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East-India Company, by Anonymous
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Title: A Caution to the Directors of the East-India Company
With Regard to their Making the Midsummer Dividend of Five Per Cent.
Author: Anonymous
Release Date: August 12, 2011 [EBook #37048]
Language: English
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A
CAUTION
TO THE
DIRECTORS
OF THE
EAST-INDIA COMPANY,
With regard to their making the
Midsummer Dividend of Five per Cent.
WITHOUT
Due Attention to a late ACT of PARLIAMENT,
and a BY-LAW of their own.
"Upon the Whole, I will beg Leave to tell what is really my Opinion: It
is, that it be repealed absolutely, totally, and immediately."
_A late celebrated Speech._
LONDON:
Printed for GEORGE KEARSLY, in Ludgate-Street.
MDCCLXVII.
A
CAUTION
TO THE
DIRECTORS, &c.
GENTLEMEN,
Perhaps there never was such a necessity, for an address to you upon the
subject of _caution_, since the East-India company was established, as
at present.--Your great successes in India, have drawn upon you the envy
of your own countrymen, as well as the other European powers; the great
increase of your dividend, has alarmed the proprietors of other funds
for their own property; the differences among yourselves, and your
fellow-proprietors, have furnished this envy, and these fears, with the
means perhaps of overturning your constitution.
Tho' I will not presume to determine, whence these differences arose, or
who have been to blame, that not being part of the present design, you
will agree with me they have drawn upon you the notice of the
legislature, and have produced an act of parliament, that affords either
party but little cause for rejoicing, however grateful it may be to the
public. I must suppose you would wish to keep your _golden fleece_ to
yourselves--union among yourselves would have secured it--but your
differences have exasperated the watchful dragon, the _guardian_ of this
_treasure_, and you now only hold it in _participation_--A strange
_participation_ too, where the public is to receive four hundred
thousand pounds, while you are to receive _nothing_--I say
_nothing_--for I shall endeavour to prove you cannot make your dividend
of 5l. _per cent._ due the 5th of last July, nor will you be able, as
things now stand, to declare the dividend of 5l. _per cent._ at
Christmas next.
I am satisfied that such a consequence as this, will not be admitted
without some proof; but I should conceive very little proof necessary,
to awaken your _caution_, at the time you are going to pay the 5l. _per
cent._ dividend, if it is but hinted, that it cannot be done without
incurring a danger of the censure of parliament. I presume only to
recommend _caution_, but I will submit to your better judgments, the
reasons which convince me, that while the late act of parliament, for
regulating your dividends, remains in force, you cannot divide the 5l.
_per cent._ which you have declared payable the 5th of July last, nor
can you declare, or make the like dividend of 5l. _per cent._ at
Christmas next.
I will set down the proper clauses in the several acts of parliament,
with a letter of the alphabet before each, for the convenience of
referring to them, as occasion may offer.
CAP. 49. A.
"That no dividend shall be made by the said company, for, or in respect
of any time, subsequent to the 24th day of June, 1767, otherwise than in
pursuance of a vote, or resolution, passed by way of ballotting, in a
general court of the said company, which shall have been summoned for
the purpose of declaring a dividend, and of the meeting of which general
court, seven days notice at the least, shall have been given in writing,
fixed upon the Royal Exchange in London."
IBID.--B.
"That it shall not be lawful, for any general court of the said company,
at any time between the eighth day of May, 1767, and the beginning of
the next session of parliament, to declare, or resolve upon, any
encrease of dividend, beyond the rate of 10l. _per cent. per ann._
being the rate at which the dividend for the half year ending the 24th
day of June, 1767, is made payable."
CAP. 48. C.
"That, from and after the 10th day of July, 1767, no declaration of a
dividend shall be made, by any general court, of any of the said
company's, other than one of the half yearly, or quarterly general
courts, at the distance of five calendar months, at the least, from the
last preceding declaration, of a dividend, and that no declaration of
more than one half yearly dividend, shall be made by one general court."
29. BY-LAW. D.
"That no _alteration_ be made in the dividend, on the capital stock of
this company, without first giving six months publick notice."
