Dictionary of National Biography, 1885-1900/Impey, Elijah

IMPEY, Sir ELIJAH (1732–1809), chief justice of Bengal, youngest son of Elijah Impey, by his second wife, Martha, daughter of James Fraser, LL.D., was born at his father's house, Butterwick House, Hammersmith, 13 June 1732. His father, a merchant, some of whose trade was with the East Indies, possessed property at Fulham, about Uxbridge, and in the parish of Marylebone, and on his death in 1750 left considerable wealth to his three sons. Michael, the eldest, carried on the father's business, and lived at Hammersmith till his death in 1794. The second son, James (1723-1756), king's scholar at Westminster, was elected to Christ Church, Oxford, in 1741, graduated B.A. in 1745 and M.A. in 1748, practised medicine at Richmond, published a treatise on comparative anatomy, travelled abroad, and died at Naples 19 Dec. 1756. Elijah was sent to join his brother James at Westminster School in 1739, and was elected a king's scholar in 1747. He distinguished himself among his fellows, who included Warren Hastings [q. v.], Churchill, Colman, and Cumberland. On 28 Dec. 1751 he entered as a pensioner at Trinity College, Cambridge; was elected a scholar in 1752; was second in the classical tripos, second senior optime, and junior chancellor's medallist in 1756 when he graduated B.A.; became fellow of his college in 1757, and proceeded M.A. in 1759. He was called to the bar at Lincoln's Inn 23 Nov. 1756, and went the western circuit. In April 1766 he was appointed recorder of Basingstoke. In 1776-7 he travelled on the continent with a Mr. Popham and with John Dunning, afterwards first Lord Ashburton, both of whom remained his friends through life. On 18 Jan. 1768 he married. In 1772 he was counsel for the East India Company before the House of Commons, when the court of directors were heard at the bar in support of objections to a bill affecting their interests in Bengal. In the following year the regulating act for the government of India was passed (13 Geo. III, c. 63), and a supreme court of justice was established at Calcutta. Of this court Impey was appointed the first chief justice, on the recommendation, as he believed, of Thurlow, the attorney-general. He was knighted, and leaving for India by the Anson in April 1774, landed in Calcutta on 19 Oct.

According to the ill-defined and badly drafted letters patent which Impey helped to frame, the newly established court at Calcutta was to have jurisdiction over all trespasses by persons in the company's service; to try civil causes of the value of over five hundred rupees; to act as a court of equity, probate, and admiralty; to be a court of oyer and terminer and gaol delivery; and to hear, determine, and award judgment and execution in all treasons, murders, felonies, and forgeries, committed by British subjects in the provinces of Bengal, Bihar, and Orissa, or by any others directly or indirectly employed or in the service of the company. The court might also reprieve or suspend execution of its sentence until the king's pleasure should be known in all cases where there should appear a proper occasion for mercy.

A pro-formâ term having been opened in October 1774, the court assembled for its first actual business after the brief Christmas recess. At the time the long-pending quarrels of Warren Hastings, the governor-general, with both his council and Nand Kumar, or Nuncomar, were reaching their bitterest stages [see under Hastings, Warren]. And with Nand Kumar Impey was at once brought judicially into very close relations. As early as December 1772 one Gungabissen had, as executor for a native banker who had died in 1769, sued Nand Kumar for sums alleged to be due to the dead man's estate. Nand Kumar not only denied his indebtedness, but put forward counter claims on account of a bond which he stated had been given him by the dead man. He refused, however, to produce the bond, and declined in 1774 to follow the suggestion of the court to submit the dispute to arbitration. An application made to the old court on 25 March 1774 to compel Nand Kumar to deliver the disputed document to Gungabissen or his agent, Mohun Prasád, was refused. On 25 Jan. 1775 Thomas Farrer, a barrister, repeated this application in behalf of Mohun Prasád in Impey's court. In the following March—before judgment was delivered—Nand Kumar preferred charges of corruption against Hastings, and in April Hastings retaliated by bringing charges of conspiracy against Nand Kumar and some of his associates, upon which they were soon acquitted. Before the end of the same month (April) Impey, however, made the order prayed for by Gungabissen and his agent for the delivery to them by Nand Kumar of the disputed bond. Immediately afterwards (6 May) a charge of forging the bond was preferred against Nand Kumar, and two of the judges of the higher court sitting at Calcutta, as justices of the peace, after a protracted inquiry committed him for trial. Bail was refused, and when that question was brought before Impey in the supreme court he confirmed the decision of the lower court. Early next month the grand jury found a true bill against Nand Kumar, and the case came before Impey and the other three judges of the supreme court on 8 June 1775. Mr. Durham appeared for the crown, while the prisoner was defended by two advocates, the leader being Farrer, who had acted on the side of Gungabissen in the preliminary proceedings. The trial began with pleas to the jurisdiction, and with an argument on the indictment, which had been drawn—it was afterwards said—by Mr. Justice Lemaistre, one of the committing magistrates. Sir Robert Chambers [q.v.], the only one of the 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 (Stephen, 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 1776), mentioned that he was indebted to Impey for a draft act enlarging the powers of the supreme court, which he desired might be submitted to his majesty's ministers.

