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ill grace, that the parliament are not to support these resolutions; however you may wish to have them reconsidered, or repealed.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.