By clause A, it appears that no dividend can be made, after the 24th of
June, without the vote of a general court, (and by clause C, that must
be a quarterly court) called for the purpose of declaring the intended
dividend, with seven days previous notice thereof, in writing fixed upon
the Royal Exchange--by the resolution, of your court of directors, of
the 22d of May last, as well as by your uniform practice in making
dividends, the half year's dividend of 5l. _per cent._ declared in
September last, and now in course of payment, was due the 5th of July
last, and that day, and not the 24th of June, is the day on which this
dividend must be understood to be made, in consequence of the September
declaration. Now as this dividend declared to be made on the 5th of
July, is made for and in respect of time subsequent to the 24th of June,
and is made not in pursuance of a vote, carried by ballot, in a general
quarterly court, summoned for the purpose of declaring a dividend, with
seven days notice of such a meeting, given in writing and fixed upon the
Royal Exchange, it is not warranted by the act, but is, according to
the plain and obvious construction of the act, _illegal_.
I have heard two objections, and two only, made to this construction;
one, that the legislature was mistaken as to the time, in which the
dividends are always made by this company, supposing them payable the
24th of June, instead of the 5th of July, and that they did not intend
to prevent your dividing 5l. _per cent._ at Midsummer. The other, that
if they were not mistaken, and if they did intend to prevent your
dividing the 5l. _per cent._ at Midsummer, the act itself fails in this
intention, since it only prevents your dividing for eleven days, being
the interval between the 24th of June and the 5th of July, and you are,
on this account, left at liberty to pay the 5l. _per cent._ after
deducting the proportional part for those eleven days.
As to the first, I think nothing can be more absurd, than to suppose
that the wisdom of the legislature, should be capable of such a
blunder. In order to this, we must suppose, that they who, in the same
session, made a law with respect to the publick funds, in which the
dividends are fixed for payment on the 5th of July, and the 5th of
January, could take it for granted that the India dividends were fixed
for the 24th of June and the 24th of December; and we must suppose too
that they could take this for granted, which is so contrary to the
general practice in other funds, without making any enquiry of the
directors, who daily attended, and were examined while the bill was
passing: for if they did make enquiry, they must have heard that this
company observed the same days of payment with the government, and have
done so invariably from the original institution; and in such a case,
the blunder can hardly be called the effect of oversight, but a wilful
blindness.
This absurdity is too gross to pass current, but the clause (C) in cap.
48 of the said act, will shew that the parliament were not ignorant,
that the dividends would become due on the 5th of July, but have
proceeded on the consideration of it's being due on that day. In this
clause, they say, that no _declaration_, &c. shall be after the 10th of
July. Now when they had in contemplation the _making_ of a dividend,
they mentioned the 24th of June, a time preceding the 5th of July, in
order to prevent it; when they had in contemplation the _declaring_ of a
dividend, they say the 10th of July subsequent to the 5th, to
distinguish between the terms _making_ and _declaring_, which have been
so often confounded.
It must appear highly improbable to every impartial mind, that the
legislature should enact a law, to regulate the making of dividends,
without knowing the time, when they are made payable; or if they were
ignorant, that they would not enquire, when the directors attended to
answer all enquiries, and were actually examined from day to day, while
the bill was framing; and very few will be hardy enough to affirm, that
if the parliament were aware, that the dividends would be due the 5th
of July, such a blunder could creep into the act of parliament. The most
natural construction, upon reading the said act, is, that the 24th of
June was not inserted by mistake, but by design, and that the
legislature plainly intended, in the restraining clauses, that the India
company should make no dividend at all from Christmas last, which was
before the encrease of the dividend, to the beginning of the next
session of parliament; in which time, all your homeward-bound ships
would arrive, the Midsummer annual account would be made up, and the
ministry would have an opportunity of learning from Lord Clive, what was
the real situation of the affairs in India.
I know it is commonly imagined to have been the intention of parliament,
to rescind the resolution of the 6th of May about the 6l. and 1-4th.
_per cent._ but this imagination is contrary to fact, for that
resolution is unrepealed, unrescinded, and unless the parliament, at the
next meeting, shall make some law to prevent it, you may divide 6l.
