No More Learning

233 (#261) ############################################

THE ATTACK ON HASTINGS
233
endeavoured to set up some kind of barrier against this wild flood of
censure and criticism. He claimed with good reason that, whatever
the rights or wrongs of the matter, since the Rohilla War was begun
and all but concluded by the past administration, the new councillors
should have been satisfied with recording their formal disapproval of
it, and should not have attempted to prerent its conclusion. He
declined to produce the correspondence between himself and Middle-
ton, though he offered to submit all passages dealing with public
policy to the council, and to send the whole of it for inspection to
Lord North, the Prime Minister.
If the conduct of the majority seemed unreasonable on the ques-
tion of the Rohilla War, it appeared still more perverse on the occasion
of the death of the nawab of Oudh, which took place on 26 January,
1775. Their one aim seemed to be to press hard upon the Company's
ally. They decided that the existing treaty was personal to the late
ruler, and they took the opportunity to conclude a new treaty-the
Treaty of Faizabad-by which all his successor's liabilities were in-
creased. He had to pay a heavier subsidy for the use of British troops;
the tribute paid by the zamindar of Ghazipur passed to the Company;
and the sovereignty of Benares was also ceded to it. Hastings opposed
the treaty, but was outvoted. In view of what was to follow it is
interesting to note that on his suggestion it was made a condition
of the treaty that the raja of Benares should exercise a free and inde-
pendent authority in his own dominions subject only to the payment
of his tribute. On 11 March, 1775, Nandakumar brought against
Hastings his charge of having received from the begam a bribe of
354,105 rupees for appointing her guardian of the young prince. There
followed the famous scene, in which the majority of the council wel-
comed the accusation, and Hastings withdrew in fierce anger, refusing
to be arraigned at his own council board “in the presence of a wretch,
whom you all know to be one of the basest of mankind”,1
What are the facts of the allegations against Hastings? It is best
perhaps to begin with everything that can possibly be said in his
disfavour. Hastings at once drew up a long minute, which according
to Burke and Gilbert Elliot bore every sign of conscious guilt. Even
Sir James Stephen admits that it suggests that there was something
to explain. Hastings never at any time actually denied in so many
words the truth of Nandakumar's statement. In his written defence,
read to the House of Commons, he "entered upon a kind of wrangle
equally ill-conceived and injudicious”? In a letter to Lord North
he uses the curious expression : "These accusations, true or false,
have no relation to the measures which are the ground and subject of
our original differences”. 3 We must assent to Sir James Stephen's
? Idem, p. 72.
1 Stephen, Nuncomar and Impey, I, 53.
3 Gleig, op. cit. 1, 518.


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234
WARREN HASTINGS AND HIS COLLEAGUES
comment that "Hastings's character would no doubt have stood better,
if he had boldly taxed Nandakumar with falsehood”. The began
acknowledged that she had given 150,000 rupees, and Hastings
admitted that he had received the sum as entertainment money, but
it is not clear why so much mystery was made about the transaction.
On the other hand, for Hastings, it must be said that he had every
right to object to the whole procedure of the majority : "I could not
yield [to their claim to investigate the charge at the council board]
without submitting to a degradation to which no power or considera-
tion on earth could have impelled me" i He saw with bitter scorn
that his enemies were hot upon the despicable trail, and he had no
doubt as to the master hand.
At the impeachment, the Lord Chancellor, who was not favourable
to Hastings, commenting upon the whole of the evidence, admitted
that the managers had failed to prove that Hastings had ever received
any part of the 354,105 rupees except the 150,000. There is no question
that he had accepted that sum, but there is no ground for holding
that it was a bribe for the appointment of the begam. He contended
that, when he received the money, the act prohibiting presents was
not yet passed; the allowance was customary, and he could show
that it had been received by Clive and Verelst when they visited
Murshidabad. This was in reality the weak part of Hastings's case.
The Company had forbidden presents long before the Regulating
Act. It was really a monstrous abuse that, when the governor of
Bengal, whose salary and allowances amounted to between £20,000
and £30,000, visited Murshidabad, he should receive from the nawab
an allowance amounting to £225 a day. That it had been taken by
Clive and Verelst was very little justification, and in any case it must
be noted that at least in their day the nawab received a revenue of
fifty-three lakhs, while it had now been reduced to sixteen. There
can be little doubt that we have here the reason for Hastings's failure
to deny the charge; he could not deny that he had received part, and
therefore preferred to deny nothing. Even Sir James Stephen admits
that the transaction, “if not positively illegal was at least question-
able”," and we cannot wonder that in the impeachment the Lord
Chancellor, while acquitting Hastings of corruption, said: "He hoped
that this practice, which however custom might have justified in some
degree, no longer obtained in India". 3 The whole incident illustrates
the exactions made upon Indian powers at this time by the Company's
servants, whenever opportunity offered.
When Hastings had withdrawn from the council, the majority
resolved that "there is no species of peculation from which the
Governor-General has thought it reasonable to abstain". They de-
"
1 Gleig, op. cit. I, 515-16. 2 Stephen, Nuncomar and Impey, I, 72.
3 Debates of the Lords on the Evidence
. . . , p. 147.


