version of the affair, was not aware of the evidence that was in existence to confront and confute him. This is one of the most curious passages in the history of these transactions. It is quite true that certain empty attentions continued to be paid to Nuncomar, while he lay in prison on the charge of forgery, by the three members of Council, who had taken him by the hand on his recent appearance as the accuser of the Governor-General. They allowed their secretaries and aides-de-camp to visit him, and even their ladies were in the habit of sending him their compliments. But whatever hopes he and his friends may have conceived from this show of concern and interest in his fate on the part of the men constituting, at the moment, the dominant party in the Government, were utterly disappointed.

Not one of them even

made an effort or a move to save him. Nay, more than this; General Clavering, who, we are asked to believe, had sworn to rescue him at the foot of the gallows, would almost seem, for whatever reason, to have been as anxious to have him put out of the way as Hastings himself was charged with being. Nuncomar was hanged on the 5th of August. On the 14th, and not till then, Clavering laid before the Council a paper entitled, "A Representation from Maharajah Nuncomar to the General and Gentlemen of Council," which, he stated, had been brought to him by a person calling himself the servant of Nuncomar, on the 4th, the day before the execution of the Rajah. "As I imagined,” said the General in presenting it, that the paper might contain some request that I should take some steps to intercede for him, and being resolved not to make any application whatever in his favour, I left the paper on my table until the 6th, which was the day after his execution, when I ordered it to be translated by my interpreter. As it appears to me that this paper contains several circumstances which it may be proper for the Court of Directors, and his Majesty's Ministers, to be acquainted with, I have brought it with me here, and desire that the Board will instruct me what I have to do with it." What, then, did

the Council order to be done with the paper? It petitioned that the Council would interfere to suspend the execution till the King's pleasure should be known; and it accused "Lord Impey and the other Justices” of having conducted the trial in a manner contrary to law and justice. When it had been read, Hastings moved that, as it contained expressions reflecting upon the characters of the Chief-Justice and Judges, a copy of it should be sent to them. What are we to think of Mr Macaulay's representations, when we find that this was immediately objected to by Francis, on the ground that it would be giving the thing more weight than it deserved ? Yet nothing is more certain. "I consider," said he, "the insinuations contained in it against them as wholly unsupported, and of a libellous nature; and, if I am not irregular in this place, I would move that orders should be given to the Sheriff to cause the original to be burned publicly by the hands of the common hangman. To this proposal, both Clavering and Monson at once assented; and the three carried their point against the other two members of the Board. The original paper was actually burned accordingly; and Francis having, by the aid of his two friends, also carried a second motion, that the entry of the transaction should be expunged from the records of the Board-" to prevent," as Francis put it, "any possibility of the imputations indirectly thrown on the Judges from extending beyond the Board"-naturally conceived that Nuncomar's petition could never rise in judgment against him. But Hastings had taken care before its destruction to secure an authentic copy of it; this he had given to Impey; and by Impey it was laid before the House of Commons, when he made his defence at the bar of the House on the Nuncomar charge for he did make a defence, and a successful one, although Mr Macaulay omits all mention of the facton the 4th of February 1788. Francis must have been confounded. did not attempt to deny the authenticity of the paper. He took above three weeks for deliberation; and then he came forward with a long, laboured,

But he

quibbling, and querulous reply, in which he said that he did not hesitate to declare, in the most explict manner, that the private motive which induced him to propose the destruction of Nuncomar's petition was not the one which he had publicly assigned at the time! What else he may have said for himself can after this have no interest for any body.

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But Impey, Mr Macaulay thinks, ought to have respited Nuncomar of his own accord; and by not doing so, we are gravely told that, in the deliberate opinion of the Right Honourable essayist, the Chief-Justice "put a man unjustly to death in order to serve a political purpose." In plainer words, Sir Elijah Impey was guilty of murder. It is quite evident that when he expressed himself in this reckless manner, Mr Macaulay had not read a line of Sir Elijah's defence, nor probably, indeed, knew that he had ever made any defence. The notion that the Court either ought to have respited Nuncomar, or could with any propriety have done so, on the ground of the circumstances on which Mr Macaulay rests, is disposed of by Sir Elijah in the most satisfactory and conclusive manner. "The circumstances," he observes, were not only not in evidence, but were in truth not known to me nor the other judges. By rumour, and by rumour only, it was known that Nuncomar had preferred some accusations against Mr Hastings for corruption in his office: the accusations were preferred to the Council in their private department, where each member was under an oath of secrecy. If the prisoner was an object of the special protection of the Court from the circumstances in which he stood as an accuser, that claim should have been laid before the Court in evidence, and formed part of the defence." Why, he went on to ask, were not the whole facts connected with the charges brought by Nuncomar against the Governor-General laid before the Court and Jury, if they were thought to be so important as they had since been represented to be to the elucidation of the case, and to convince the Court that it ought to give the prisoner its protection? They were not thought sufficient to produce

