tives can be assigned for it? Besides, it appears from Mr. Farrer's evidence, that the charge of forgery appeared on the face of the proceedings in that court, The hon. member then takes up the exploded ground of an ex post facto law. It is now, I hope, well understood, that the English criminal law was carried to Calcutta by the 26th Geo. 2. that instructions were sent out with it for the prosecution of all manner of felons: that after the proclamation of the president and council in 1762, the jurisdiction was regularly exercised. We have before us a long list of persons convicted of felonies under the English laws, and one particuJarly, of Radachund Metre, for this very crime of forgery, in 1765. Much use is endeavoured to be made of the pardon granted in this case; and the hon. member quotes the expressions in the petition of the natives, sinking the reason given by the President and Council, viz." That this man's condemnation will alone be a sufficient example to deter others from the commission of the like offence, which is not held so heinous in their eyes." It had not this effect. We find Nundcomar committed this crime a few years after, and in 1785, sir William Jones mentions one in custody for forgery. The Directors when they sent out the pardon, only object to the indictment, using the word present' instead of publish. The hon. member on this occasion went, in my mind, into a great waste of deep learning and ingenious reasoning on the nature of charters, the right of the Crown to grant them, the danger to liberty from the influence which the Crown might gain from Bengal, the right of conquest, the manner of our obtaining our possessions in that country, the several grants of the Moguls, &c. the drift of all which was, to show that the King had no right to grant any charter, nor the Parliament to pass any act for the government of that country; and that we were mere Zemindars, tenants of the Great Mogul; but, if I were to grant all this, would it be possible to impeach a judge for doing his duty under the charter appointing him, itself founded on an act of the legislature? The hon. member afterwards quoted a passage from Blackstone's Commentaries to show, in the instance of the American colonies, that the British laws were not all necessarily carried there. Only those applicable to their situation-not the spiritual courts. To show that sir Elijah was [VOL. XXVII.] perfectly sensible of this distinction, I need only read part of the Hindoos' address, and the answer of sir Elijah Impey. [Sir Richard here read them.] A custom, on allowance from their religion, may certainly be pleaded in many cases, which may be crimes by our law, but surely no one can say, that custom can be pleaded for forgery-a malum in se not a mere malum prohibitum-subversive of the foundation of all society. The hon. baronet laid great stress on the supposed dissent of sir Robert Chambers. I must observe, that, if this was allowed, it by no means follows that he was right in law, and his three colleagues wrong; but I think it will appear, that he never dissented as to the Act of the 2d Geo. 2, being in force in Bengal, The hon. member endeavoured to start a contradiction between the account given by sir Elijah and that by Mr Farrer; but, if the evidence of the latter, who did not pretend to be accurate in expression, be examined, it will appear to say the same thing: "Mr. Justice Chambers immediately called for the indictment. It was handed up to him. After perusing it for some time, he expressed himself to the following effect, as well as I am able to recollect it: That he had great doubts whether or not the indictment was well laid, being for a capital felony on the 2nd Geo. 2. That he conceived that act of parliament was particularly adapted to the local policy of England, and to the state of society and manners there; where, for reasons as well political as commercial, it had been found necessary to guard against the falsification of paper currency and credit by laws the most highly penal. That he thought the same reasons did not apply to the then state of Bengal. That it would be sufficient, and as far as the Court ought to go, to consider Bengal, in its then state, as upon the same footing that England had been between the statute of the 5th Eliz. and that of the 2nd Geo. 2. And that under the clause in the charter, which empowers the Court to administer criminal justice in such and the like manner as justices of Oyer and Terminer, and gaol delivery, could or might do in that part of Great Britain called England, or as near thereto as the circumstances and condition of the person and places would admit of; the indictment might be well laid on 5th Eliz. He therefore proposed from the bench, that that indictment should be [2 G] quashed, and that the prosecutor might be at liberty to prefer a new one on the 5th Eliz. or otherwise, as he should be advised." It appears from hence, that sir Robert Chambers conceived that there was an option to apply the statute of Geo. 2, or that of 5th Eliz.: and that he preferred the latter, as supposing it more applicable to the actual state of the country, in point of commerce, &c. How the ground of this reason turned out in fact, appears from what Mr. Farrer says afterwards: "The chief justice immediately proceeded to give his opinion on sir Robert Chambers's proposal. If I am asked to state the substance of such opinion, I am afraid I shall not be able to do it so as to do justice to sir Elijah Impey, and the other two judges who concurred with him in opinion, or so as to give entire satisfaction to my own mind; but having said thus much, if the Committee wish to know the impression it made on my mind, I am ready to state it to the best of my power. That he thought the indictment was prima facie well laid on the 2nd Geo. 2. That he had always conceived India, particularly the town of Calcutta (which was as far as it was necessary to go on the present occasion), to be greatly commercial, and that in