The Letters of Gracchus on the East India Question

by William Augustus Miles

1. A right to possess in perpetuity certain extensive territories and seaports in India, after their right to the exclusive trade with those places shall cease. In consequence of different ancient Charters, granting to the Company an exclusive trade, together with certain powers of Government, they have acquired, and actually possess, various islands, seaports, forts, factories, settlements, districts, and territories in India, together with the island of St. Helena; either by grants from the Crown, by conquest, purchase, or by grants from the native powers in India. The nature and extent of their property in these several possessions, is an important public question. By grants from the Crown to the original or London Company, and by conveyance from that Company, they possess St. Helena and Bombay. By purchase, conquest, or by Indian grants, they possess Calcutta and Fort William, Madras, and Fort St. George, and various other important seats of trade; of all of which, for a long course of time; they have enjoyed the exclusive benefit.

With respect to the first of these; it is evident, that the Old Company could only convey the places which they held of the Crown as they themselves held them, and subject to the same principles of policy and state under which they themselves had received them. The Grants of Charles II., which conceded Bombay and St. Helena to the first Company, refer to the Charter of the 13th of the same reign, which Charter refers to, and confirms the preceding Charters of Elizabeth and James I., making them the ground of the Grants. The Charter of Elizabeth declares its principle to be, "the tendering the honour of the nation, the wealth of the people, the increase of navigation, the advancement of lawful traffic, and the benefit of the Commonwealth." The principle declared in the Charter of James I. is, "that it will be a very great honour, and in many respects profitable, to the Crown and the Commonwealth." By a reference to, and confirmation of, these several Charters, in the Charter of Charles II., and in the grants of St. Helena and Bombay, these principles are virtually adopted; the end and purpose of the Grants is declared; and their ground is proclaimed to be, the honour of the British Crown, and the welfare of the British Nation. It was those great public interests, and not the separate interests of the Company, that the Crown had in view, in conceding the property of those distant dependencies.

By grants from the native powers, the Company are in actual possession of many extensive and valuable territories. The doctrine of the law of England, in regard to the operation of these Grants, was distinctly and officially declared in the Report of the Attorney-General Mr. Pratt, and Solicitor-General Mr. Charles Yorke, in the year 1757, viz. That the moment the right of property vested in the Company by the Indian Grants, the right of sovereignty vested necessarily in the Crown of England. "The property of the soil (said those eminent lawyers) vested in the Company by the Indian Grants, subject only to Your Majesty's right of sovereignty over the settlements, and over the inhabitants as British subjects; who carry with them Your Majesty's laws, wherever they form colonies, and receive Your Majesty's protection by virtue of your Royal Charters[12]." In considering this head of right, the case of the five Northern Circars, to which the Company lay claim in their Petition, demands a particular attention; because, the advocates of the Company's pretensions are under a manifest error, with respect to their tenure of those territories. They maintain, that the Circars are held by the Company in perpetuity, under a military service, as tributaries to the Indian Power or Powers by which they were originally ceded; and that the Crown of England has no title to interfere, between them and their supposed Indian Chief. This pretension renders it absolutely necessary, to take a general view of the situation of the Company with respect to the Circars.

In the year 1753, the French were in the confirmed possession of the five Circars, together with the adjoining fort and dependencies of Masulipatam; of all of which they declared themselves to have obtained "the complete sovereignty for ever," by a grant from the Subah of the Deccan, a Prince nominally dependent on the Imperial Crown of the Mogul. "So that these territories (says Mr. Orme), rendered the French masters of the greatest dominion, both in extent and value, that had ever been possessed in Indostan by Europeans, not excepting the Portuguese when at the height of their prosperity[13]." The establishment of the French power in these important provinces, during the war between England and France, excited the most serious alarm in the Company, by threatening their settlements and possessions in Bengal; and called forth the vigorous and splendid exertions of Lord Clive, who, in the year 1759, sent a military force against Conflans, the French Commander, under the command of Colonel Forde. That gallant Officer succeeded in defeating the enemy in a pitched battle at Peddipore; and, pursuing him from one extremity of the Circars to the other, terminated the campaign by the capture of Masulipatam: and thus, by obliging the French to abandon the Circars, the right of conquest was made good against the French. For it is not necessary that every part of a conquered country should be acquired by a separate victory, if the enemy is compelled to evacuate his territory in consequence of any decisive operation; and the retention of Masulipatam, was the evidence of the triumph of the British arms over the French. That this was the object of the campaign, is distinctly shown in the declaration made by Lord Clive before the Select Committee of the House of Commons, in the year 1772. Lord Clive stated to the House, "That soon after his appointment of President of the Company's affairs in Bengal, in 1758, he took into his most serious consideration the situation of affairs upon the coast of Coromandel. Monsieur Lally was arrived with such a force, as threatened not only the destruction of all the settlements there, but of all the East India Company's possessions. That he thought it was his duty to contribute his mite towards the destruction of the French, and therefore projected the scheme of depriving the French of the Northern Circars, contrary to the inclination of his whole Council. That this expedition succeeded completely, for the French were totally driven out by Col. Forde, with the Company's troops, whose conduct and gallantry upon that occasion was equal, if not superior, to any thing that had happened during the whole course of the war[14]." This evidence of Lord Clive proves, that the scheme was entirely military, and that the success was the success of arms. By the Treaty of Peace concluded at Paris in 1763, (Art. 11,) "the Crown of France renounced all pretensions to those territories," which thus devolved, by an indisputable right of conquest, to the Crown of England. The Company, indeed, in the same year obtained a grant of Masulipatam from the Subah of the Deccan, which they now set forth in their Petition to Parliament: but yet, their most strenuous advocates admit, that Masulipatam belongs to the Crown of England, by right of conquest over the French[15]. And the same argument, that proves a right of conquest to Masulipatam, proves also a similar right to the Northern Circars.

