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.