## p. 235 (#263) ############################################

NANDAKUMAR'S TRIAL
235
clared that he had received the sums specified, and ordered him to
refund the money into the Congpany's treasury. Owing to the dramatic
series of events that followed, and the fall of Nandakumar, the charges
were never proceeded with. Ultimately the information and papers
of Nandakumar were submitted to the Company's legal adviser in
Calcutta. He did not advise a prosecution in India, but gave it as his
opinion that the evidence should be sent home. There the Company's
law officers declared that the statements could not possibly be true.
We must now return to the events that brought about the ruin of
Nandakumar and the stay of all proceedings against Hastings. On
23 April, Hastings, Barwell and Vansittart prosecuted Fowke,
Nandakumar and another Indian on a charge of conspiracy. The
charge was that they had endeavoured to coerce a certain Indian,
named Kamal-ud-din, to accuse Hastings and Barwell of having
received other bribes. At the assizes in July all the defendants were
acquitted of conspiracy against Hastings; Fowke and Nandakumar
were convicted as against Barwell, Fowke was fined; no sentence was
passed on Nandakumar since he was by that time lying under sentence
of death for forgery. Meantime, on 6 May, before Justices Lemaistre
and Hyde, sitting as magistrates, Nandakumar was committed for
trial on a charge of forgery brought against him by the executor of
an Indian banker. His trial took place 8 to 16 June; he was found
guilty, sentenced to death, and executed 5 August, 1775. The sequence
of events was curious, and it was long believed that the unhappy man
was put to death, nominally for forgery, but really for having dared
to accuse the governor-general. Burke epigrammatically summed up
the popular view when he said in his speech on Fox's India Bill :
The Raja Nandakumar was, by an insult on everything which India holds
respectable and sacred, hanged in the face of all his nation, by the judges you
sent to protect that people, hanged for a pretended crime, upon an ex post facto
Act of Parliament, in the midst of his evidence against Mr. Hastings. 1
In considering the question, it is important to remember that there
were two distinct charges against Nandakumar; the charge of con-
iracy in which Hastings and Barwell were the avowed prosecutors;
the charge of forgery, in which the prosecutor was an Indian, Mohan
Prasad, though it was alleged that the real initiative came from
Hastings.
The whole question has been examined by Sir James Stephen in
his Nuncomar and Impey, and he claims to have shown that Nanda-
kumar had a perfectly fair trial, and that in his summing up Sir Elijah
Impey gave full weight to any point that could possibly tell in favour
of the accused. This is certainly corroborated by the statements of
Farrer, Nandakumar's counsel in the famous trial, who was called to
give evidence at Impey's impeachment. He was examined at great
length, and, though during the trial he had sometimes come into
>
1 Parliamentary History, XXIII, 1369.


## p. 236 (#264) ############################################

236
WARREN HASTINGS AND HIS COLLEAGUES
.
collision with the Chief Justice, he declared that all the favour in the
power of the court had been extended towards his client, and parti-
cularly from Sir Elijah Impey. Stephen points out that all four
judges were upon the bench, and therefore, if there was a conspiracy
between the Supreme Court and the governor-general, we have to
assume, either that the whole bench was privy to it, or that they
were entirely dominated by Impey's personality. The jury consisted
of twelve European or Eurasian inhabitants of Calcutta, and the pri-
soner had, and exercised, the right to challenge. Stephen maintains
that the charge of forgery developed in a natural way out of long-
standing litigation which had begun in December, 1772. A civil suit
against Nandakumar having failed, his adversary had determined to
prosecute him criminally, and the first steps in this process had been
taken six weeks before Nandakumar produced his charges against
Hastings at the council board. As it has been said, “that charge would,
in the natural course of law, have been made at the very time when
it was made, though Nandakumar had never becoine a willing tool
on the hands of Messrs Clavering, Monson and Francis". 1 Against this
it must be mentioned that Mr. H. Beveridge, in his Trial of Maharaja
Nanda Kumar, denies that there was any real attempt at a criminal
prosecution till May, 1775, and he gives some shrewd reasons for his
conclusion. Stephen rightly contends that hastings's subsequent
reference to Impey as one "to whose support I was at one time
indebted for the safety of my fortune, honour and reputation",? which
Macaulay supposed to refer to the trial of Nandakumar, almost
certainly refers to the incident of the resignation of 1777. Quite apart
from every other reason, it is of course inconceivable that, if Macau.
lay's supposition had been true, Hasting's would have been indiscreet
enough to use the words quoted.
There seems, on a careful review, to have been only two incidents
in the trial to which exception may be taken. First, the judges cross-
examined-and cross-examined rather severely—the prisoner's wit-
nesses. Their reason was that this was done to prevent the ends of
justice from being defeated, counsel for the prosecution being incom-
petent. The reason seems strangely inadequate; it can never be
proper foi judges to act the part of advocate. When Farrer protested,
Justice Chambers was obviously uneasy on the point, but the protest
did not stop the practice. Secondly, Impey, from lack of Indian
experience, told the jury that if Nandakumar's defence was over-
thrown, the fact condemned him; but, as Stephen points out, this rule
cannot be applied in the East, where a perfectly good case, should
proof be otherwise lacking, is often bolstered up by flagrant perjury.
It is certain that there was no conspiracy between Hastings and
Impey to murder Nandakumar. It is possible, as Sir Alfred Lyall
1 Beveridge, A Comprehensive History of India, II, 378.
Gleig, op. cit. , 255.


