Part 2

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.

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[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]