1-4th _per cent._ at Christmas next--No single word, in either act of
parliament, mentions the resolution of the 6th of May, and the act which
restrains the dividing between the 8th of May, and the beginning of the
next session, manifestly avoided mentioning the 6th of May, and made the
interval of restraint commence on the 8th, to shew it did not mean to
rescind the resolution of the 6th of May. Had the parliament designed to
restrain the dividing according to that resolution at Christmas next,
the interval of restraint would have gone beyond the 5th of January--as
that clause, which restrains the present dividend, the manifest object
of the parliament, stopt short of the 5th of July, and would not have
stopt, as it has done, at the beginning of the next session of
parliament.
The preamble of the act professes nothing for its object, but "to secure
as well the permanent interest of the company, as the state of credit
both private and public, from the mischiefs which must ensue, from an
improper, and improvident increase of the dividends of the said
company." Thus the parliament had in view only improper and improvident
dividends, dividends made without a due regard to the circumstances of
the company, whether the same should be 12l. 1-half _per cent._ 10l.
_per cent._ or 6l. _per cent._ And I may appeal to yourselves,
Gentlemen, whether you had any objection to the dividend of 12l. 1-half
taking place at Christmas, that did not arise from a consideration of
these circumstances, from your apprehension that your finances would not
be such at Christmas, as to enable you to pay off the company's debts,
to pay the 200,000l. the first half yearly payment to government, and to
make a dividend of 6l. 1-4th to the proprietors. And I would ask,
Whether any other consideration weighed with the legislature? You will
confess, as the undoubted truth is, that this alone made you wish, that
parliament would interpose to prevent the dividing 6l. 1-4th at
Christmas. And I affirm this alone determined the wisdom of the
legislature to interpose for that purpose. They have interposed, and
what have they done? They have stopped your making any dividend till the
meeting of parliament. But they have determined nothing with respect to
the 6l. 1-4th _per cent._ The resolution of the 6th of May stands
unrepealed; and if it shall then appear, such an increase will not be
improper, and improvident, at Christmas next, if, I say, Gentlemen,
after the arrival of the homeward-bound ships, after the examination of
the annual account, which has never yet been produced, if after hearing
the opinion of Lord Clive, concerning the real situation of your affairs
in India, the flourishing state of your trade, the regular payment of
your revenue, and the stability of your possessions, you shall think
that the 6l. 1-4th _per cent._ may be paid without giving any cause of
complaint to the creditors of the company, and join with the general
court in a representation to the ministry, that such an encrease will
not be improper, or improvident, at Christmas, there can be no reason to
suppose, that parliament will again interpose, by a new act, to restrain
your making such a dividend; and if they do not interpose by a new act,
you may divide 6l. 1-4th _per cent._ by a due exercise of your present
powers, as will be shewn in another place. But should there, on the
contrary, be any room, at the meeting of the parliament, to believe such
a dividend at Christmas will be improper and improvident, it is no doubt
the intention of parliament to make a new act, the next session, to
restrain your dividing 12l. 1-half _per cent._ 10l. _per cent._ 6l. _per
cent._ or any _per cent._ at all, if it shall be so necessary, in order
to prevent the mischiefs recited in the preamble before mentioned.
The remedy provided by the wisdom of the legislature, is, according to
this construction, adequate to the mischiefs apprehended; as at the
time of making the act, the dividend even of five _per cent._ was proved
by you, and nothing can be clearer than that you did prove it, to be
improper and improvident, they have restrained it till the meeting of
parliament, and as it may then be represented by you, that such a
dividend will not be improper, or improvident, they have made the time
of restriction stop at that period, to give you a future power of
dividing that sum, or 6l. 1-4th agreeable to the resolution of the 6th
of May, if they see no reason for interposing against it. But if the
legislature had not restrained you from making any dividend, between the
24th of June, and the beginning of the next session of parliament, if
they had left you to divide the 5l. _per cent._ dividend for the 5th of
July, they would have provided no present remedy at all.