66

a

that conviction," continued Sir Elijah, "when the transactions were recent; why, then, is it averred they must produce such conviction at the distance of thirteen years?" By the express words of the letters patent establishing the Supreme Court at Calcutta, the power of the Court to reprieve a prisoner capitally condemned, or to suspend the execution of his sentence, was limited to cases where there should appear proper occasion for mercy ;" and in all such cases a statement of the reasons on which the criminal was recommended to mercy was demanded of the Court. But, putting aside this special regulation, the course which Mr Macaulay would have had the Court to take in the case of Nuncomar,—respiting him, or reserving his case for farther consideration, in consequence of some mere rumour of the streets, never so much as once adverted to by the prisoner himself or his counsel, or in any way or shape brought forward in evidence-is a course that no court of justice has ever taken. And yet, for not having taken that course, Mr Macaulay, rushing into print with his one-sided knowledge of the subject, and as if he thought the weaker his facts the stronger ought to be his epithets, does not perceive that he outrages either common justice or common sense in denouncing Sir Elijah Impey as guilty of murder !

But why, finally, is Sir Elijah Impey to be represented as the sole party concerned in this so-called murder? The Chief-Justice was only one of four judges of whom the Court was composed, and before whom the trial took place. If the other three had differed from him on any point, he would have been powerless. But not one of them differed from him. The Court was unanimous in the sentence passed upon the prisoner, and also in declining to respite him; and, therefore, there were four murderers, if Mr Macaulay's notion is to be adopted. Mr Justice Chambers, Mr Justice Hyde, and Mr Justice Lemaistre were all likewise guilty of murder if Sir Elijah Impey was.

This charge relating to Nuncomar was the main charge brought against Impey. The examination of it occupies above 100 pages of his son's volume.

We have, of course, been obliged to confine ourselves to the leading points. But we have said enough to prove how little Mr Macaulay's dashing asseverations and precipitate conclusions will bear close inspection. We assure the reader that, if we had time and space to track the Right Honourable essayist in the same manner through the remainder of his account of Sir Elijah Impey, we should be able to produce an equally convincing demonstration of the blundering and unfairness that characterize it in every sentence, we might almost say in every line. But after the specimen we have given, we may be allowed to dispense with any more proofs and reasonings; and we will, therefore, content ourselves with merely noting the principal misstatements in the other passages, and meeting them severally with such denial or correction as may be required.

The attempt, then, imputed to the judges of the Supreme Court of seeking unduly to extend their authority, was an attempt in which, in the first place, they were unanimous; in which, secondly, they were originally supported by Hastings himself; in which, thirdly, Sir Elijah Impey and the other judges, and their successors, never ceased to persist; in which, fourthly, they were eventually proved to be perfectly justified in law by the decision of the Privy Council; in which, fifthly, they carried with them at the time the sympathies and gratitude of the body of the population throughout British India; and in which, sixthly, all the highest authorities have long been agreed that they took a course eminently serviceable to the cause of justice and good government, and conducive to the general welfare of that country. The reign of terror, which is asserted to have followed this attempt, is the wildest of dreams; among the mass of the population, the poorer native Hindoos, the industrious classes of India, it was rather a reign of hope and joy; it was the promise of protection to labour-of security to life and property-of freedom from extortion and grinding oppression. But even taken as a picture of the sufferings of the wealthier classes, Hindoo and Mahom

medan, who were now for the first time prevented by the Supreme Court from plundering and trampling upon their inferiors, Mr Macaulay's description is ludicrous for its absurdity. In one instance only does it appear that the precincts of a harem were invaded. "Of those numbers of natives, highly considered among their countrymen," says Mr Impey, "who were seized and flung into the common jail of Calcutta without any crime, and without any debt, I can find no where any trace; none in my father's correspondence, private or public-none in Hastings's copious letters-none in any official or other report." Be it remembered that the innovation which, according to Mr Macaulay, made all the injustice of former oppressors, Asiatic and European, appear as a blessing when compared with the justice of the Supreme Court, was after all nothing else than the introduction of the practice of arrest upon mesne process, which continued to be legal and in constant use in England till within the last six or eight years.

