COMMONS COMEBACK FOR JUDGE THEY COULDN’T DESTROY

[Copyright Paul M.S. Hopkins, 2008. This article may not be reprinted or distributed other than for individual and personal use, either electronically or on hard copy, without permission from the publisher]

A judge during the British Raj, Sir Elijah Impey, was wrongly accused of knowingly hanging an innocent man and his reputation was ruined. PAUL M.S. HOPKINS investigates a case of literary murder. The accused is the celebrated historian, Lord Macaulay

SIR ELIJAH IMPEY could cock a snook at people who had recently been beastly to him when, in 1790, he took his seat in the House of Commons as the new Member for New Romney. Only a year before, he had appeared before the House on six charges which included judicial murder – offences in a different league from the ones the House concerns itself with today, like fiddling expenses!

Born at Hammersmith (now part of London) in 1732, Impey was educated at Westminster and Trinity College, Cambridge. He was called to the bar in 1756. He became recorder of Basingstoke and then counsel to the East India Company, being appointed chief justice to the newly created Supreme Court in Calcutta in 1774. One of his first cases concerned an Indian official called Nuncomar, who was accused of forging a bond in an attempt to deprive a widow of more than half her inheritance.

At the same time, Nuncomar was accusing Warren Hastings, the Governor-General, of taking bribes. The hanging of Nuncomar naturally put an end to this case.

Nothing was made at the time of how the two cases coincided. But 13 years later, Hastings had been forced out of India and was being impeached on charges which included exterminating a tribe of Afghans and robbing local rulers. His accusers added Nuncomar’s charge of taking bribes and another of implication in his judicial murder.

Impey also faced impeachment, as the judge who had pronounced sentence –and as a friend of Hastings, since they were at school together.

The mover was Sir Philip Francis. When a member of the Council in Calcutta, Francis had been a bitter opponent of Hastings. It is well known that Hastings wounded him in a duel, less well known that Impey had fined Francis for seduction. No wonder Francis wanted revenge on the pair of them.

However, the barrister Impey defended himself successfully before the House of Commons and his impeachment was dropped. The soldier Hastings was less fortunate, being committed for trial before the House of Lords. The seven-year trial virtually bankrupted Hastings, even though at the end he was cleared of all charges.

Impey spent the same seven years as MP before retiring to near Brighton, where he died in 1809. He might have been forgotten, but for the popular historian Macaulay, who in 1841 wrote: “No other judge has so dishonoured the English ermine since Jeffreys drank himself to death in the Tower. To gratify the Governer-General, Impey put a man unjustly to death in order to serve a political purpose. The time came when Impey was stripped of that robe which has never been disgraced so foully as by him.”

It was powerful stuff but hardly fair. Macaulay didn’t mention that Impey had been found to have no case to answer, whereas Hastings had been sent for trial on 20 charges.

The main historian of the Nuncomar affair, Sir James Stephen, was an admirer of Macaulay, but even he called Macaulay’s attack on Impey “a mere effort of journalism, hastily put together from insufficient materials. To the whole English nation it has become the one popular account of the early stages of the Indian Empire – the accepted myth. Impey has owed his moral ruin to a literary murder of which Macaulay probably thought little when he committed it. So long as he is remembered at all, poor Impey will stand in a posthumous pillory as a corrupt judge and judicial murderer.”

A thought for all today’s rush-to-judgment writers whose stories get into cuttings files!

A legal footnote: As a lawyer in the Indian Civil Service, Macaulay revised the Indian Penal Code, finding some things which needed modernising but taking over wholesale from the previous Code, which had been written 60 years earlier by that “disgrace to judicial ermine”, Sir Elijah Impey.

WHAT MACAULAY MISSED
What should Macaulay have taken into consideration? Impey was one of four judges who presided jointly over the Nuncomar trial. Two of them, acting as examining magistrates, had first committed Nuncomar for trial. No complaint was ever made against the judges as a group except by Nuncomar himself. His petition was burnt as an unsupported libel by order of the Council of which Francis was a leading member.

The forgery charge arose out of civil proceedings which had been going on for two years before Impey arrived in India, so in no way was it dreamed up to get rid of Nuncomar when he accused Hastings of corruption. The council could have sought to get Nuncomar reprieved as a witness against Hastings, with whom they were in dispute, but did not do so

In 1788 Francis resurrected the charges he had rejected in 1775 “‘because of his pertinacious and undying animosity to Hastings and Impey”, as Stephen put it.