It is well known, you opposed the encrease of dividend to 10l. _per
cent._ in September last, and that you opposed it, upon the principle
of it's being improper and improvident, from the state of the account,
then produced by you to the general court. You have frequently declared
since, you thought this measure of raising the dividend to 10l. _per
cent. inexpedient_ and unwarrantable, as the company have not discharged
their debts--you opposed the resolution of increasing it to 12l. 1-half
on the 6th of May, in no other manner, but by producing in court the
same state of the company's affairs, upon which you opposed the
increasing it to 10l. _per cent._ in the month of September, and
declaring the state of affairs was not altered since that time; from
whence it was to be understood that there was, in your opinion, no
better reason for dividing 6l. 1-4th in May, than there had been, for
dividing 5l. _per cent._ in September. On this principle, and on this
principle alone, you called in the aid of the legislature, to assist you
in preventing the mischief, that must be produced by such improper and
improvident dividends, and on this principle alone the parliament
interposed to support you--you proved to them you could not divide 6l.
1-4th, you proved too, by the same arguments, that you could not divide
5l. nay, that you could not divide at all; for I may with confidence
affirm, that not a single argument was advanced to prove the dividend of
6l. 1-4th to be improper and improvident, that did not extend to prove
the dividend of 5l. _per cent._ or any dividend at all, equally so.
I am warranted to go farther. If the company would not, in your opinion,
be in a condition at Christmas to divide 6l. 1-4th, when the
homeward-bound ships should have arrived, there was much less reason for
suffering you to divide 5l. _per cent._ at Midsummer, while the ships
were still upon the seas, the annual account unsettled, and the state of
your affairs in India unknown. And yet, after this it seems, we are to
suppose the legislature did not intend to prevent you making the 5l.
_per cent._ dividend declared to be due the 5th of July. We are to
suppose, that they did not intend to hinder your dividing after the rate
of 10l. _per cent._ at Midsummer, when any dividend at all was proved
improper and improvident, but that they intended to hinder your making a
dividend after the rate of 12l. 1-half _per cent._ at Christmas, when
future arrivals, and future accounts, might make such a dividend proper
and expedient.
We all saw with concern, that the members of both houses were detained
in town, to lend the wished-for interposition; had the Christmas
dividend been the sole object of their attention, the business might
have been postponed till the next session, as that is expected to take
place before this dividend can be made; and the rather, as those lights
may then be had, which could not be expected, though much wished for, at
the end of the last session. But as preventing the dividend of 5l. _per
cent._ declared for the 5th of July, was the principal object, it was
necessary to settle that business before the session was closed; and I
believe you are satisfied, Gentlemen, there was sufficient evidence laid
by you before both houses, to prove a dividend of 5l. _per cent._
improper and improvident at that time, whether you agree to determine a
dividend with the deputy-chairman upon a cash account, or with the
chairman upon a general account. The wisdom of the legislature has stopt
your dividing at Midsummer, while your ability is doubtful, and has left
it in your power, after the beginning of the next session, to make a
dividend of 6l. 1-4th at Christmas, if your ability is no longer
doubtful at that time.
I presume, the first objection is by this time sufficiently answered,
that it is clear the legislature made no mistake when they inserted the
24th of June; and that they meant to prevent any dividing between that
day and the meeting of parliament.
I shall now proceed to the second objection, _viz._ That whether the
legislature meant to prevent the dividend of 5l. _per cent._ taking
place the 5th of July or not, the act will not have the effect contended
for--it is insisted, that the clause (A) which restrains the company
from making "any dividend, for, or in respect of, any time subsequent to
the 24th of June, 1767," includes no more than the eleven days, between
that day and the 5th of July, and will not affect the rest of the half
year, but a proportionable dividend may be made up to the 24th of June.
By a resolution of a general court, held in September last, the company
declared, that they would make a dividend on the 5th of July, then next
following, of 5l. for every hundred, for the half year between the 5th
of January and the 5th of July following. The sum to be divided, is 5l.
for every hundred pounds. The time for which it is declared, is half a
year. The day of payment 5 July. If the eleven days are deducted, you
will divide only 4l. 13s. 10d. halfpenny, and not 5l. for every hundred.
The dividend will not be for half a year. Nor will it be due the 5th of
July, but the 24th of June.--This, and the September resolution, will be
as different as any two proportions can possibly be, in which no single
term is common to both. And such a dividend as this, can no more be said
to be made by virtue of the resolution of September, than it can be said
to be made by virtue of the preceding resolution, for dividing only 3l.