Next, with regard to Impey's appointment as judge of the Supreme Court of Revenue, or Sudder Dewannee Adawlut. That this appointment was given by Hastings to Impey as a bribe, is an assertion, just as little supported by evidence or probability, as would be the assertion which any one might as easily make, that the appointment received by Mr Macaulay himself a few years ago as member of Council in India was given him as a bribe. The two cases will bear to be compared in all respects without disadvantage to Sir Elijah Impey. Without questioning Mr Macaulay's fitness for the duties of his well-paid office, we may venture to affirm that Sir Elijah was at least as well qualified for those which he was called upon to discharge. Nobody,we believe, has ever heard of any sort of work or service whatever done by Mr Macaulay during the five years that he held his appointment and drew his salary; Sir Elijah Impey, in the six months of his presidency of the new court, went through a great deal of hard labour, by the results of which the public service largely profited. Mr Macaulay had his ten thousand a-year for doing nothing; it was Sir Elijah Im

G

pey's distinction that for doing a great deal he received nothing. For what will the reader think when he is informed that, notwithstanding Mr Macaulay's positive affirmations about Sir Elijah having by his appointment become entitled to a salary of eight thousand ayear, and having become " rich, quiet, and infamous," he most certainly was appointed without any salary whatever, and never received a farthing for his services either in salary, in fees, or in any other way!

No doubt it never was intended but that a salary should be attached to the office; but it was accepted, we repeat, by Sir Elijah without that matter being even mentioned. "This new office," he says, in a private letter printed by his son, "must be attended with much additional labour; yet, in the hope that I may be able to convert these courts, which, from ignorance and corruption, have hitherto been a curse, into a blessing, I have resolved to accept it. No pecuniary satisfaction has been offered or even mentioned to me, but I do not imagine it is intended that my trouble is to go unrecompensed." It was not understood that in consequence of this new arrangement Impey would desist -nor did he desist-from urging any pretensions of the Supreme Court which he had ever before urged. The new arrangement of itself removed the causes of the contest which had arisen between the Court and the Government. Finally, when the opinion of counsel in England was taken upon Impey's appointment, Dunning and Wallace (the Attorney-General) both agreed in holding that neither his appointment nor his acceptance of a salary was contrary to Act of Parliament, or incompatible with his duty as Chief Justice; Mr (afterwards Sir James) Mansfield, who had at first concurred, subsequently expressed a doubt as to whether the acceptance of a salary, or other payments, might not be illegal; and Mr Rous, the East India Company's standing counsel, also objected to the appointment with a salary, but on grounds of expediency, not of law. In point of fact, however, as we have said, Sir Elijah performed the duties of the office without emolument of any kind. So much

for Mr Macaulay's "rich, quiet, and infamous."

There remains only the ridiculous rhapsody about Sir Elijah Impey finding something inexpressibly alluring in the peculiar rankness of the infamy which was to be got at Lucknow, in November 1781, when the affidavits were to be sworn there against the Begums. As Mr Macaulay tells the story, although he does not say so in express words, he would make it appear that the object of Hastings in having these affidavits made was to vindicate the severities to which the Princesses had been subjected. In reality, the visit of Impey to Lucknow took place some months before the extremities resorted to against the Begums by the Nabob of Oude. He did not hurry thither. "He was travelling up the country," his son tells us, "with the intention of going,