## p. 237 (#265) ############################################

NANDAKUMAR'S TRIAL
227
hints; that Hastings, knowing that Nandakumar was liable to a serious
charge and was probably guilty, conveyed to Mohun Prasad the
intimation that it was a favourable opportunity to bring forward the
case, and “the fact that Impey tried the man with great patience, for-
bearance, and exact formality, might prove nothing against an inten-
tion to hang him, but only that he was too wise to strain the law
superfluously”. ? There is, however, absolutely no evidence for such a
supposition. If it is entertained, it must depend for its justification
upon certain evidences of implacable enmity, which it may appear
to some that the conduct of Hastings displayed after the trial.
The question of Nandakumar's guilt is a different one from the
fairness of the trial, and it is probably impossible at this distance
of time to come to any definite conclusion. Sir James Stephen is
extremely cautious here. He says that, if he had to depend upon the
evidence called for the prosecution, he would not have convicted the
prisoner-a notable admission on his part. It was the mass of perjury
on the other side and the statements of Nandakumar's own witnesses
that tipped the scale against him. There is a further doubt whether
the English law making forgery a capital crime ought to have been
considered at this time as applicable to India. The question is very
technical and abstruse, Impey held that the act under which
Nandakumar was tried, and which was passed in 1729, was extended
to India in 1753, and that therefore a forgery committed, as his was,
in 1770, fell under it, for which he had the precedent of Govinda Chand
Mitra; but Stephen admits that the rule afterwards universally
accepted by the courts was that the English criminal law as it existed
in 1726 was what was in force in India at the time. On that reasoning
the act of 1729 could not have applied.
There is a further question apart from those of the fairness of
the trial, the guilt of the prisoner and the question of jurisdiction.
There can be no doubt that the infliction of the death penalty was so
excessively severe that it amounted to a miscarriage of justice, and
for this at any rate the court, and possibly other persons, may justly
be condemned. Stephen himself admits that fine and imprisonment
would have met the case, and Impey and Hastings have only them-
selves to blame if their conduct in the matter suggested to the world
that they were determined to put Nandakumar out of the way. The
Supreme Court by their charter had authority "to reprieve and
suspend the execution of any capital sentence, wherein there shall
appear; in their judgment; a proper occasion for mercy". 3 They
could have hardly had a more convincing case for the exercise of this
discretionary power. Forgery was universally regarded by Indians
as a mere misdemeanour, carrying with it hardly any moral condem-
nation. Hastings himself had written a few years before-and the
1 Lyall, Warren Hastings, p. 71.
? Stephen, Vuncomar and Impey, u, 35.
3 Idem:-1,:19.


## p. 238 (#266) ############################################

238
WARREN HASTINGS AND HIS COLLEAGUES
words sound almost prophetic—"there may be a great degrec of
injustice in making men liable at once to punishments with which
they have been unacquainted, and which their customs and manners
have not taught them to associate with their idea of offence". 1 There
was the additional reason that the execution of a man who was the
accuser of the governor-general might be misunderstood by the Indian
population. Impey afterwards declared that, if this ground had been
put forward in any petition, he would have reprieved the prisoner, and
Stephen agrees that he could have taken no other course. To this
we may perhaps reply by the question: Was it really necessary, or
ought it to have been necessary, to call the attention of the Chief
Justice to the fact?
The judges therefore were responsible for the harsh decision to
carry out the death penalty. Yet we must not necessarily assume that
their motives were corrupt. They were very jealous of their preroga-
tive, pedantic in their legal interpretations, and too self-opinionated
to recognise that they had not been long enough in India to under-
stand the necessity of adapting the jurisprudence of the West to the
environment of the East. “I had”, said Impey afterwards, “the dignity,
integrity, independence and utility of that Court to maintain. " He
held that the prevalence of forgery in Bengal required that very
strong measures should be taken to suppress it, and that to have
reprieved a man of such wealth and influence as Nandakumar would
have created a suspicion that the Supreme Court was subservient to
the executive. "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. '
As for Hastings, he had constitutionally no power to reprieve the
prisoner. He had therefore a perfect right to leave the matter to the
judges, but he could undoubtedly have exerted himself in the cause
of mercy, and perhaps it may be said that his character would have
stood far higher if he had done so. He here showed that streak of
relentlessness in his otherwise kindly nature which appeared on one
or two other occasions. He was without pity, and glad that
Nandakumar was being removed from his path. "I was never”, he
wrote, “the personal enemy of any man but Nandakumar, whom
from my soul I detested, even when I was compelled to countenance
him. " 4 Hastings, 'we have said, failed to exert himself to procure a
reprieve, but it must be added that there is some reason for thinking
that. one of his dependents, an Italian named Belli, exerted himselt to
prevent Farrer from presenting a petition for a reprieve.
Farrer persisted in his efforts to procure petitions. One was to be
signed by the jury, but only a single juryman would lend his name.
1 Monckton Jones, Warren Hastings in Bengal, p. 158.
2 Stephen, Nuncomar and Impey, 1, 260.
8 Idem, po 257.
Gleig, op. cit. In, 337-8.