_per cent._ or that of the 6th of May for 6l. 1-4th.
The dividends on the India company's property, are different from those
on the government stock. The latter are intended by parliament, to
continue a certain, or uncertain number of years, and the rate of
interest is fixed unalterably, during the continuance of such stock, to
be paid half yearly, on the 5th of January and the 5th of July; the
India dividends have been declared by the company, when, how, for what
time, and for what sum, they please. They might, before the 29th by-law
was made, divide monthly, weekly, or on a distant day that cannot be
called either a weekly, monthly, or half yearly payment; and before the
appointed day, they might vary the dividend, might increase, decrease,
or annul it.--Their usual practice has been, to declare a certain
specific sum to be paid on a certain day, for the half year between such
a day and such a day, and not as the government does, an annual sum
payable half yearly.--They have not declared by the resolution of
September an annual dividend of 10l. _per cent._ payable half yearly, in
which case, perhaps, an apportionment might be admitted, but they have
declared, the specific sum of 5l. for every hundred, to be paid on the
5th of July; in like manner as on the 6th of May, they did not declare
an annual dividend of 12l. 1-half _per cent._ but the specific sum of
6l. 5s. to be paid for the half yearly dividend on the 5th of January
next.
The general court in September had only in contemplation the
apportionment of the dividend to the quantity of stock possessed by each
proprietor; the division of time was never under consideration; the time
was given, _viz._ half a year between the 5th of January and the 5th of
July; had the quantity of stock been given, _viz._ had every proprietor
held 100l. and no more or less, the court would then have declared, that
every proprietor should receive 5l. on the 5th day of July. If the time
is altered, the original proportion is changed; the proprietor of 100l.
stock, will not receive the 5l. _per cent._ that was declared. And what
is offered in lieu of it, is not to be found in any part of the
resolution, under which it is pre-to be made.
Again, if any case can be supposed to have happened, before the passing
of these acts, that might have made it necessary, or prudent, for the
India company to make a dividend for four months, instead of six, would
you, Gentlemen, have presumed to make a proportionable dividend for four
months, under the resolution, that declared a dividend for six, or would
not you rather have called together the proprietors to get this new
resolution made by a general court? you undoubtedly would, you certainly
must; such a change in the time of making dividends payable, must have
been stiled an alteration in your dividend; and the 29th by-law would
have made it necessary for you to give six months notice of such an
alteration. I would ask, where the difference is, whether the alteration
be from six months, to four months, or from 182 days, to 171, which is
the present alteration? the one is an alteration of months, the other of
days, but they are equally alterations, the alterations equally demand a
new declaration, and are equally objects of the 29th by-law. And you can
no more divide for 171 days, ending the 24th of June, under a
declaration that orders you to divide for 182, ending the 5th of July,
than you could make three payments of four months in a year, under a
declaration of two half yearly one's.
The legislature, in the act of parliament for the alteration of the
stile, has said, that Midsummer-day shall fall on the 24th of June;
because this alteration would have carried it otherwise to the 5th of
July; the stocks however have not been affected by that act, the 5th of
July, and the 5th of Jan. have been constantly the days of payment, for
the Midsummer, and Christmas dividends, for most of the government as
well as the East India stocks. Would any administration alter the days
of payment of the government stock, without the sanction of parliament?
you will not say, Gentlemen, they would. I will venture to affirm for
you too, that you will not make this trifling alteration, of dividing
for 171, instead of 182 days, or, at least, that you will first take
the opinion of a general court upon it, that your enemies may not have
room to say, that you did not care to call a court for this purpose,
from a consciousness, that the 29th by-law, and the acts of parliament,
would stand in your way, if you submitted this difficulty to a serious
discussion. They certainly do stand in your way, the legislature
intended they should stand in your way, and so long as that by-law, and
these acts of parliament, remain in force, it will be impossible for you
to divide the 5l. _per cent._ now in course of payment.