at least, as far as Benares, when he received Hastings's request that he would take the depositions. Sir Elijah was accompanied by his lady and the usual train of slow-moving Indian servants. He took with him his confidential moonshee, or interpreter, Gunsian Dass; although, as far as he himself was concerned, he stood in no need of any interpreter. There was no racing in palankins-there was no hurry of any kind." The journey, in fact, had been projected by Sir Elijah long before the insurrection at Benares had broken out; it was undertaken partly for recreation and health-partly in order to inspect the different local courts that were subject to the Sudder Dewannee Adawlut. The party arrived at Benares, where Hastings was, on the 25th or 26th of October, more than two months after the insurrection had been suppressed. It had been doubted whether Impey would extend his tour so far; but, being there, he readily agreed to go on into Oude to take the affidavits with which Hastings was to corroborate the narrative he had drawn up of the recent transactions in Benares and in that province, to be laid before the Council at Calcutta, the Court of Directors, and the Government at home. It was a duty which any magistrate might have performed. That he should either try any person at

Lucknow, or even that he should investigate the facts sworn to in the affidavits, or deliver any opinion respecting them, was never dreamed of. "After the business of the affidavits was finished," to quote again the narrative of Mr E. B: Impey, "the Chief-Justice returned to Calcutta with his wife and attendants, travelling leisurely, though not quite so slowly as he had done from that capital to Lucknow. He was thanked by the members of the Supreme Council, and by nearly every Englishman in Calcutta, for the trouble he had incurred." It was not till some months after this that the proceedings against the Begums took place, which alone can be what Mr Macaulay alludes to as the crimes of those by whom Impey had been recently hired, in order to sanction which he is asserted to have undertaken his long journey. The said crimes could not by any possibility have been even contemplated till long after that journey was finished. They were provoked by a circumstance, viz., the resistance of the Begums to the demands made upon them for money, which had not then taken place. ingenuity will enable Mr Macaulay to escape from the charge of ignorance or inconsideration to which he has here exposed himself. He evidently wrote the paragraph upon which we have been commenting under the false impression that the affidavits were taken by Impey at Lucknow, after the strong measures employed against the Begums, and that their object was to justify those measures.

No

It is true, as Mr Macaulay states, that Sir Elijah Impey was recalled by the King in compliance with an address carried in the House of Commons on the 3d of May 1782. His impeachment, on six charges, was afterwards moved by Sir Gilbert Elliot, on the 12th of December 1787. But Mr Macaulay ought not to have omitted to state that, on the 4th and 5th of Feb. 1788, Sir Elijah delivered at the bar of the House his defence against the first and by far the most serious charge, that founded on the trial and execution of Nuncomar-that, on the 9th of May, the House found that the charge had not been made good by a majority of

The

73 to 55-and that thereupon the impeachment was abandoned. Some months afterwards it was intimated to him from the Government that, if he chose, he might return to Calcutta as Chief-Justice (which office he had only resigned a few weeks previous to his impeachment), and might, also, have a seat in the Supreme Council. reader is now in a condition to appreciate the truth and decency (whatever he may think of the eloquence) of Mr Macaulay's assertions, that he was "stripped of that robe which has never, since the Revolution, been disgraced so foully as by him," and that no other such judge as Sir Elijah Impey has dishonoured the English ermine "since Jefferies drank himself to death in the Tower."

We have taken up this subject in no spirit of hostility to Mr Macaulay. Our object has been to rectify his mistakes and misrepresentations. But the facts we have stated with regard to the case of Sir Elijah Impey do most assuredly demand Mr Macaulay's immediate attention, if he would retain the public confidence, either as a writer of history, or even, we would say, as an honest man. We are not disposed to press too hard upon him, on the score of what we must consider the insufficient investigation, or no investigation at all, with which he allowed himself to advance his charges in the first instance. It is the most natural thing in the world for a party man to chime in with the party cry; and Mr Macaulay, at least in his character of a review-writer or essayist, is, as we have hinted, almost professedly rather an arranger and decorator of the views of other people than an investigator of facts for himself. But even to the mere rhetorician it is not permitted to persist in assertions as to matters of fact which have been completely proved to be false. In justice to himself, as well as to the man whose character he has so unwarrantably aspersed, we think that Mr Macaulay is called upon at once to correct, at least the more gross misstatements by which his account of Sir Elijah Impey is disfigured. In reprinting his review, under the more dignified title of an Historical Essay, he has thought proper, as he informs us, slightly to alter one passage, on the au