for Maharajah Nuncomar to give evidence that he was the witness to the bond, and makes him promises if he will. This is the evidence of the forgery; but I think it will be more necessary to attend to the evidence in support of those counts which I have said the evidence page 15 applied to, and which charge the publication with intent to defraud.—(P. 148, I.)
I must again caution you against receiving any impression unfavourable to the prisoner from the hesitation and doubts or exclamations of this witness, or from any other circumstances except what he actually deposed to.—(P. 148., I.)
On the other hand, if you believe the witnesses for the prisoner, a most complete answer is given to the charge.
There are no less than four witnesses present at the execution of the bond by Bollakey Doss, three of whom had been privy to a conversation at Maharajah Nuncomar's when the consideration of the bond was acknowledged by Bollakey Doss; the same persons prove the attestation of the bond by the three witnesses thereto, who are all dead. (P. 151, I.)
It is possible he (Bollakey Doss) might have spoken to the Moor before his coming into the room, which the other witnesses at this distance of time may have forgot.—(P. 153, I.)
Sir James Stephen adds in a footnote—
(This is a suggestion in favour of the prisoner which would not have occurred to me. If Impey had been on the watch for remarks against the prisoner (says Sir James Stephen) he would surely have observed here upon the unnatural agreement between the evidence of Joydeb Chowbee and that of Shaik Ear Mahomed,—156.
Sir James Stephen further shows that Impey permitted evidence to be given which might properly have been excluded. Amongst other things the entry in the books of Bollakey Doss made after his death by the order of Pudmohun Doss, and purporting to have been made in the lifetime of Bollakey Doss. "This passage," says Sir James Stephen, "and the matter which it relates, appear to me inconsistent with the notion that Nuncomar was judicially murdered by Impey. Impey had only to insist upon a rigid application of the rules of evidence, and he would have shut out the strongest part of Nuncomar's defence. According to the strict rules of evidence, the entry made by Kissen Juan Doss in Bollakey Doss' books after his death on the report of Pudmohun was no evidence." (P. 158. I.) Impey, however, continues in his charge to the jury:—"I still leave it to you, and if you believe that such a paper ever existed, it would be the highest injustice not to acquit the prisoner."
"Attempts were made to bring this (the entry in the book) to the knowledge of Mohun Persand; and if it did exist, and was in the knowledge of Mohun Persand, this prosecution is most horrid and diabolical. Mohun Persand is guilty of a crime, in my apprehension, of a nature more horrid than murder."—159, I.
Fox took occasion to turn this sentence very adroitly against Impey in his speech on the impeachment. "In particular let the committee consider," said Fox, "the Chief Justice's artful declaration to the jury that the question before them was whether the page 16 prisoner was guilty of forgery, or his accusers guilty of a crime worse than murder. What was likely to be the effect of such an intimation? It would necessarily operate on the mildness natural to the human mind, and incline them, of course, to prefer the most lenient opinion, and think it was better to find the prisoner guilty of forgery than by his acquittal to pronounce his accusers guilty of a worse crime than murder." Commenting upon this, Sir James Stephen says:—"This remark seems to me shamefully unjust. I read Impey's observation simply as meaning what it says, namely, that if Mohun Persand, knowing of Nuncomar's innocence, prosecuted him, his prosecution was 'most horrid and diabolical,' as it certainly was." (P. 159, I.)
I must desire you to recollect, with regard to this observation, and every one that I submit to you, that you are to make no further use of them than as they coincide with your opinions and observations; and when they do not, you should reject them; for it is you, not I, that are to decide upon the evidence. (P. 163, I.)
There are many observations to be made in favour of the prisoner; and I am sure your humanity will prompt you to enforce them, as far as they will bear. (164, I.)
. . . You must judge how far his credit has been shaken. Most of you know him; you must determine how far he deserves credit, and how probable it is that he would, through malice or any other corrupt motive, accuse an innocent person of a capital crime. If you think him capable of it, you should not give the least attention to his evidence. (P. 165, I.)