The project came to nothing for the moment. In July 1777 Sir John Clavering [q. v.] and Hastings brought before Impey's court their quarrel as to the validity of the resignation of the governor-generalship which Hastings's agent had, under a misconception, presented in London. Impey decided that Hastings had not resigned. In 1779 Hastings and Francis agreed to a temporary cessation of hostilities, and, in accordance with Francis's conditions, Impey's judicial power was seriously diminished. The government issued a proclamation informing the public that Impey's court had no jurisdiction over native landholders. Military force was employed, moreover, to resist precepts delivered for execution to the court's officers. Impey was prostrated by the humiliation, and the estrangement between him and Francis was intensified when the latter came before him as defendant in a case of criminal conversation, and was sentenced to pay damages amounting to fifty thousand rupees (6 March 1779). At the end of 1780, however, Francis went home, and the scheme of 1776 for the extension of the powers of the supreme court was revived, although no authorisation of the new arrangement had been received from home. The local courts were put under European control, and Impey was made president of the central court, with appellate and administrative authority over them all. He worked well and assiduously at his new duties, putting down abuses and drawing up a code of regulations which has influenced all later laws of civil procedure. His son states that he never enjoyed the extra salary attached to the new post. It is on record that he took the duty without making any preceding stipulation, and offered to serve gratuitously if the appointment should be disapproved of in London.

While on a tour of official inspection among the country courts in 1782, Impey, at Hastings's request, pushed on to Lucknow, where he lent the authority of his attestation to certain affidavits which the governor-general desired to put on record in order to provide evidence that the dowagers had lent themselves to the seditious proceedings of Chait Sinh, the mutinous raja of Benares (see under Hastings, Warren). Impey was well skilled in Persian and Hindustani, and his legal experience gave additional value to the declarations. But as the place was entirely beyond his jurisdiction, the chief justice could give no official character to the proceeding, and his action offered new grounds of attack on the part of the enemies of Hastings and himself.

Meanwhile Francis at home represented that Impey's conduct in enlarging the jurisdiction of his court contravened the letters patent—a vexatious charge, seeing that Chambers, who acted throughout with Impey, was not molested, and that the counsel whose opinion was taken on the question answered that Impey had committed no illegality. But Francis prevailed, and Impey was recalled to explain his conduct on 3 Dec. 1783. He embarked for England with his family on board the Worcester, East Indiaman. After a narrow escape from shipwreck, and a consequent change of vessels, the travellers landed in June 1784, and Impey settled for the time in Grosvenor Street, London.

A few days before Christmas 1787, when the proceedings against Warren Hastings had already begun, Sir Gilbert Elliot [q.v.], afterwards first earl of Minto, with the connivance of Burke, presented to the House of Commons six charges against Impey, which he strove to support in a long and laboured address. The chief gravamina were the matters connected with the trial and execution of Nand Kumar, and the exercise of extended judicial powers under the government of Bengal. On 4 Feb. 1788 a committee of the whole house discussed whether the accusations justified the impeachment of Impey. Impey appeared at the bar, and delivered, without notes, a speech in his own defence. He supported his arguments by a great number of clearly marshalled documents; and the printed report formed 179 octavo pages. On 9 May the house divided, and Elliot's motion was lost by 73 against 55 as regarded the first and most important count. Thereupon the impeachment was dropped.

In 1789 Impey resigned his office. In the following year he entered the House of Commons as M.P. for New Romney. He retained his seat till the dissolution in 1796, but took little or no part in the debates; he practically retired from public life after 1792. In that year he removed from a country house in Essex to Amesbury, Wiltshire, and became tenant to the Duke of Queensberry in a house once the resort of John Gay. Here he enjoyed the company of many old friends, including Mansfield, his former travelling-companion Popham, and his schoolfellow Sir R. Sutton. In 1794 Impey settled at Newick Park, Sussex, where he engaged in farming, and occupied himself in educating his sons. Visiting Paris at the peace of Amiens, he was received in the best society of the time; but was detained, by order of the first consul, after the rupture of the peace; he at length obtained a passport, and returned to Newick in July 1804. He died at Newick 1 Oct. 1809, and was buried in the family vault at Hammersmith.

