The Trial of Raja Nandkumar, 1775

June 1775. The trial. The indictment contained twenty counts, framed on the English statute 2 Geo. II c. 25, which made it a capital felony to forge or publish a bond, promissory note or writing obligatory with intent to defraud. The reason for so many counts is technical and worth knowing: by the rules of criminal pleading each count had to charge one offence and no more, and an indictment for forgery had to state the person intended to be defrauded, so the same act produced counts for forging and for publishing, against a bond, a writing obligatory and a promissory note, and against each of several persons who might have been defrauded. Only the nineteenth and twentieth counts turned out to matter.

All four judges sat. A grand jury found the bill, and a petty jury of twelve Englishmen tried the case. Nandkumar's counsel challenged the first jury impanelled, and the challenge was allowed. The jury convicted.

5 August 1775. Nandkumar was hanged at Calcutta. The judges had power to respite, that is, to postpone, a capital sentence and refer the case to the Crown for mercy, and they did not use it. Clavering's own minute in the Bengal Secret Consultations records that a paper sent to him by Nandkumar on the 4th was left unread on his table until the 6th, "which was the day after his execution".

The legal objections, stated fairly

There are four, and a good answer states each and gives the answer to it.

One: the statute did not apply. Forgery was made a capital felony in England by an Act of 1728. Was that Act in force at Calcutta, and did it reach a Brahmin who was not an Englishman? The Court held that it was, and the strongest support for that view is the fact recorded in the next chapter: Radhacharan Mitra, a Hindu of rank, had been convicted and sentenced to death for forgery at Calcutta in 1765, ten years before the Supreme Court existed, and pardoned. The statute had been applied there before, and to a man of the same community and rank.

Two: the act was done before the Court existed. The alleged forgery was of 1770; the Court was created in 1774. The answer is that the Court's jurisdiction was over the offence and the offender, not over the date, and the statute creating the offence was already in force at Calcutta; but a student is entitled to think the point uncomfortable.

Three: the punishment was disproportionate and alien. Hanging for forgery was English law, and severe even in England; it was unknown to Hindu and Muslim law, and shocking to Indian opinion, particularly as applied to a Brahmin. That objection is unanswerable as a matter of policy, and it is the real force of the criticism. It is an objection to the Regulating Act's silence about the applicable law, more than to the judges.

Four: the timing. A man who accuses the Governor-General in March is prosecuted for conspiracy by the Governor-General in April, arrested for an old forgery in May, tried in June and hanged in August. Even if every step was regular, the sequence looks like what Macaulay said it was.

What can be said on the other side

The case against a conspiracy between Hastings and Impey, argued at length by Sir James Fitzjames Stephen, rests on facts rather than on character, and these are the ones to know.

The prosecutor for forgery was Mohan Prasad, not Hastings. Mohan Prasad was Nandkumar's own enemy, had made the same charge five years earlier, and had acted as attorney in the earlier civil litigation between the parties, so he knew details of the transaction that Hastings could not have known.

The deed alleged to be forged was in the custody of the Court until about 24 April, and Nandkumar was arrested on 6 May. To have got up such a prosecution in ten or twelve days, in a matter of accounts in several languages, would have required investigations of which there is no evidence and which nobody suggested to Hastings when he was cross-examined about the prosecution on oath.

The trial was before all four judges and a jury, and the verdict was the jury's.

Against all that stands the plain fact that the man hanged was the Governor-General's accuser, and that the Governor-General's own conspiracy prosecution was running at the same time. The honest answer says both.

A worked example: how to answer the question

Suppose the question is: "Discuss the trial of Raja Nandkumar. Was it a judicial murder?"