This amounts to gratuitously discrediting the evidence for the prosecution in favour of the defendant, which the Chief Justice, however much his impulses might incline him, was not called upon to weaken.
He positively swore to the bond produced by Maharajah Nuncomar, and for which the Company's bonds were given, being the same bond that was produced in evidence; he said he knew it from circumstances, but did not explain what these circumstances were, (P. 165, I.)
. . . and if you think Mohun Persand had it in his power to carry on an effectual prosecution before he has, it is a great hardship to Maharajah Nuncomar, especially as the witnesses to the bond are all dead, and you ought to consider this among other circumstances which are in his favour. . . . . (P. 166, I,)
There is certainly a great improbability that a man of Maharajah Nuncomar's rank and fortune should be guilty of so mean an offence for so small a sum of money. (P. 167, I.)
It is more improbable, as he is proved to have patronised and behaved with great page 17 kindness to Bollakey Doss in his lifetime, that he should immediately after his decease plunder the widow and relations of his friend. (P. 167, I.)
You will consider on which side the weight of evidence lies, always remembering that in criminal, and more especially in capital, cases you must not weigh the evidence in golden scales; there ought be a great difference of weight in the opposite scale before you find the prisoner guilty. In cases of property the stake on each side is equal, and the least preponderance of evidence ought to turn the scale; but in a capital case, as there can be nothing of equal value to life, you should be thoroughly convinced that there does not remain a possibility of innocence before you give a verdict against the prisoner. (P. 169, I.)
. . . You will again and again consider the character of the prosecutor and his witnesses, the distance of the prosecution from the time the offence is supposed to be committed, the proof and nature of the confessions said to be made by the prisoner, his rank and fortune. These are all reasons to prevent your giving a hasty and precipitate belief to the charge brought against him; but if you believe the facts sworn against him to be true, they cannot alter the nature of the facts them selves. Your sense of justice and your feelings will not allow you to convict the prisoner unless your consciences are fully satisfied beyond all doubt of his guilt. If they are not, you will bring that verdict which from the dictates of humanity you will be inclined to give; but, should your consciences be convinced of his being guilty, no consideration, I am sure, will prevail on you not to give a verdict according to your oaths. (P. 169, I.)
The summing-up of the Chief Justice, so carefully reproduced from the original documents by Sir James Stephen, disposes effectually of the charge preferred by Sir Gilbert Eliot, and re-echoed by Burke and Fox, that he showed gross and scandalous partiality.
It will now be interesting to exhibit a few points in the evidence upon which the charge was proved against Nuncomar. The bond bore the attestations of Mahab Roy, Scilaubut (the vakeel of Bollakey Doss), and Abdehoo Commaul Mahomed. It has already been stated that Commaul repudiated his seal as a forgery. The evidence as to Scilaubut's attestation proved that Scilaubut died before Bollakey Doss, so that he could not have attested the deed afterwards made by Nuncomar. Some very important evidence as to his signature was given by a (Coit) native gentleman of high standing, who knew his handwriting well. The Rajah Nobkissen was inter-rogated thus:—
Q.—Do you know Scilaubut?
A.—Yes; he was a vakeel and moonshee of Bollakey Doss.
Q.—Are you acquainted with his handwriting?
A.—I am. I have seen him write many times. (Bond shown him.)
Q.—Is this the writing of Scilaubut?
A.—The words Scilaubut, Vakeel of Bollakey Doss, are not of his handwriting.page 18
Q.—Can you take upon you to swear it is not his handwriting?
A.—Scilaubut has wrote several letters to me and Lord Clive, and has wrote several things before me. This is not the kind of writing I have seen him write; but God knows whether it is bis handwriting or not.