Before I dismiss this part of the argument, I must submit to your
consideration two necessary consequences, that must follow from your
determining to make the dividend of 4l. 13s. 10d. halfpenny _per cent._
payable the 24th of June, instead of the 5l. _per cent._ that was
declared payable the 5th of July. First, a great confusion must arise
in the foreign contracts; a Dutchman at Amsterdam sells stock, on the
25th of June, to another of the same place; the dividend is understood
by each party to be the property of the purchaser, as no proprietor,
foreign or domestic, is ignorant, that the India Midsummer dividend is
payable, and has ever been payable, the 5th of July; and yet, according
to this determination, the 4l. 13s. and 10d. halfpenny _per cent._ will
be the property of the seller. Secondly, it is well known much of the
India stock is held in trust, that A. shall enjoy the dividends for his
life, and after his death they shall go to B. I am told such a case has
happened, in which, A. died the 27th of June last, it is certain the
dividend would belong to B, if it is paid the 5th of July; but it will
go to the executor of A, to the prejudice of B, if you pay the 4l. 13s.
10d. halfpenny for the dividend due the 24th of June.
These are the reasons which induce me to think, Gentlemen, that the
legislature did not mistake the time the dividends become due, that they
did not mean the 5th of July, when they inserted the 24th of June, that
they intended to restrain the company from making any dividend, before
the beginning of the next session of parliament, and that they have
effectually restrained you by the clause A.
Yet I will suppose, for the present, you still think that the
legislature had no such intention of retraining the present dividend of
10l. _per cent._ and inserted the 24th of June, instead of the 5th of
July, imagining the dividend became payable on the former, instead of
the latter of those days; would you, Gentlemen, in such a case, take
upon yourselves to divide contrary to the express words of an act of
parliament? And would you justify this disobedience to the law, by
imputing a blunder to the only body upon earth in which we can allow
infallibility? It will not surely give offence, if I presume you may be
mistaken in your construction of the act, while you fix the charge, of
saying one thing, and meaning another, upon the king, lords, and commons
of this realm; and should your judgment not be infallible, and in your
construction of this law, the mistake should be on your side, ignorance
will be but a poor plea for the breach of an act, which you arraigned
upon the same principle. If the law maxim, _ignorantia legis neminem
excusat_ is ever to be justified upon the principle of humanity, it will
be in this case, where it interprets the law, contrary to the express
and obvious meaning of it.
If, for the sake of argument, we admit that the legislature may have
committed this blunder, do you allow it to be consistent, with the rules
of true policy, to let those who are the objects of a law, become the
interpreters, much more the correctors of it? Suppose a law should prove
hurtful to society; let us suppose, if such a case can be supposed, it
would break in upon the security of life, liberty, and property, which
it is the sole object of law to support? No power in this kingdom, can
alter such a law, but that which made it; and the judges, who are the
interpreters of the law, are bound to determine all cases which come
under that law, according to the plain and obvious construction of it.
They cannot correct; their province is, to tell what the law is, not
what it should be. Will you assume a power to yourselves, not granted to
the king's judges? Will you, Gentlemen, presume to interpret, that the
legislature should have said the 5th of July, instead of the 24th of
June; and determine, that the dividend shall be made which stands
restrained by the express words of that law?
If you will correct the law, why will you not do it with as little
violence as possible? Why will you not alter 1767, and say it should be
1768? In that case, the law would not take place this twelve month,
there would be no doubt about your dividends, in the mean time, and this
will be but the alteration of a single figure, while what you contend
for, changes words as well as figures.
You will say, no doubt, that you do not desire the proprietors should
divide 6l. 1-4th at Christmas, which they would, if this construction
was allowed; they are not in cash, they have not paid their debts, is
certainly a good argument, but not insuperable, against dividing; you
opposed the dividend of 5l. _per cent._ in September, upon the same
principles. That you should not be in cash, that you had not paid your
debts, was your only objection at that time; and we now find you
straining the law, makeing an act of parliament say it meant July, when
it said June; and intended to insert the figure 5, when it made use of
24, in order that you may now make this dividend, which you opposed when
it was declared in September last. You would now make the legislature
say, it was not their meaning to rescind this dividend of 5l. _per
cent._ when they have rescinded it in direct terms, because you proved
you should not be in cash, and should not have paid your debts at the
time it would be payable.