commercial matters, as well as in matters of revenue, and other money transactions of a public as well as a prívate nature, the most important, as he conceived, were carried on through the medium of paper currency and credit; and that as to the state of society and manners, that country could by no means be considered as in an uncivilized or uncultivated state; but that on the contrary, civilization had made a great progress there, as appeared from history at a very early period and that it might perhaps be rather deemed to be degenerating and redescending, for want of wholesome laws to enforce a due attention to just dealings, than to stand in need of maturing or bring ing to great perfection before such laws could be applied to them. That, in fact, the particular law in question had been before applied in Calcutta, as well as other criminal laws of England, before the establishment of that court; and if I do not very much mistake, he intimated a doubt whether the instrument charged to be forged came within the description of any of the provisions of the 5th Eliz. That he thought that, prima facie, the one statute was as much in force as the other and that therefore he was of opinion, the indictment was primâ facie, well laid, and that the trial ought to proceed, and in the course of its progress, evidence be taken how the facts stood, on which his opinion was founded. This is the impression 'I have on my mind of it; but I cannot speak with any great degree of certainty at this distance of time, having no note of it. So far as my recollection serves me, evidence was taken to these facts from all or most of the principal native inhabitants of Calcutta, who were examined during the course of the trial, and who were certainly persons as well qualified to speak to them as any in Calcutta, being all persons who had been much conversant both in public and private transactions of great magnitude; viz. Huzzerah Mul Baboo, Cossinaut Baboo, Raja Nobkissen, and Coja Petruse. So far as my memory serves me, their evidence uniformly went strongly in support of the facts on which sir Elijah grounded that part of his opinion, which was founded in fact; and, if I do not very much mistake indeed, the same facts were also corroborated by more than one of the jury; I think, two of them at least. Very old inhabitants of Calcutta, and men of great business and credit, were sworn for that purpose during the trial. By facts, I mean the state of commerce, paper currency, and credit in Calcutta, and I find at this moment a strong impression on my mind, of my feeling extraordinarily hurt at it, and of my communicating such my feelings to those with whom I was most confidential, the late Mr. Monson and sir John Clavering, as this was the principal point (independent of the merits of the case itself) on which I depended." This suggests a natural reason, for sir Robert's acquiescence afterwards. In fact, he sat out the whole trial, joined in over-ruling the motion in arrest of judgment, was present at the passing the sentence, signed the calendar, was the first to propose seizing Nundcomar's effects; and, what is still stronger, joined with the other judges in a letter to the Court of Directors, of August 2, 1775, after sentence, and before execution of Nundcomar, in these words, which relate directly to this case: "Our judgments have, in every instance, been unanimous, whatever representations may be made to the contrary." After this, can any one say, that sir Robert Chambers did not concur with his brethren in the judgment past on Nundcomar? The attempt to fix the drawing of the indictment on sir Elijah, from the evidence of Mr. Tolfree, is perfectly ridiculous, as it does not even go near to fix it on Mr. Le Maistre. The threat said by Mr. Farrer to be thrown out by Mr. Le Maistre, of the prisoner's being precluded from pleading over, in case of his plea to the indictment being over-ruled, a doctrine always denied by sir Elijah, cannot, from Mr. Farrer's evidence, be pretended to be brought home to any other of the judges. Mr. D. Pulteney said, he was in hopes that, as he was absolutely unacquainted with sir Elijah Impey, he should not wander so much from the subject as others appeared to him to have done, either through enmity or friendship. The question seemed to him sufficiently simple, and within the apprehension of an ordinary juryman. With respect to the legal points argued at such length by the mover of the charge, he considered most of them as a needless discussion on the present occasion; the true point to be considered by the House was, not whether English criminal laws were properly introduced into Calcutta, nor whether, when actually existing there, they ought to have been suppressed by the new judges; but whether these were points so clear and palpable that the judges in wandering from them, had discovered evident proofs of that malus animus which was alone criminal, and whether the House was prepared to prove this before the Lords? Were the judges seriously expected to know, without any other information, that they were taken by parliament from the English bar, and sent out to India to supersede the English laws? Yet, if they did not know this, they were by no means criminal. And after the Regulating Act of 1781, wherein all the defects of the Supreme Court were specifically pointed out and remedied, parliament having taken no notice whatever of a defect in the criminal law, as it respected the case of Nundcomar, and having confirmed the chief justice in his office; when the practice was so unequivocally sanctioned here, was one House now to call upon the other to disavow their opinions so fairly inferred, and make that disavowal the ground-work of a criminal prosecution? With respect to the allegations in the charge, as to matters of fact, he should consider how some of them, of great importance, were supparted or disproved by Mr. Farrer, in every point of view, the most material witness they could expect to produce before the