It was also shown that the books of Bollakey Doss contained no record of the bond or the debt secured by it. Being a native banker of scrupulous integrity (as far as was known), it was supposed that Bollakey Doss' books would certainly have shown the indebtedness. Moreover, shortly before his death Bollakey Doss made a trip to Benares, and before bis departure, he executed a power of attorney to Mohun Persand. Attached to this was a complete statement of his debts due and payable. In this schedule Nuncomar's name appears first in the list of creditors for Rs. 10,000 Beyond this, Nuncomar's name was not mentioned, and the date of its execution was 1768. Sir James Stephen suggests that Nuncomar was scarcely the man to deposit this large amount of jewels with Bollakey Doss and leave them to his undisputed possession for a period of seven years without taking a receipt. In this manner two out of the three attestations to the bond were disposed of. Of the remaining testator to the bond. Matheb Roy—Mohun Persaud—the attorney of Bollakey Doss—swore he never knew, saw, or heard of him.
The defence tried to prove that the Commaul O. Dien who gave evidence for the prosecution was not the Commaul O. Dien who attested the bond. This clever subterfuge was sworn to by four different witnesses, who claimed to be present when the bond was executed. There is, however, a very important point in their evidence which Sir James Stephen detects, and which must discredit it in any rational mind, namely, its extraordinary and unnatural agreement. "The suspicious part of their evidence," says Sir James Stephen, "was their extraordinary and unnatural agreement in a number of matters of minute detail which they could have no special reason for remembering." In a foot-note, Sir James Stephen appends in parallel columns the evidence of Joydeb Chowbee and Shaik Ear Mahomed. The evidence is identical, almost verbatim; but Ear Mahomed, who was afterwards cross-examined on parts of his evidence, became confused. "If I begin at the beginning," said this cunning Hindoo, "I can tell. I cannot begin in the middle." On being told to begin again, he repeated word for word what he had stated before. These four witnesses, Joydeb Chowbee, Choyton page 19 Naut, Lollau Doman Singh, and Shaik Ear were all dependents of Nuncomar. Moreover, they were relying on his future reinstatement to obtain employment for themselves. With this the principal evidence terminates, and in a number of ways Sir James Stephen shows that Nuncomar had a thoroughly impartial trial, and was convicted as much on the perjury of his own witnesses as on the evidence of the prosecution.
Thoughtful men, jurists in particular, will discern in Sir James Stephen's valuable work a revelation which produces quite a turn of the historic tables. Elijah Impey is triumphantly vindicated from the charge of having murdered Nuncomar for political motives. The charge, nevertheless, remains, it has simply changed its venue. Instead of Impey being the culprit who should be covered with infamy, history will henceforth declare that Philip Francis and General Clavering, more particularly the former, were the mora assassins of the Maharajah Nuncomar.
Although the evidence of forgery was undoubtedly proved against Nuncomar, it would be absurd to claim that he should have paid the penalty of death for his act. Assuming even that the heinousness of the crime was as well understood in Bengal then—1770—as it was in England, which undoubtedly it was not, the Supreme Court had no right to exact so monstrous a penalty as death. Elijah Impey shows in his letter to Governor Johnstone that he was powerless to reverse the verdict in the then condition of Hindoo society. Whatever may be thought of his contentions, we are bound to give him the benefit of the doubt, seeing how fairly he conducted the case when it was quite within his power to prejudice it. In his letter to Governor Johnstone he says—"My wishes to have represented him as an object of mercy, and to have procured the extension of it to him, were, considering the heavy task I bad on my hands, give me leave to say, more strong than yours could possibly be; and I call God to witness to it was my firm intention so to do, in case he should have