## p. 239 (#267) ############################################

THE MAJORITY AND NANDAKUMAR
239
The second was to come from the council. Only Francis approved
of it; Monson and Clavering declined to have anything to do with it,
on the ground that it "had no relation whatever to the public con-
cerns of the country”—a reason that did not usually influence them
—and that they "would not make any application in favour of a man
who had been found guilty of forgery”. It is difficult to understand
why the majority of the council did not petition for a reprieve. They
owed it to their wretched dupe Nandakumar, and they might have
seriously embarrassed Hastings and the court. The theory of Hast-
ings's enemies afterwards was that the execution had struck such
terror into the hearts of all men, that no one dared henceforward to
cross his path; but it seems impossible to believe that such motives
could affect men in the position of Monson and Clavering. There is
the less reason for the supposition, since the contemptuous and heart-
less way in which they answered Farrer seems to show that they
had given up believing in Nandakumar, if they had ever done so, and
were ashamed of their connection with him. What of Francis?
Although he had given a perfunctory approval of the proposed peti-
tion, he made no other effort. He entirely disregarded the piteous
letter written to him by Nandakumar from prison, and, as Stephen
says, "left him to die, when he could have saved him with a word”. ?
However much the death of Nandakumar reflects upon the mercy of
Hastings and the judges, it casts the darkest and most sinister shadow
over the reputation of the men who used him for their own purpose
and then callously and contemptuously flung him to the wolves. To
Francis no doubt came the dastardly consolation that Nandakumar
dead would be an even more potent weapon than Nandakumar living,
for his future campaign of persecution against the governor-general.
Nine days after the execution, Clavering laid before the council a
petition from Nandakumar, which he had received the day before
that event, in which for the first time the doomed man suggested that
he was the victim of a conspiracy between the judges and the gover-
nor-general. Francis seems to have seen the use that might be made
of this document, but for the moment he took the lead in reprobating
it. He described it as "wholly unsupported and . . . libellous”,3
proposed and carried his resolution that it should be burnt by the
common hangman. When, in after years, he was confronted with his
action at the time, he declared that it was due to the fact that he
"feared for Clavering's safety, not knowing to what length those
judges, who had dipped their hands in blood to answer a political
purpose, might proceed on the same principle”.
All the circumstances in regard to this document are somewhat
mysterious. When it was presented, Hastings proposed that it should
be sent to the judges, but the majority opposed him and accepted
3 and
1 Siephen, Nuncomar and Impey, 1, 233.
3 Idem, p. 239.
Idem, o, 94.
8