other House. The charge recited, that sir Elijah was the author and instigator of the criminal prosecution against Nundcomar. Mr. Farrer, counsel for Nundcomar, informed the Committee that steps had been taken for this purpose, six months before sir Elijah's arrival in India. The Committee had even discovered from Mr. Farrer, whose evidence was so full and so impartial, that the warrant of commitment was signed by two other judges, and not by the chief justice; and yet, to fix the main guilt on him, and prove a criminal collusion with Mr. Hastings, it seemed necessary to prove him not only the first, but the sole abettor of the prosecution; in fact, if the House were to go up to the House of Lords, with the present evidence in their possession, almost the first account they could give of the chief justice's malignity towards Nundcomar, would be, that he sent him medical and religious assistants in his confinement. It was insinuated in the charge, that the chief jus. tice should have quitted his judicial character to take into his consideration the accusation preferred by the prisoner against Mr. Hastings. Thus, at the commencement of the charge, he was accused of having quitted his judicial character from a political connexion with Mr. Hastings; and in its progress he was accused of having given no place to political considerations on the bench. Fitzharris's case, however, he thought would always remain a proof, if any were necessary, that the good sense of mankind would constantly protect a judge in the most violent political heats, if he did his duty resolutely in court. What was the case of Fitzharris? He knew himself guilty, like Nundcomar; he looked out for protection against the laws like him, paid court to a ruling party, and preferred accusations against the duke of York, their avowed enemy. Fitzharris was thought so useful a political associate, that the House of Commons preferred an amicable impeachment against him, to preserve him from the courts below, which he pleaded in bar, but the judges overruled the plea, and he was, like Nundcomar, convicted and executed; and so averse were men's minds from countenancing judges in entering into political discussions on the bench, that the proceedings of the Court of King's-bench had ever since been very generally approved. With respect to the chief judge's conduct during the trial, he thought he had in many instances, particularly in the clearest evidence of that guilt necessary. summing up, been as favourable with the In the present case, the whole evidence prisoner as was consistent with his duty, was merely conjectural. The question and in some instances with more indul- arising from the words of the charge was, gence than the nature of his duty strictly Whether sir Elijah, in conspiracy with could support. The refusal to respite him Mr. Hastings, had, under the forms of had been much dwelt on; but, in answer law, murdered Nundcomar, in order to to this, it had been proved that seven suppress his testimony before the council? weeks had been granted the prisoner, This had been maintained by the hon. which was a sufficient time for the disco- baronet on the grounds of want of jurisvery of any falsehood in evidence, and diction in the Court, the conduct of the during that time, it had been asserted by Court during the trial, the observationssir Elijah, that he had offered a bribe to on the evidence, and the refusing an apone of the other judges, and that he was peal or respite. The first consideration, even apprehensive he would be rescued he contended, was entirely foreign to the by force; but, at all events, the power to present case; if it should appear that the respite was discretionary, and the Com- Court had, in common with all other permittee would not presume criminality, sons, conceived that they had complete much less could they prove it from any jurisdiction. But he desired to enter his evidence before them.-Nundcomar had, fullest dissent to the proposition, that neiafter the precedent of Radachund Metre, ther the Crown nor Parliament had power committed the forgery with his eyes open to transfer the law of England to Calcutta to the possible consequences of his crime, and its inhabitants. He conceived it to and he really thought him justly con- be clear, from the constant practice of this victed; and should the House, after the kingdom, verified by its history and recredit they had acquired by another im- cords, that when a new territory was empeachment, not perhaps so much to punish braced by the kingdom of Great Britain, Mr. Hastings as to reprobate those princi- that his Majesty might communicate so ples of conduct which he had avowed in much of the laws of England as could be his defence, without any such defence to applied to its state and condition. In anreprobate, and without a tittle of proof, swer to the hon. baronet's demand of sacrifice their own dignity to such an in- many decided cases, he must borrow lord effectual charge as the present? Could Mansfield's argument in the case of Grethey themselves, on such evidence as they nada, which had been argued from, that had before them, seriously believe that such had been the eternal practice, and four judges, not Pizarros educated in ra- no authority could be found to the conpine, as the worthy baronet had quoted, trary. He then went into all the argubut in a liberal profession at the Englishments to show, that where a subordinate bar, could, all at once, have plunged into the commission of a crime so peculiarly infamous, that he not only did not believe its existence in the present case, but that it ever had existed in any civilized age or country? He had not the slightest hesitation in saying, that his mind was fully made up on the subject, and that he should meet the motion with a negative. The Solicitor General stated, that sir Elijah Impey left this country in possession of a character exceeded by none amongst his own fraternity. If the maxim noscitur è sociis had any truth in it, he was at that