been convicted, had not the conduct of that unhappy man, and of the gentlemen who possessed the powers of Government, in my opinion rendered it absolutely necessary, both in the support of the administration of justice and of my own honour, to pursue different measures. The fabrication of new forgeries, the most gross perjuries during the time of his confinement, and even during the course of the trial, was an attrocious aggravation of the original offence. The eyes of the whole country were drawn to it, it was page 20 attended by men of all ranks in the service, and the principal natives in and round Calcutta to a considerable distance flocked to it . . . . . . . . . I leave it to your consideration the effect any of these considerations must have had on the institution of a new court of justice among inhabitants whom the weight and terrors of their oppression have so enslaved, bowed, and depraved that the most intolerable injuries cannot rouse them to sufficient confidence to look up to the purest and fairest tribunal to accuse their oppressors. This consideration had certainly great influence on my mind. . . Had this criminal escaped, no force of argument, no future experience, would have prevailed on a single native to believe that the judges had not weighed gold against justice, and that it would ever preponderate. . . . . . They gave out (those distinguished personages who visited Nuncomar in jail) the judges dare not execute the sentence. . . . . . The members of that Board—the Council—openly threatened to procure the dismission of the judges if they did not relax the sentence. It was afterwards confidently asserted by one member, Clavering, that he had effected the dismission of those judges who were most obnoxious to him, and that it would be brought out by the ships of this season. . . . . . I am sure you will give me credit for sufficient common sense to prevent me from flattering myself that the measure was likely to be either popular or serviceable to me in England. . . . . . I knew the relation of what passed here would be accompanied by partial representations, false colourings, and even false facts and direct accusations. A paper was introduced into the Council here intended to be recorded as an accusation against me personally; but the person who represented it, after a little consideration, did not dare to persist in his first intention. He changed it, and himself moved (Francis moved although Clavering introduced the paper) that it should be burnt by the hands of the hangman; and it was burnt accordingly. I knew the power and weight in England which that gentleman possessed, and I knew that perseverance was dangerous both to my fortune and character. I trust you will give equal credit to the acuteness of my sensations when I found myself inevitably urged to carry into execution a sentence against a prisoner whom, taking into consideration his original crime only, I most ardently desired to have saved, and would have done it, even under the aggravated circumstances, had it been reconcilable to the sense I had of the trust committed to my care. . . I had the dignity, integrity, independence, and utility of that Court to maintain, which page 21 I enthusiastically laboured to make a blessing to the country. . . . Every individual judge thought it necessary, and each of them was so clear in it that no proposition, hint, intimation, came from either of them which had the least tendency to suspend the sentence." (P. 260, I.)
So far Impey must be exonerated for not respiting Nuncomar.. But what shall be said of Francis and Clavering in the rôles they respectively played? Had Elijah Impey received a petition from the Council to respite Nuncomar, he would, as he says elsewhere, assuredly have respected it. Such a petition it was sought to obtain, through the instrumentality of Francis, who had shown all through the trial and afterwards an indecent sympathy with the prisoner. Nuncomar could not possibly approach the Council through the Governor-General, whom he regarded as his real prosecutor; but he sought its offices through one of its members, who affected to be his friend, at least who had encouraged him all through the early proceedings to make his charges against the Governor-General.