## p. 240 (#268) ############################################

240
WARREN HASTINGS AND HIS COLLEAGUES
Francis's resolution that it should be destroyed with all copies. All
this took place in the secret department of the council on 14 August.
On 28 August the judges asked to be furnished with a copy of the
libel. The council declined their request, and on the motion of Francis
a letter was sent to them asking them to say “from whom you receive
the imputed information, which appears to have been conveyed to
you on this and other occasions, of the proceedings of this Board in
our secret department”. The judges were also informed that the
petition and all copies had been destroỳed. In spite of this, Hastings
gave a copy of the document to Impey under an oath of secrecy that
he should not disclose it except to his fellow-judges. This fact was
revealed twelve years later, when Impey produced a copy at the time
of his impeachment. Three deductions follow from this incident. In
the first place, it is clear that Hastings went behind the decision of the
council, a highly unconstitutional act, and also violated his oath of
office. In regard to this his staunch defender Stephen can only say:
Oaths of such a nature never bind closely, and it is one of the great ob-
jections to their use that, if they are rigidly enforced they often do cruel
injustice, and that, if tacit exceptions to them are admitted, they not only
become useless for the immediate purposes for which they are imposed, but
are also snares to the honesty of those who take them. Whether in the parti-
cular case there was any moral guilt in the breach of the oath of secrecy, and
whether its terms. were, or were not, subject to exceptions express or implied,
are points on which I express no opinion. 2
Secondly, the facts reveal a certain lack of straigntforwardness, which,
however much we may excuse it, owing to the fiendish persecution to
which he was often subject, sometimes characterises Hastings's con-
duct. As Stephen admits, he was "a curiously cautious secret man"
_"of his conduct to his colleagues I will only say that, if he had
acted openly, he would have done better than he did”. 3 Lastly, we
cannot shut our eyes to the fact that the incident implies, as Francis
noted and Stephen agrees, a very strong intimacy between Hastings
and the Chief Justice, and "it greatly weakens Impey's argument
that he had no means of knowing the particulars of Nandakumar's
accusations against. Hastings, because they were made in the secret
department under an oath of secrecy”. 4
)
No part of Lord Macaulay's essay is so prejudiced as the famous
passage on the terror in Bengal caused by the action of the Supreme
Court, and the corrupt nature of the bargain or sale by which in the
end Hastings is alleged to have bought or bribed the Chief Justice.
The question is a very difficult one and much of the evidence is
contradictory. Before considering it in detail, we may perhaps lay
down the following points :
1 Stephen, Nuncomar and Impey, 1, 251.
3 Idem, p. 116.
2 Idem, u, 115.
4 Idem, p. 115.


## p. 241 (#269) ############################################

THE SUPREME COURT
241
(i) A conflict of jurisdiction was inevitable; it was inherert in
the charter establishing the court and in the clauses of the Regulating
Act. The framers of that act shrank from the logical course of pro-
claiming the king of England sovereign in Bengal, but that sovereignty
was really implied in the very constitution of the court. And, as
Macaulay said, they "had established two independent powers, the
one judicial, and the other political; and with the carelessness
scandalously common in English legislation, had omitted to define
the limits of either".
(ii) It cannot be denied that the court caused much disturbance
and discontent by exercising its powers too rigidly and too pedanti-
cally. But the point is, what classes were aggrieved and offended? If
it can be shown that the zamindar class and the European inhabitants
of Bengal objected to the court because it restrained oppressive
practices against Indians, then the agitation is highly honourable to
the judges, and this is as a matter of fact the claim put forward by
Impey's son and largely accepted by so impartial and exact an
enquirer as Sir James Stephen.
(iii) We must in any case entirely discard the overcharged and
overheated language of Macaulay. All we know of Sir Elijah Impey's
life makes it impossible that he could ever have been the monster of
iniquity described by Macaulay. We must remember that the worst
charge against Impey-and it may not be true—is that he harried
and distressed the population by exercising too meticulously the legal
powers given him, and that, in accepting the new office offered him
by Hastings, he was not careful enough to think out all the conse-
quences, or to visualise the manner in which the affair would strike
hostile observers. The whole incident casts a serious slur on the
literary and historical integrity of Macaulay.
There were many points in dispute as between the council and
the court; for instance, the court admittedly had jurisdiction over
British subjects but the words had not been carefully defined.
“In one sense”, says Ste en, “the whole population of Bengal, Behar, and
Orissa were British subjects. In another sense, no one was a British subject
who was not an Englishman born. In a third sense, inhabitants of Calcutta
might be regarded as British subjects, though the general population of Bengal
were not. " 1
Secondly, had the court jurisdiction over the provincial councils?
Thirdly, had it jurisdiction over the zamindars? .
Something must now be said of the progress and gradual growth
of the dispute. Hastings obviously looked forward to the advent of
the court with dread, but hoped that his friendship with Impey might
prevent the worst consequences. In 1774 he wrote to a friend: "The
court of justice is a dreadful clog on the government, but I thank
God, the head of it is a man of sense and moderation”. 2 Clearly, if
1 Idem, p. 126.
2 Gleig, op. cit. 1, 471.
16


