Page:Dictionary of National Biography volume 28.djvu/426

Rh judges who was a professed jurist, expressed doubts as to the applicability of the statute (2 Geo. II. c. 25) under which the prisoner was indicted. But after evidence had been heard it was ruled by the majority of the bench that there was no reason why this statute should not apply. A conviction had in 1765 been obtained under it in a Calcutta court, and sentence of death passed on a high-caste Hindu. There is no reason to regard the court's decision as bad; but the letters patent constituting the new court had not made it plain what law the court was called on to administer. A difference of opinion on the point was therefore inevitable.

As the trial proceeded the crown lawyers proved incompetent, and much of the examination and cross-examination was undertaken by the judges, as still happens sometimes in Indian trials. But the circumstance gave rise to much subsequent comment hostile to the judges. The proceedings occupied seven days. Evidence was produced that two of the attestations to the bond were forgeries, and also that the sum acknowledged was not due from the alleged obligee. For the defence, on the other hand, evidence was recorded that the bond had been truly executed and truly attested, and subsequently acknowledged in writing. In their cross-examination the witnesses for the defence showed signs of having been tutored. They contradicted one another on points put to them by the court. The most important of them broke down on a question put by the prisoner himself. On the 16th the chief justice fairly and exhaustively summed up the evidence. 'It would have been impossible to put more strongly' the points that were favourable to the prisoner (, The Story of Nuncomar, i. 164 n.) Want of local experience, however, led Impey to remark that `the nature of the defence (which undoubtedly turned the scale against the prisoner) was such that, if it were not believed, it must prove fatal; `whereas in India, then, as now, a good defence is often supported in the law courts by much false evidence. But, in the opinion of Sir James Fitzjames Stephen, `no man ever had, or could have, a fairer trial than Nuncomar, and Impey in particular behaved with absolute fairness, and as much indulgence as was compatible with his duty.' The jury found a verdict of guilty.

A motion made by Farrer in arrest of judgment on 22 or 23 June failed, and Impey passed sentence of death, no other sentence being lawful under the statute on which the prisoner had been tried. The court ordered at the same time that several witnesses for the defence should be prosecuted for perjury, and declined to exercise the power given in its charter of suspending the execution until the king's pleasure could be taken. A petition presented to the court on 24 June on the convict's behalf for leave to appeal was refused, apparently in Impey's absence from the court. In July the grand jury expressed in an address to Impey their satisfaction at his conduct of the trial, and some merchants, Armenians, and natives of Calcutta, presented similar addresses to all the judges, in which Impey was extravagantly eulogised. A letter drawn up by Farrer for presentation to the judges by the council, and intended to accompany a petition from the prisoner for a reprieve, was privately examined on 1 Aug. by the majority of the council, the enemies of Hastings and Impey, and they recommended Farrer not to proceed further in the matter. On 5 Aug. 1775 Nand Kumar was publicly hanged.

It was afterwards asserted by English statesmen, prompted by Sir Philip Francis [q.v.], that Impey acted throughout as a tool of the governor, that the prosecution had been instigated by Hastings with the view of stifling the accusations which the prisoner was bringing against him, and that the chief justice had on that ground refrained from exercising his privilege of mercy. No collusion between Hastings and Impey was, however, proved. The governor-general had little to gain by the death of the prisoner (whose accusations had already been recorded, together with the proofs on which they rested) compared with what the opposition members of the council had to gain by allowing the law to take its course. Their action in advising Farrer not to formally present Nand Kumar's petition for a reprieve was unmistakable. Moreover, Francis deliberately ignored a letter which the prisoner addressed to himself on 31 July asking him to interpose with the judges; and a petition from Nand Kumar to Sir John Clavering [q.v.], dated the day before his execution, in which the prisoner suggested that he was being judicially murdered by Hastings's agency, was not brought by Clavering to the council's notice till 14 Aug., when it was unanimously condemned as a libel on Impey and his colleagues, and was ordered, on the motion of Francis, to `be burned by the common hangman.'

Impey was anxious to extend and define the jurisdiction of his court and to bring under its control as an appeal court the fiscal administration, which was largely in the hands of corrupt natives or inexperienced English officials. Hastings was in complete agreement with Impey on the subject, and writing to the directors of the company (21 March 