The following letter, strange to say, saw the light for the first time in 1868, although it was written on July 31, 1775. We are indebted to Mr. Merivale's 'Life of Francis' for its publication. It throws a stream of light on the darker incidents of this notorious tragedy. It exhibits the character of Francis in all those hideous aspects for which Macaulay and Sir James Stephen give him such abundant credit—malevolence, calumny, hatred, unmitigated lyings- undying malignity, ferocious cruelty, and treachery. Nothing can excuse or condone the treachery of this deep-dyed l ago. The sinister motives which prompted him are now made as clear to us as are Macaulay's exaggerations of Impey's guilt. After having spurred on Nuncomar to that dangerous climax which made the Governor- General his enemy for life, the Hindoo had no friends in the Council on whom he could rely but Francis Clavering and Monson. It is well known that the two latter members were simply the creatures of the unscrupulous Junius, and as such moved neither tongue nor limb without the consent of their infamous chief. On July 31, 1775—the day before the party at Lady Anne Monson's, and five days before Nuncomar's execution—Francis received a petition from the prisoner, declaring his innocence, and supplicating him to lay the same before the Council with a view to their petitioning the Supreme Court to respite him. The petition proceeds as follows:—Most Worshipful Sir,—In the perilous and unhappy circumstances I am page 22 now reduced to at present, I doubt not but what you are acquainted with. I am now thinking I have but a short time to live, for among the English gentry, Armenians, Moors, and Gentoos, few there is who is not against me; but those that are not for me is continually devising all the mischief they can imagine against me, the reason whereof is best known to your worship, for my real intention from the beginning tended that the revenues of the country might have been brought into the honourable Company's treasury without embezzlement, for in former times, when I had the management of the business, I took great care that no part of the revenues were pilfered. And as you and the other two gentlemen are sent out from England with intent to promote the interest of the Company, the good of the country, and lastly to spread the fame and power of his British Majesty, and it was also my earnest wish to serve under you, and to have been an instrument towards this happiness to the natives. But, alas! my best endeavours in prosecuting the salutary means have only tended to entrap my life in this cause, of which I have very little hopes of saving it unlets your worship will be graciously pleased to interpose in my behalf with the justices, and all my hopes under God Almighty is in you, therefore must humbly entreat in the name of God you will be pleased to intercede for me and procure a respite till his Most Gracious Majesty's pleasure is known . . . . . . . . . . As I entirely rely on your worship's endeavour to do me all the good you can, I shall not, according to the opinion of the Hindoos, accuse you on the day of judgment of neglecting to assist me in the extremity I am now in." (P 234,I.)
For odious and cold-blooded villainy, the suppression of this letter exhibits the character of Francis as transcending in perfidy that of any other public man of his time. Assuming for the sake of argument Hastings to be guilty of the charge preferred by Burke, of instigating Nuncomar's prosecution, and conspiring with the Chief Justice for his subsequent execution, he at least had very serious injuries to resent which had been inflicted upon him by the cunning Hindoo, in bringing him into contempt in the country over which he ruled, and annihilating his authority at the council table over which he presided. Again, assuming for argument's sake that Impey sitting as a judge put a man unjustly to death, in order to serve the Governor-General, heinous as the crime would be, the Chief Justice at least bad the plea to urge that Nuncomar was upsetting the authority of the Governor-General, that he was en- page 23 couraging the most dangerous of capital offences—forgery and perjury—and that his removal would be a public benefit, however severe it might be on the culprit himself. But Philip Francis, what shall we say of him, who, acting as his friend, decoyed this wretched Brahmin into the false step of making fraudulent accusa-tions of bribery and corruption against the Governor-General? What shall we say of the man who makes this unfortunate Hindoo first his tool, afterwards his dupe, and finally his victim; who visits him in his cell, through his agents, in order to assure him that the judges dare not carry out their sentence; and who finally weaves the web of destruction so completely about him as to make himself the only agent to whom the condemned man can apply to stay his execution? How shall we describe the man who, for five consecutive nights, retires to rest with a dying man's petition for mercy in his pocket, with no more concern than if it were a reprimand from a cast-off mistress? By what precedent can we gauge the insidious quality of the refined infamy which, while ostentatiously parading itself as conscience, sacrifices its victim in order that his blood might furnish the real assassin with increased evidence of their guilt to be hereafter preferred against the apparent murderers—Hastings and Impey? These are some of the questions which students of Sir James Stephen's book will propound to themselves, and they will doubtless wait with increasing interest to see in what manner the eminent jurist will himself answer them, although it can be pretty well anticipated from the position he takes in this his first instalment to his larger work, the 'Impeachment of Warren Hastings.'