## p. 242 (#270) ############################################

242
WARREN HASTINGS AND HIS COLLEAGUES
the question had only lain between the governor-general and the
Chief Justice, a modus vivendi would have been arrived at.
Hastings, therefore, did everything in his power to smooth the
path for the judges, and was determined if possible to put the best
construction on all their actior. s. He would, of course, in writing to
Lord North, naturally avoid speaking ill of the court, but we find
him definitely committing himself to the statement that the protection
which it affords to the weak against oppression had already been felt
by many. In 1776 he wrote:
The conduct of all the judges has been directed by the principles of mode-
ration, and a scrupulous attention to the just authority of government, and to
the laws and customs of the people. I am afraid that to this prudent caution
alone it must be ascribed, that the undefined state of the powers of the Gov-
ernor-General and Council and of the Supreme Court of Judicature have not
been productive of ill consequences both to the company and to the country. 1
He foresees difficulties, because it will scarcely be found possible in
practice "to make the distinction intended by the Act and Charter,
between such persons as are employed in the service of the Company,
or of British subjects and other native inhabitants”. He suggests, to
further a good understanding between court and council, that the
Chief Justice should have "a fixed or occasional seat” at the council
board, and that the Company's courts should subsist by delegated
powers from the Supreme Court and be dependent upon it. ?
In 1776 he worked out and sent home a plan for amalgamating
the Supreme and the Company's courts-a scheme which would have
-a
in part anticipated that which he effected less constitutionally on his
own initiative in 1780. His plan was, first, to extend the Supreme
Court's jurisdiction to all parts of the province, that is, to do away
with the nawab's shadowy authority and ensure "that the British
sovereignty, through whatever channels it may pass into these prc-
vinces, should be all in all”. 3 Secondly, to unite the judges of the
Supreme Court with members of the council in control of the Sadr
diwanni adalat, or the Company's chief civil court of appeal. Thirdly,
to give the provincial councils a legal authority in the internal govern-
ment of the country and in the collection of revenue. Of this plan
Hastings writes : “All the judges approve of it, and I like it myself,
which is not always the case with my own productions". The plan
was of course opposed by the majority of the council, who showed
their usual controversial ability and lack of real statesmanship (for
it was impossible to act as though a tabula rasa lay before them),
saying:
It is proposed to give the Supreme Court a complete control over every part
of the country. . . . The complaint is that they have assumed more than they
have a right to; the redress proposed is to set no limits to their power. 5
1 Idem, II, 16. 2. Idem, I, 541-2. 3 Idem, , 14, 50. 4 Idem, p. 35.
6. Forrest, Selections from . . . State Papers in the Foreign Department of
the Government of India, II, 540.


## p. 243 (#271) ############################################

DISPUTES WITH THE COURT
213
At first Hastings attributed the disputes, when they came, mainly
to the majority on the council : "It seems to have been a maxim of
the Board to force the court into extremities for the purpose of finding
fault with them”, and he admits that there have been “glaring acts
of oppression committed by the Board, which would have produced
the ruin of the parties over whom they were exercised, but for the
protection of the court”. At this time, too, Hastings agreed that it
was necessary to bring before the court persons who were eventually
excluded from its jurisdiction in order to establish their exemption :
“their right to this exemption must be tried to be known". 1 Of
himself he says with truth : "On every occasion which was likely to
involve the Board in contests with the court, I have taken a moderate
and conciliating part”. ? But the plan of 1776 not having been
accepted, the position gradually became worse and Hastings and
Impey drifted apart.
The trouble centred round two famous cases. The first was the
Patna case, 1777-9. The question at issue was the right of the Supreme
Court to try actions brought against the Indian judicial servants of
the Company for acts done in their official capacity. The Supreme
Court cast in heavy damages the Muhammadan law officers of the
Patna council. Sir James Stephen has exhaustively analysed the
whole case, and shows pretty conclusively that the Supreme Court
was mainly in the right. The provincial councils were worthless
bodies and had allowed their Indian officials far too much power :
If the Patna council was a fair specimen of the rest, the provincial councils,
considered as courts of justice, were absolutely worthless, and no system for the
administration of justice, which deserved the name, existed at that time out of
Calcutta. 3
The second case was the Kasijora case, 1779-80. The question at
issue here was whether the Supreme Court had the right to exercise
jurisdiction over everyone in Bengal, Behar and Orissa, and especially
over the zamindars. Hyde had issued a writ against the raja of
Kasijora, a zamindar of the Company. The council told the raja he
was not subject to the jurisdiction of the Supreme Court, and, when
the Supreme Court sent sheriff's officers to apprehend him, the council
sent some companies of sepoys to arrest the sheriff's officers and bring
them back to Calcutta. Hastings might well say: "We are upon the
eve of an open war with the court”. 4 Even now he did his best to
look at the question fairly. He still felt doubtful about the legal
point, though he was convinced of the practical inconveniences arising
from the court's action. Referring to the danger to the public revenues
and to the quiet of the provinces, and to the irregular and illegal
nature of the writ, he says : “God knows how far we are right on the
last conclusion. I am sure of the former”. 5 But he now came to agree
2 Idem, p. 248.
1 Gleig, op. cit. u, 36.
3 Stephen, Nuncomar and Imphey, u, 178.
* Gleig, op. cit. 1, 244:
5 Idem, p. 245.


