The Letters of Gracchus on the East India Question

by William Augustus Miles

2. A right to administer the government and revenue of all the territories in India acquired by them during their term in the exclusive trade. This is a right delegated from the Crown, with the assent of Parliament; and which can be possessed by the Company no longer, than the authority from which it emanates has, or shall prescribe.

Upon the expiration of these temporary rights, which determine, as the law at present stands, in the ensuing year, 1814, the East India Company will remain in possession of whatever permanent rights shall be found to pertain to them.

II. The perpetual, or more properly, the permanent rights of the Company, must be considered under two distinct heads, viz. admitted and alleged.

§ 1. The admitted permanent rights are,

1. To be a Body Politic and Corporate, with perpetual succession.—This right has been confirmed by various succeeding Charters and Statutes. But there are some observations, which it is important to make upon this subject. The first Charter, granted by Queen Elizabeth, in 1601, to the first or London East India Company, created both its corporate capacity and its exclusive privilege, to continue for a term of fifteen years; but it provided, that, in case it should not prove beneficial to the Public, the whole of the grant might at any time be determined, upon two years notice given to the Company. The succeeding Charters of James I. Charles II. James II. and William and Mary, conferred, in the same manner, both the corporate capacity and the exclusive privilege; and though they did not, like the former, fix a term for their duration, yet they rendered the whole grant determinable upon three years notice. No provision is introduced into any of these Charters, to make the corporate capacity outlast the exclusive trade. When the principle of "a more national, general and extensive trade to India," declared in the Charter of the 5th of William and Mary, had been followed by the measure of creating a General Society of Merchants, and of erecting a New Company, the advocates for that measure took particular care to show, "That the Old Company, in reciting their Charters, had forgot to mention the provisos therein, viz. that the respective Kings of England, who granted them, reserved a discretionary power to make them void on three years warning[9]." This observation did not apply to their exclusive privilege only, but extended equally to their corporate capacity; both being determinable by the same warning, because both were derived from the same grant, the whole of which grant was made liable to that determination, notwithstanding their corporate capacity was to enjoy "perpetual succession." Hence it is manifest, that the perpetuity conferred by the Charter was not perpetuity of exclusive trade, or political power, but of corporate succession. But perpetual succession in a body corporate, does not imply perpetuity of duration, but merely uninterrupted succession of the individuals who compose it; which every corporate body must possess, whatever may be the term of its duration, in order that it may become, and may be able to perform the acts of, a legal person.

The Statute of 9 and 10, and the Charter of 10 William III. which created both the corporate capacity and the exclusive privilege of the New, or English Company, followed the example of the former Charter, granted to the Old Company, and rendered the whole grant determinable by the same process. But, in the 10th year of Queen Anne, after the two Companies had become United, they represented the great hazard they should encounter, by engaging in any considerable expenses for securing the Pepper Trade, under the limitation of that clause; in consequence of which representation the clause was repealed, and the limitation was left open. The Company from thence inferred, that they had acquired a perpetuity of duration, both for their corporate capacity and their exclusive privilege; the continuance of both of which had ever been subjected to the same rule of determination. They soon, however, became sensible that such could not be the true intention of the Act, and they "submitted themselves to Parliament[10]" on the subject; in consequence of which a limited term of exclusive trade was assigned them, without any limitation being imposed upon the negative perpetuity of duration, which they had acquired for their Corporation by the repeal of the determining clause. But it was not till the year 1730, the third year of the late King, that the Company obtained a true and positive perpetuity of duration for their Body Corporate; at which time an Act was passed, empowering them to continue to trade to the East Indies, as a Company of Merchants, although their exclusive right to the trade, and their power of administering the government and revenues of India, should be determined by Parliament. From that time only, the Incorporation and the Exclusive Privilege become distinguished. The distinctions here made will be found of material importance, in another part of this statement.

2. A right to acquire and possess lands, tenements, and property of every kind; and to dispose of the same, under a Common Seal.—This right was conferred by the Charter of the 10th of King William; but by Stat. 3 G. 2. c. 14. § 14. the Company's estates in Great Britain were limited to the value of 10,000l. per annum. In virtue of this right, the East India Company were empowered to settle "factories and plantations," within the limits of their exclusive trade. The Charter of William, indeed, adds also "forts," with the power of "ruling, ordering, and governing them;" but that this privilege cannot attach upon their corporate and permanent capacity, will presently be made to appear. Fortresses and fortifications cannot, from their nature and use, become absolute private property; being part of the public defences of the Empire, they are (to speak with Lord Hale) "affected with a public interest, and therefore cease to be juris privati only[11]." The building a fort is an act done, in its nature, by virtue of a sovereign authority, and is therefore the dereliction of the private right of property for a public and general purpose. In asserting for the Company a private right to forts and fortifications, the Company's advocates have therefore fallen into an extreme error, from not discriminating between the rights which necessarily belong to their delegated sovereignty, and those which can alone be annexed to their commercial corporation. And this brings us to the consideration of

§ 2. The alleged permanent rights of the Company, which require to be considered under two descriptions, viz. rights alleged for them at the expiration of their last exclusive Charter, and rights alleged by them at the present moment, with a view to the renewal of their present Charter. These are the rights, or more properly the pretensions, which have been pronounced by Gracchus, "absolutely unmaintainable, and incompatible with the freedom of British subjects;" and not their true legitimate rights, as the writer of a letter under the signature of Probus has chosen to assume.

The rights alleged for them were these:—