General Clavering comes in for a large share of condemnation, although, compared with Francis, his crime looks small. On the 14th of August, 1775—nine days after Nuncomar's execution,—Clavering informed the council that on August 4, the day before the execution:—"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 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 till the 6th, which was the day after his execution, when I ordered it to be translated by my interpreter." Clavering, by his own admission, knew the paper contained a petition from the prisoner for a respite of his sentence. Yet this most Christian gentleman allowed the paper to remain untouched until after Nuncomar's page 24 execution. In the petition Nuncomar declared himself innocent of the forgery. Nuncomar also charged Impey and the other justices with having taken evidence from his enemies in order to prove him guilty. This portion of the petition was naturally very offensive to Hastings, who saw in it a serious accusation against the uprightness of the judges. On the 16th he moved that a copy of it should be sent to the judges. In this motion Barwell agreed; but Francis, Monson, and Clavering opposed it, Francis vehemently urging that such a course would give to the paper "much more weight than it deserves." Francis went on to say:—"I consider the insinuation 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 hand of the common hangman." Francis afterwards moved that the same petition which was entered in the minutes of the company on the previous Monday—the 14th—should be expunged. The minutes were accordingly expunged and the original petition burnt.
The virtuous indignation exhibited by Francis appeared to the other members of the Council highly commendable. They did not know, nor could they imagine, how deep were the machinations then evolving themselves out of these simple proceedings, and that under the guise of protecting the judges from an indignity Francis was forging links in a chain intended to ultimately drag them to discredit and ruin. Sir James Stephen shows very clearly that Francis real motive was a very sinister one. He knew that immediately the judges were informed of the accusation they would take steps to clear it away at once, and thus dispose forever of the calumny hinted in Nuncomar's petition. To preserve it in an atmosphere of mystery was to increase its weight in future evidence against the accused. Moreover, he had a very shrewd suspicion that the whole case would someday be laid before Parliament. When Impey, at the bar of the House of Commons, asked Francis how he could reconcile his former asseverations in the integrity of his judicial character with his present attitude, Francis declared to the House that he was actuated by a motive to save Clavering from danger, perhaps murder. "My secret predominant motive for proposing to destroy the original paper produced by General Clavering was to save him, and him alone, from the danger to which he had exposed himself by that rash inconsiderate action." page 25 Francis went on to say that at the Council table Monson observed that "if the judges get possession of the paper Clavering may be ruined by it." Upon this Francis observed, "Why, what can they do to him?" "I know not what they can do," said Monson; "but since they have dipped their hands in blood, what is there they will not do?" All this will be taken for what it is worth, a huge fabrication to delude the Committee who were trying Impey. Sir James Stephen observes that the true condition of their feelings—Francis, Clavering, and Monson—was simply that they cared nothing what became of Nuncomar, but sincerely hoped that the Court by hanging him would place themselves in a hateful light. This is proved by their allowing Nuncomar to be hanged without making the smallest effort to save him, and by their subsequently entering upon the minutes of the Consultations charges against the Chief Justice and his associates, which they had condemned as libels in Nuncomar's petition, a copy of which they were not aware had been handed to the Chief Justice. When, therefore, their minutes of September 15 were compared with their action of August 16, their inconsistency completely stultified the desired effect.
Francis made what he thought a very elaborate vindication of himself and a complete incrimination of Impey. He never supposed that such a passage as the following would be read by his countrymen together with the petition the unhappy Nuncomar sent him five days before his execution. But these circumstances serve to exhibit Francis as being a far viler and more odious human compound than even Impey was made to appear by Macaulay. "It is much more material," says Francis, "to his present vindication that he was well convinced his intercession would do mischief instead of good, and would rather hasten than retard the execution of Nun-comar." How it could hasten the execution when it was fixed for the 5th is not clear, nor what mischief it could do. Sir James Stephen makes the following comment:—"He and his friends saw the use which might be made, and which afterwards was made, of Nuncomar's execution, and they did not wish to save him. They had used him against Hastings as far as they could. He was of no further use, except as a sacrifice, and they rejoiced at his death on the gallows."