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244
WARREN HASTINGS AND HIS COLLEAGUES
with the majority of his council, that zamindars were neither British
subjects nor the servants of British subjects, and that the court could
not be allowed to drag “the descendants of men who once held the
rights of sovereignty in this country, like felons, to Calcutta on the
affidavit of a Calcutta banyan or the complaint of a court serjeant”.
The justice of the whole matter is very difficult to decide. It has
generally been assumed that Hastings was in the right, especially
as he was normally so loth to infringe the powers of the court. But
Sir James Stephen declares that in the Kasijora case “the council
acted haughtily, quite illegaliy, and most violently”? There could,
at any rate, be no doubt that Impey was acting in good faith and he
felt bitterly the burden of taking on his shoulders all the unpopula-
rity. He felt bound to protect, as he thought, the peasant and the
poorer classes against the European magistrates, "who never appeared
themselves" but oppressed the ryots through native agents. We
find him saying in a private letter at this time : "We are beginning
to make the vultures of Bengal to disgorge their prey”. 4
At the same time it must be admitted that the position in Bengal
was rapidly becoming deplorable. The proceedings of the court were
extremely vexatious to a large class of people, and there was no doubt
that the judges were becoming very unpopular. The memory of this
long lingered in Bengal. Cornwallis, who was one of the most tolerant
of men and who could never be induced to speak against his col-
leagues or predecessors unless it were necessary, wrote in 1786: "I
trust you will not send out Sir Elijah Impey. All parties and descrip-
tions of men agree about him”. 5 Further, though the evidence from
this source is probably largely vitiated by partiality, the ninth report
of the select committee of 1781 declared that they had been able to
discover very few instances of relief given to the natives against the
corruptions or oppressions of British subjects. “So far as your com-
mittee has been able to discover,” they wrote, “the court has been
generally terrible to the natives, and has distracted the government
of the company without substantially reforming any one of its
abuses. ” 6
In any case Hastings naturally and rightly desired to put an end
to the deadlock, and in 1780 he hit upon the ingenious scheme of
offering Impey the presidency of the Sadr diwanni adalat. It is
important to realise exactly what this meant. Impey was already at
the head of the Supreme Court, sent out in the name of the king to
exercise jurisdiction over all British subjects, and especially to deal
with complaints against the Company's servants. He was now placed
at the head of the judicial system of the Company, which was largely
1 Gleig, op. cit. II, 248. 2 Stephen, Nuncomar and Impey, II, 220.
3 E. B. Impey, Memoirs of Sir Elijah Impey, p. 134. 4 Idem, p. 148.
5 Ross, Correspondence of . . . Cornwallis, I, 238.
Report from Committees of the House of Commons, VI, 48.


## p. 245 (#273) ############################################

IMPEY AND THE SADR COURT
245
staffed by those very servants. Macaulay's accusation is that Impey
accepted a bribe, compromised the independence of the Supreme
Court and finally became "rich, quiet, and infamous". 1 Contemporary
opinion in England, especially after Francis had returned home to fan
the flame, was not much more favourable. In May, 1782, the court
of directors and the House of Commons petitioned the crown for
Impey's recall. He left India in 1783 to answer the charge
of having accepted an office granted by, and tenable at the pleasure of, the
servants of the East India Company, which has a tendency to create a depend-
ence in the said Supreme Court upon those over whose actions the said court
was intended as a control. 2
It is difficult to understand the warmth of feeling aroused. The
practical advantages of the plan were great. A real control was now
exercised by a trained and expert judge, through an appeal court
which was at last a reality, over weak provincial courts which badly
needed guidance. The old Sadr diwanni adalat had been a shadowy
body, and, in practice, says Sir James Stephen, never sat at all
because the governor-general, its nominal president, had no time
to undertake judicial duties. Hastings himself could describe it in
1776 as “having been long since formally abolished". The plan also
did away with the friction between the judicature and the executive.
It enabled Impey to introduce his code of procedure at the cost of eight
months' severe labour—that code of which Sir James Stephen writes :
"It is not a work of genius like Macaulay's penal code . . . but it is
written in vigorous, manly English, and is well arranged”. 4
At the same time some tactical mistakes were undoubtedly made.
It was an unfortunate circumstance that the salary attached to the
new office was revocable at the will of the governor-general and
council, but it was almost certainly inevitable in the conditions. The
Company's government had no power to create an office independent
of itself. Still, it enabled the East India Company's legal adviser to
say : “Impey is found one day summoning the Governor-General and
the council before his tribunal for acts done as council, and the next
accepting emoluments nearly equal to his original appointment to be
held during the pleasure of the same council”. 5 All this, unhappily,
gave the impression that Impey was compromising his dispute with
the council for a money consideration. Secondly, since the Supreme
Court had been especially created to be independent of the council, it
looked as though the spirit of the Regulating Act was being violated.
Sir James Stephen himself, Impey's strenuous champion, thinks that
the Chief Justice had put himself in an invidious position.
He did undoubtedly weaken, if it is too much to say that he forfeited, his
judicial independence. He exposed himself to a temptation to which no
1 Lord Macaulay, Essays, p. 624. 2 Parliamentary History, XXII, 1411.
3 Gleig, op. cit. II, 29. 4 Stephen, Nuncomar and Impey, II, 246.
6 Reports from Committees of the House of Commons, v, 422.