I will venture to affirm too, that you would not be half so
inconsistent, in using the same industry, and following the same method
of interpretation, to divide after the rate of 12l. 1-half _per cent._
at Christmas; for the legislature, as we have proved, have not shewn
their intention of rescinding absolutely, this 12l. 1-half, while the
10l. _per cent._ is restrained as matters stand, beyond all dispute, and
can never be made, but in defiance of the power of parliament, and
without such a defiance, as, if it is to be justified, will justify the
violation of all law, divine and human. A law of England says, you shall
_not_ divide up to the 5th of July, being after the 24th of June; you
substitute the 5th of July in the place of the 24th of June, and then
say, you may divide up to the 5th of July. The law of Moses says, Thou
shalt _not_ steal; you strike out the word _not_, by a less violent
alteration, and then theft becomes as little a crime in England, as it
was at Sparta.
But I would beg leave to ask, if the mistake contended for should be
admitted on all hands, would you take upon yourselves to correct it, or
wait till it was rectified by parliament? If when a deed is executed, a
mistake is discovered, it cannot be corrected without the privity, and
consent, of all parties; if blunders are made in law pleadings, that are
upon record, they cannot be amended without the leave of the court,
which has the custody of such records: a trustee in such deed would not
pay a sum of money contrary to the express words of the deed, but would
wait till the matter was set right; nor would a party in any cause
presume upon a mistake in a record, to disobey the orders of a court of
justice; and will you, Gentlemen, give less authority to an act of the
legislature, than to a private deed, or the record of any petty court of
law?
We must suppose the legislature will be as jealous of their resolutions,
as the East-India company are of theirs. You cannot have forgot the
proceedings of a late general court, upon the subject of dismissing the
prosecutions brought against some of your servants abroad.--This
business was brought on at that court, on account of the clamours raised
without doors, and at the recommendation of a worthy member, to whom you
owe the two acts of parliament, that you then so much desired to be
made, and now so much wish to break through. It was proposed at that
court, that the question for dismissing these prosecutions should be put
to a ballot, to convince all the world, that the resolution of the 6th
of May, for this dismission, which was confirmed on the 8th, was not a
partial one, but agreeable to the sense of all the proprietors taken at
large. I believe there was not a proprietor in the court who did not
wish that such a ballot could be taken; but when it came to be
considered, that the question then proposed to be submitted to a third
decision, had been unanimously voted on the 6th of May, and as
unanimously confirmed on the 8th, the great importance of giving weight,
and stability, to their resolutions, determined the wisdom of that
court, to put the propriety of such a measure to the test of a previous
question, which was proposed, put, and carried, by a great and
respectable majority, against a third consideration.
You will after this, Gentlemen, assume with an ill grace, that the
parliament are not to support these resolutions; however you may wish to
have them reconsidered, or repealed. They certainly will support their
resolutions, and I need not remind you that the breach of an act of
parliament will be a forfeiture of your charter.--And though a gentle
administration might treat your dividing upon such a notion of a mistake
with great lenity, what are you not to expect, if the minister should
say, you have made the dividend we meant to restrain; we restrained it,
because you convinced us it would be improper and improvident; you have
since changed your mind, and you would alter the law? Here even the
lenity of the present ministry cannot avail you; your charter would be
forfeited, and the world would not pity, but laugh at your presumption.
But to suppose still, that the legislature are mistaken, may we not
suppose too a change in the present administration, and that a future
minister may embrace this, as a fair opportunity, to seize upon the
charter, or at least to squeeze the company, and make them purchase a
forgiveness at a very high price? If we plead that we injured nobody, it
may be said, we have insulted the dignity of parliament, and a minister,
who may be no friend to the company, will have a very plausible pretence
to make you part with your millions for the public good.
However heavy you should find the rod of power, the world will not then
hearken to your complaints of severity; you have already drawn upon you
the censure of your fellow subjects, by the resolution of the 6th of
May, with regard to your dividends, which they say were made, in
defiance of the king's ministers. The previous question upon the affair
of dismissing the prosecutions has not retrieved your credit among them.