The Story of Nuncomar is unquestionably the most staggering blow that the authority of Macaulay has yet received. Macaulay made some very extraordinary blunders in his time, amongst which may be mentioned his account of the page 26 origin of the French Revolution and his attack on William Penn. But none of these exhibit such a distortion of facts, or such an exaggeration of circumstances, as the famous essay on Warren Hastings. This magnificent example of literary workmanship absolutely abounds in misstatements and exaggerations. Sir James Stephen has been unsparing in gibbeting them, not out of any want of love or reverence for Macaulay, whom he knew intimately, but because of the duty a high-minded and honourable student of literature—especially a judge—owes to posterity, namely, to help it to unravel the cause of truth. But the author, in taking his farewell, pays an affectionate tribute to the subject of his criticism in which we can all cordially concur. My censures are in themselves a tribute to Macaulay's genius, for if I had not felt him to be an extraordinary man I should not have cared to criticise him so minutely, or to contradict him so emphatically." Nevertheless, Macaulay's authority as an historian is irreparably shattered. The future critic will be discovering in other essays similar introductions of romance to the following:—"There were instances in which men of the most venerable dignity, persecuted without a cause by extortioners, died of rage and shame in the grip of the vile alguazils of Impey." There is scarcely an atom of truth in this accusation in the sense the words are meant to convey. The 'instances of men of the most venerable dignity' amounted to one man, the Cazi, who was found guilty by legal process of corruptly oppressing a helpless widow. He died while on his way to Calcutta to answer for the charge, not in the 'grip of the vile alguazils of Impey,' but under a guard of Sepoys put over him by the Dacca Council who had given bail for him. Moreover, the guard had instructions, and had every reason, to treat him kindly, which they did. It is unnecessary to multiply instances, of which Sir James Stephen gives so many, concerning Macaulay's great failing—erring on the side of romance. Posterity will always treat a man so learned, so distinguished, so brilliant as he was with the utmost reverence. And with some Sir James Stephen's reve-lation will tend to heighten their love rather than extinguish it, as it will open their eyes to Macaulay's stupendous imagination. But the most important effect the book will impress on the minds of students is the position which future history will assign to Francis and Impey. The latter, who has borne the stain of judicial murder for 110 years, has shifted it on to the head of Philip Francis. page 27 Sir James Stephen has honourably vindicated Impey, and has clearly incriminated Francis. No explanation can lift from his hateful brow the gory cap which indicates him as the moral assassin of Nuncomar. To all the loathsome traits he exhibited in his Junian exploits must now be added the most diabolical and odious distinction to which a friend in human form could aspire—the abettor of a murder for the sole purpose of incriminating the innocent.
On the other hand, Impey comes forth triumphantly acquitted of all the most serious charges preferred by Macaulay. He did not enter into any conspiracy with Hastings; he did not, sitting as a judge, put a man unjustly to death; he was not deaf to mercy and pleadings for delay; he did not refuse to respite Nuncomar; he did not hurry across India because there was something inexpressibly alluring in the peculiar rankness which was to be got at Lucknow; he did not transcend in corruption the infamous Jeffreys who drank himself to death in the Tower; nor did he develop an outrageous lust for power and authority. These are just the things he did not do. What he did was at all times consistent with the dignity, honour, and conspicuous sense of justice of an upright judge, and just what Sir James Stephen declares that either himself or his colleagues would have done. The only flaw to which the censorious can point in his official career is the mistake he made in accepting the large salary from the East India Company for the judgeship of the Civil Court of Appeal. Had he waived the salary completely instead of accepting it—although he did not appropriate it—conditionally upon the Lord Chancellor's approval, which he never got, not a single shadow would have remained to darken his reputation. Sir James Stephen exonerates him from every charge bearing the colour of corruption. His conclusion is summed up as follows:—"Impey has owed his moral ruin to a literary murder, of which Macaulay probably thought but little when he committed it."