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246
WARREN HASTINGS AND HIS COLLEAGUES
judge ought to expose himself. (His action] was wrong, though I do not
think it was actually corrupt. 1
Thirdly, it is perhaps reasonable to ask whether such sweeping
changes ought to have been made without approval first gained from
home.
We have, however, to remember certain further circumstances in
Impey's favour. He wrote at once to the Attorney-General in London,
offering to refund the salary, if ministers thought the acceptance of
it improper; and apparently he did afterwards refund it. He claims
to have told Hastings that his assumption of the office would not in
the least affect his conduct in regard to the question at issue between
the council and the court. He wrote in 1782 with some truth :
I have undergone great fatigue, compiled a laborious code, restored con-
fidence to the suitors and justice and regularity to the courts of justice, and
settled the internal quiet of a great empire and for my recompense shall
have lost my office, reputation, and peace of mind for ever. 2
Finally, to some extent, as Impey declared in his speech at the bar
of the House of Commons, the judges reaped all the odium of the
violent struggle of parties. One faction bitterly attacked the judges
as being partisans of the opposite faction. That opposite faction, cautious to
avoid the imputation of undue connection with the judges, found it in their
interests not to defend them. Neutral men (if such there were) took no part,
and the judges, who really were (as they ought to have been) of no party,
were left undefended. 3
Impey on his return to England was left undisturbed for four
years, but in 1787 he was impeached by Sir Gilbert Elliot, afterwards
Governor-General of India and Earl of Minto. Six charges were
brought against him, namely Nandakumar's case, the Patna case,
the illegal extension of the jurisdiction of the Supreme Court, the
Kasijora case, the acceptance of the office of judge of the Sadr diwanni
adalat, and the taking of the affidavits in-Oudh in relation to the
Chait Singh business. The impeachment was frankly made a party
affair. Almost all the prominent Whig leaders were associated with
it. It broke down completely and humiliatingly. Only the first
charge was proceeded with. Summoned to the bar of the House of
Commons, Impey made an eloquent and triumphant defence. He
spoke extemporaneously and without the aid of notes. His speech,
which lasted two days, gives a striking impression of his ability. No
one can read it without feeling that it is the work of a capable and
sincere man. It is far franzer and more spontaneous than the laboured
and confused paper read as an apologia by Hastings.
The thorough unfairness of the Whig attitude is shown by the fact
that Burke and Fox made it a matter of complaint that Impey had
2 Idem, p. 245.
1 Stephen, Nuncomar and Impey, u, 238.
3 Parliamentary History, XXVI, 1347.


## p. 247 (#275) ############################################

REFORM OF THE SUPREME COURT
247
delivered an unprepared speech and had not submitted a written docu-
ment, whereas, when Hastings presented a written defence, it was
alluded to contemptuously by Burke as that "indecent and unbecoming
paper which lies on our table". 1 Impey's masterly speech really
shattered the case. Pitt declared that, after hearing it, he could say
that he never gave any vote with less hesitation than the one he was
going to give against the impeachment. The division on the first charge
was 73-55 against the impeachment. A half-hearted attempt was made
later to raise the second charge, the Patna case, but it was negatived
without a division. It would seem that few men have met with
less justice from history and the verdict of their own contemporaries
than Sir Elijah Impey.
In the meantime the question between the council and the court
had been definitely settled by statute, and, as Sir Courtney Ilbert
says, the decision of parliament was substantially in favour of the
council and against the court on all points. Two petitions had been
sent home, one by the governor-general and council, and the other
ky 648 British subjects resident in Bengal. The first dealt mainly with
the Kasijora case. The council claimed that it was bound to protect
the people against "the control of a foreign law, and the terrors of a
new and usurped dominion”. If the court prevailed, "these pro-
vinces, and the British dominion in India, must fall a certain sacrifice
to the ultimate effects of the exercise of an impolitic, unnatural and
lawless authority":3 Finally, they declared that they had no alter-
native but public ruin, if they submitted to the jurisdiction assumed
by the Supreme Court, or personal ruin, if they opposed it. The
second petition protested against the danger of "giving to the
voluminous and intricate laws of England a boundless retrospective
power in the midst of Asia". !
These petitions were the real cause of the appointment of the
Select Committee of 1781, to which reference has been already made,
and the result was the act of that year amending the constitution of
the Supreme Court. The most important of its provisions was that
the governor-general and council were not to be subject to the court
for anything committed, ordered, or done by them in their public
capacity, but this exemption did not apply to orders affecting British
subjects. The Supreme Court was to have no jurisdiction in matters
of revenue or its collection. No Indian was to be liable to the court's
jurisdiction by reason of being a landholder or a farmer of rents. The
court was again definitely given jurisdiction over all inhabitants of
Calcutta, but Hindu or Muhammadan laws were to be administered
in cases of inheritance, contract and successions.
3
1 Bond, Speeches in the Trial of Warren Hastings, I, 6.
2 Parliamentary History, XXI, 1170.
3 Idem, p. 1173.
4 Idem, p. 1174.
5 Idem, p. 1178.


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