time a deserving man, as he enjoyed the friendship and esteem of the most distinguished men then and now in Westminster-hall. A preceding high character was no answer to positive evidence of guilt; but it certainly had the effect of rendering those who were in any stage to judge of that guilt cautious, and made the legislature is given by the King's prerogative, his Majesty cannot add to, diminish, or alter, that portion which had been given of the English law; but that if it was given by letters patent, when those letters patent are surrendered, and new ones given, the case is as if no former letters patent had been given; and the letter conveyed the subsisting applicable law. Be this however as it might, the universal opinion was that of sir Elijah Impey. This he could prove from the conduct of parliament, which, for ten or twelve years past, had known that English criminal law had taken place in Calcutta, and till that hour had never questioned it-that this very subject of regulating the extent of the Court's jurisdiction, was considered by Parliament, and and an act passed in 1781, but no objection ever was conceived-that the Directors many years ago had sent out in structions respecting the trials for burglaries, all the variety of larcenies, horsestealing, &c.-that in the case of Radachund Metre, neither lord Northington, then chancellor, nor the officers of the crown, had conceived this idea; but a pardon was granted, on the grounds of an imperfection in the indictment, and great doubt on the evidence. In the present case, he observed, that he would answer the question put to the honour of individual members, and declare, that had he been upon the jury, he should have pronounced Nundcomar guilty. He entered into a discussion of the evidence on both sides, and showed, that, on the part of the prosecution, two decisive circumstances appeared, independent of the parole evidence; first, that the seal of Comaul Odein, put to the forged bond, was proved to have the same flaw in the stone with another impression of a date long preceding, and could only be his seal, and not the Comaul Odein set up by Nundcomar: next, a rajah who was examined, deposed, that he knew the writing of Sealabut, another pretended witness to the bond, and denied it to be his handwriting. His veracity was fully proved by several different papers being shown to him, and he picked out the only three which were admitted to be the real Sealabut's hand-writing. One person, how ever, declared he would answer no question on cross-examination, unless he was permitted to begin at the commencement of his story; another refused to answer at all, although Mr. Elliot swore that he clearly understood the question; and as to Kissen Juan Doss, he entirely agreed with sir Elijah, that his prevarication and contradictions were so gross, when called back by the prisoner, that no credit could be given to him. The point was material, whether the prosecutor had seen a settled account. If he had, it was decisive in the prisoner's favour; but his account of this evidently showed it was false. The Solicitor-general adverted to sir Elijah's appeal to the jury, and hundreds of bystanders, on the witness's distress when detected, and urged that no judge could dare to make an appeal to the eye-sight of a crowded audience when he knew that it was false. He observed that this prosecution was proved by Mr. Farrer, to have been determined upon by Mr. Driver, before the judges arrived in India, and that the reasons why Nundcomar did not sue upon the forged bond in the Adaulet court were, that his witnesses contradicted themselves, and Nundcomar would not swear to the truth of the debt. He read a long list of convictions apon English statutes before the arrival of the judges, and instructions from the Court of Directors how to proceed against native prisoners. He next contended, that sir Robert Chambers must be considered as having fully concurred with the Court in the end, and observed, that his objection must have been hasty and without consideration, because the statute of Elizabeth respected the forging of title deeds to lands, and inflicted the penalty of imprisonment for life, loss of all property, and loss of ears, slitting the nostrils, and searing them with hot iron. He maintained that his signing the calendar was a death warrant, and although it was physically possible that one of four judges (whose concurrence was not necessary) might think it necessary to sign, yet it was all but impossible, that a dissenting judge should join in that painful office. His only doubt originally was, whether capital punishment for forgery was necessary in that town of Calcutta, in and for which courts of Oyer and Terminer and Gaol Delivery had been established in all criminal cases by act of parliament; but, Mr. Farrer, in his evidence, declared, that the cloud of witnesses to that fact had been such as to beat him out of his own opinion; and sir Robert Chambers had declared, in a letter to lord Rochford, that the Court had concurred in all their judgments. He desired farther to advert to the genuine sentiments of the council general, when the conviction was first known to them, and protested against an honourable member of that council, now in the House, conceiving that he meant to turn the eyes of the House from the question upon him. If men's minds, he said, were ever to be known, it was in an accidental private conversation. This Mr. Farrer proved had taken place, when he proposed at colonel Monson's to Mr. Francis, that the council should petition the court in favour of Nundcomar. Mr. Francis did not then apprehend that his life, or that of any one else, would be endangered by such a stcp, but readily assented. General Clavering, so far from imagining that the court had misconducted the trial, coldly said, it was a private matter, and he would have nothing to do with a man convicted of forgery; and col. Monson agreed with him. When the petition of Nundcomar, presented to general |