1. State the facts in order, with the four dates: March 1775 the accusation, April the conspiracy prosecution and bail, 6 May the arrest for forgery, June the trial, 5 August the execution.
2. State the legal basis: twenty counts on 2 Geo. II c. 25, tried by the Supreme Court in its criminal jurisdiction under the Charter of 1774, with a grand jury and a petty jury.
3. State the four objections, as above.
4. State the answers to them, including the 1765 conviction of Radhacharan Mitra, which is the fact most students do not know and which is worth a good deal in an answer.
5. Conclude honestly. The forms of English criminal law were observed. The application of English criminal law to an Indian for an Indian transaction, with a capital penalty unknown to his own law, was the fault of the Regulating Act rather than of the judges, and it is the reason the Settlement Act of 1781 had to provide expressly for the personal law of Hindus and Muslims.

What beginners get wrong

"Hastings prosecuted Nandkumar for forgery." He prosecuted him for conspiracy. The forgery prosecution was brought by Mohan Prasad. Merging the two is the commonest error in answers on this case.

"Nandkumar was tried for accusing Hastings." He was tried for forging a bond in a private transaction with a banker's estate. Whether the accusation caused the prosecution is exactly the question in dispute.

"The judges convicted him." The jury convicted him. The judges tried the case and passed sentence, and the criticism of them is that they did not respite the sentence, not that they returned the verdict.

"Impey was later convicted for it." He was impeached in the House of Commons and was acquitted of the charges. Impeachment is a political proceeding before Parliament, not a trial in a court, and Hastings too was impeached and acquitted.

Limits and criticism

The lasting significance of the case is not who was to blame. It is what it proved about the system.

The Supreme Court could try an Indian, on English criminal law, for an act committed before the Court existed, and hang him, and no authority in India could review it. The only appeal from a capital conviction was the judges' own power to respite, which they held and did not use. The Council could not intervene, and did not.

That is a court with no check on it in the country where it sits, applying a law the country does not know. Whatever one concludes about Impey, the arrangement itself was indefensible, and Parliament effectively conceded as much six years later.

Quick revision

• March 1775: Nandkumar accuses Hastings before the Council of taking presents, contrary to s.23 of the Regulating Act. Hastings is outvoted under s.8.
• April 1775: Hastings prosecutes Nandkumar, Fowke and Radhacharan for conspiracy; Nandkumar and Fowke held to bail.
• 6 May 1775: arrested for forgery of a bond of Bulaki Das, at the instance of Mohan Prasad, who had made the same charge about five years earlier in the Mayor's Court.
• June 1775: tried on twenty counts under 2 Geo. II c. 25 before all four judges; grand jury and petty jury; convicted.
• 5 August 1775: hanged. The judges' power to respite was not used.
• The strongest fact for the defence of the Court: Radhacharan Mitra was convicted of forgery at Calcutta in 1765 under the same statute and pardoned.

Test yourself

1. Who prosecuted Nandkumar for forgery, and who prosecuted him for conspiracy? Mohan Prasad prosecuted the forgery; Warren Hastings prosecuted the conspiracy. They are two different proceedings and merging them is the commonest mistake.

2. On what statute was the indictment framed, and how many counts did it contain? On 2 Geo. II c. 25, which made it a capital felony to forge or publish a bond, promissory note or writing obligatory with intent to defraud. There were twenty counts, because each count had to charge a single offence and to name the person intended to be defrauded.

3. State the four legal objections to the trial. That the English forgery statute did not apply at Calcutta or to a Hindu; that the act preceded the Court's creation; that a capital penalty for forgery was unknown to Hindu and Muslim law and shocking to Indian opinion; and that the sequence of accusation, prosecution, arrest and execution within five months makes the proceedings look directed.

4. What is the strongest answer to the first objection? That Radhacharan Mitra, a Hindu of rank, had been tried, convicted and sentenced to death for forgery at Calcutta in 1765 under the same statute, and pardoned. The statute had been applied at Calcutta to an Indian of the same rank ten years before the Supreme Court existed.

5. What does the case prove about the system, whatever one concludes about the judges? That a Crown court applying English criminal law could try and hang an Indian in Bengal with no appeal, no review by any authority in India, and no rule telling it what law to apply. That is a defect of the Regulating Act, and the Settlement Act of 1781 had to correct it.