Impey's foible was vanity; and a certain weakness of character led him to yield at times too readily to the commanding will and intellect of Hastings; but there is no sufficient reason to doubt the honesty of his intentions. He added little to his patrimony by his nine years of Indian service. Like Hastings, he surmounted by the help of a remarkably amiable temper many keen sorrows, and in spite of ill-health enjoyed life to the last. He was a good scholar, and some of the Latin verses preserved in the 'Life' are at least creditable. He was well versed in French, and he wrote and read Persian. His English style was nervous and manly. Both Impey and Hastings were water-drinkers.

Impey married on 18 Jan. 1768 Mary, daughter of Sir John Reade of Shipton Court, Oxfordshire. His eldest son, Michael, a major in the 64th foot, who had seen some service in the West Indies, was killed in a duel with Lieutenant Willis of his own regiment at Quebec on 1 Sept. 1801; he left a widow and five children. Impey's second son, John, became an admiral. Three younger sons, Elijah Barwell (1780-1849), Hastings (1784-1805), and Edward (b. 1785), were, like their father, king's scholars of Westminster. Elijah Barwell was elected to Christ Church, Oxford, in 1799 (B.A. 1803, M.A. 1806), and remained a student on the foundation till his death on 3 May 1849. He was a cornet in the 14th dragoons in 1808, but soon retired from the army, and devoted himself to literature. He published a volume of poems in 1811, 'Illustrations of German Poetry,' 1841, and a life of his father, 1846 (Welsh, Alumni Westm. p. 451). Hastings Impey, Sir Elijah's favourite son, and his brother Edward went to India as writers in 1800. The former died there 5 June 1805, and the latter returned to England in 1819 (ib. pp. 450, 452). A natural son, Archibald Elijah Impey (1766-1831), was educated at Tiverton, and as a king's scholar at Westminster from 1778. He graduated B.A. from Trinity College, Cambridge, in 1787 (M.A. 1791); was called to the bar of the `Inner Temple' in 1788; aided his father in his defence in 1788; was a commissioner of bankrupts; was commissioner for settling British claims on France under the treaty of peace of 4 May 1814; became a bencher of the Inner Temple in 1830, and, dying 9 July 1831, was buried in the Temple Church, where there is a monument to his memory, now in the triforium gallery of the round church. It was erected by his widow Sarah, who died 18 Nov. 1842 aged 65 (Gent. Mag. 1831, ii. 91; Welsh, Alumni Westm. p. 409; Benchers of the Inner Temple, 1883, p. 98).

A portrait of Sir Elijah by Zoffany is in the National Portrait Gallery. Another, by Tilly Kettle,was engraved by Carlos as frontispiece to the biography by his son. His letters and papers, including much of his correspondence with Hastings, were presented in 1846 by his son and biographer to the British Museum, and are numbered there Addit. MSS. 16259-70. Other parts of his correspondence with Hastings are among the Hastings papers in the Museum (MSS. Addit. 29136-93).

[Memoirs of Sir Elijah Impey, by his son, Elijah Barwell Impey, London, 1846, is a confused and controversial book, but does credit to the character of father and son. It was written to counteract the hostile view of Impey's character and conduct taken by Macaulay in his article on Warren Hastings. The Speech (Stockdale, London, 1788) is valuable for its appendices. The part played by Impey in Nand Kumar's trial is fully discussed in the Story of Nuncomar, by Sir J. Stephen, London, 1885, which is a powerful vindication of Impey; and the Trial of Nand Kumar, by H. Beveridge, Calcutta, 1886, which is adverse to Impey. Busteed (Echoes of Old Calcutta, 2nd edit.), while acknowledging the research shown by Mr. Beveridge, adopts the conclusion of Sir J. F. Stephen; see also Warren Hastings, by Sir A. C. Lyall, 1889.]

H. G. K.

Dictionary of National Biography, Errata (1904), p.163
N.B.— f.e. stands for from end and l.l. for last line

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419 i 17 Impey, Sir Elijah: omit second in the classical tripos,

There are also portraits of Sir Elijah Impey in the High Court in Calcutta ( Kolkata ) and in the Queen Victoria Museum in Kolkata. There is also a plaque on the wall of the house once occupied by the Vansittart family in Kolkata, stating that he had once lived in the Vansittart Garden House.