What will they not think, what will they not say, if you divide thus in
violation of a recent act of parliament? They see the legislature has
determined you shall not divide, because you have proved you cannot
divide; will they not say now, that you have determined, in your turn,
you will divide, because the legislature has said you shall not divide?
I conjure you therefore, Gentlemen, use the utmost caution at the
present crisis, call in the ablest assistance, whilst you are making a
construction on these acts of parliament, nor presume too far to trust
your own judgments.
I am the more earnest in this recommendation, as I find you mistake the
intention, and operation, of these acts, with respect to a Christmas
dividend, as you do with respect to this you are now going to pay. I
understand, it is your opinion, that in order to make a dividend of 5l.
_per cent._ at Christmas next, a court may be called in September with
the seven days notice, prescribed by the said act, cap. 49, and 5l. _per
cent._ may be then declared, by a vote taken by ballot, to be payable at
Christmas. I must remind you, that the vote for 12l. 1-half, passed on
the 6th of May, stands unrepealed by you, or by parliament, and by
clause C. you cannot make any declaration of a dividend, but at the
distance of five months from the last declaration; which five months,
from the 6th of May, will not be expired, till October, when you cannot
hold the Michaelmas quarterly court, because your charter, in page 36,
expressly says, it must be held in the month of September. You cannot
therefore declare any dividend till the Christmas court, as by the said
clause C. every declaration must be made at a quarterly court; nor can
you even then declare a dividend of 5l. _per cent._ as the 29th by-law
will stand in your way, which enacts, "that no alteration shall be made
in the dividend, on the capital stock of this company, without first
giving six months public notice;" and such notice cannot be given of the
intended alteration of dividend, from 6l. 1-4th to 5l. _per cent._ You
see, therefore, that no dividend can be declared at Christmas next but
the 6l. 1-4th, and that may be confidently declared, without infringing
any act of parliament, or any of your own by-laws.
Do you ask then, how I would construe the late acts? and what measures I
would advise you to take? My design is only to awaken your _caution_.
But as a well-wisher to you and the company, and interested in it's
welfare, I will further offer my sentiments on the conduct necessary to
be observed on this occasion.
I consider the intention of the legislature, to be what is professed in
the preamble of cap. 49, to prevent improper and improvident dividends:
you only proved, when the affair was before parliament, the dividend at
Midsummer, to be improper and improvident, because the homeward-bound
ships were not arrived, the advices from Lord Clive were not received,
and the annual account itself was not yet made up. It was not, nor could
it at that time be disclosed to parliament, what dividend at Christmas
would be improper, or improvident; the legislature has therefore
restrained your Midsummer dividend, and has prevented your declaring any
dividend at all, till the next session, which is expected in November;
and if they shall then see no cause to restrain you further, you will
be at liberty to declare and divide your 6l. 1-4th _per cent._ at
Christmas; but if they should then find you in no better situation then
they left you in the last session, you may expect to be restrained by a
fresh law, in that dividend, as you are in this.
Are we then, say you, to lose the present dividend for ever? As things
stand at present, I answer, yes. If you divide, you divide in defiance
of the legislature, at the risque of your charter, and your own persons;
if you call a general court, and, with the sanction of such a court,
apply to parliament, by an humble petition, to have your Midsummer
dividend restored; there will be no room to believe the legislature will
not take off the refraction, if you prove yourselves in a condition to
make the dividend you propose, as we may be confident they would be
ready to rectify a mistake, in any act, whenever it should be pointed
out to them. I must however add, if the annual account, which the
gentlemen would not suffer you to produce, at the last general court,
will not bear the light, submit with patience to the present loss; but
if you think it will prove the dividend of 5l. _per cent._ at this
Midsummer, and 6l, 1-4th _per cent._ at Christmas, will be neither
improper or improvident, you will see this restricting clause _repealed
absolutely, totally, and immediately_.
I am, &c.
* * * * *
[Transcriber's Notes:
The transcriber made these changes to the text to correct obvious
errors:
1. p. 7 elven --> eleven
2. p. 9 declaning --> declaring
3. p. 23 under which it is pre- to be made. (left as published)
End of Transcriber's Notes]
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