In 1765, however, the Company being desirous of acquiring the form of an Indian title to the Circars, against the Subah, who might reclaim them, negotiated for a grant of those provinces at Delhi, over the head of the Subah; which grant they obtained. But the pretensions of the Subah, who was close at hand, might disturb them in their attempts to occupy the provinces; they therefore thought it expedient, to temporize with the Subah, and to enter into a separate negotiation with him, to induce him to surrender them; and they agreed to hold the provinces of him also, under an engagement to supply him with a contingent aid of military force, when called upon; and moreover, to pay him annually a tribute in money. By thus confusing their titles (which, instead of confirming, mutually defeated each other), they fully demonstrated the inefficacy and impotency of the Mogul's grant, in the present fallen state of that Empire. But the Company could only engage themselves for military service, so far as they possessed the ability; and their ability, is limited by the extent of their military power; which, being a part of their sovereign power, must necessarily determine with their sovereign capacity: as will be shown in the next article. Whenever that capacity ceases, they will be unable to furnish a single soldier, because they will be unable to raise a single soldier for the defence of the provinces. In that event, the Crown must of necessity interfere, to maintain and defend the territories; and then, the original cause which led to the acquirement of the Circars, namely, the expulsion of the French by force of arms, and their exclusion by the influence of the same arms in the Treaty of 1763, will be the true ground on which to rest the question of right: a right in the Crown of England, which had existence, prior to the form of the Mogul's grant, and prior also to the expedient of the grant from the Subah. And here we must keep in mind, that all territories possessed by the Company in India, by whatever means they have been acquired, are necessarily incorporated into the British Empire, and become subject to its Imperial Crown; conformably to the resolution of the House of Commons, in the year 1773: "That all acquisitions made under the influence of a military force, or by treaty with foreign Princes, do of right belong to the State." And as the whole fabric of British India grew out of a principle of advancing the public welfare, and was not an edifice raised merely for the separate welfare of the Company, every private interest comprehended in that fabric is, by every acknowledged maxim of State, public right, and consistency, subordinate; and must be determined by the security of the public good.

2. A right to retain in perpetuity certain essential rights of sovereignty, after the present delegated sovereignty of the Company shall have reverted to the Crown.—Although this pretension is a contradiction in terms, yet the assertors of it entertained no doubts of its reality. They claimed for the Company, in their permanent capacity of a trading body corporate, a right "to appoint governors, to build and maintain forts, to muster forces by sea and land, to coin money, and to erect Courts of Judicature[16]," even after they shall have lost their power of administering the Government of India; and this claim is renewed for the Company at the present day[17]. There is in this pretension so radical an ignorance of the nature of sovereignty, that it is inconceivable how it could have been entertained by any one, who had ever given a thought to the subject of law or government. The powers here enumerated, are essential prerogatives of sovereignty; which may indeed be delegated for a time by authority of Parliament, but can never be granted in full property by the Crown. In order to appoint governors, it is first necessary to be invested with the power of government. The same power is manifestly necessary, in order to be able legally to raise or muster any force by sea or land, either for defence, or for any other military service. And it is acknowledged, that the power of government has never been granted to the East India Company, but with limitation. In the grants of Bombay and St. Helena, the Company is certainly empowered to erect forts, and to raise and employ forces; but by the same grants they are invested with the powers of Captain General in order to that end; virtually in the first, and expressly in the second. Will it be imagined, that they are to retain the authority of Captain General, after their powers of government shall cease? And if not, it must be evident, that their authority over forts, and all their military power, must determine, whenever their delegated power of Captain General shall determine. It would be an insult to any reader, who has ever cast his eye even on the elementary Commentaries of Sir William Blackstone, to insist upon a truth so obvious and simple. With regard to the erecting of Courts, no such power is given in any of the Charters produced in evidence. The Crown erects the Court, and the power granted to the Company is, and necessarily must be, limited and subordinate. The true cause of that extraordinary error, is plainly this: the Charters of King William and Queen Anne, upon which they rest these pretensions, conferred at one and the same time (as has been already observed), both their corporate capacity and their exclusive privilege. The assertors of those permanent sovereign rights, not discriminating, by the principles of things, between the several powers conferred in those Charters, have confused the provisions; and have construed all the powers above enumerated, which by their nature could only appertain to them as delegated Sovereigns, to belong to their capacity of an incorporated Company. And, under this illusion, they have imagined, that those powers are annexed to that perpetuity of their corporate body which was first enacted in 1730, and confirmed in the 33d year of the present reign; and that they do not constitute a part of those powers of government, which have been conferred upon them, from time to time, by their exclusive Charters. As this construction is entirely arbitrary on the part of the Company, and as it is unsupported by the principles either of law or sound reason, it will be best refuted by the authority of Parliament.

3. A right to exclude all British subjects from the Company's Indian ports, after their own exclusive privilege shall be expired.—This right has been claimed in the following words:—"Although their exclusive right to the trade, and their power of administering the government and revenues of India, were to be determined, they would still remain an incorporated Company in perpetuity, with the exclusive property and possession of Calcutta and Fort William, Madras and Fort St. George, Bombay, Bencoolen, and St. Helena, and various other estates and settlements in India. Whether, in the event of the sole trade being determined, individuals would be able to carry on a successful trade to India, if the Company were to debar them the use of their ports and factories, may require a serious consideration[18]."

This is a claim, not only to a practical exclusive trade, after the right to exclusive trade expressly granted by Parliament shall cease and determine, but involves also claims of perpetual sovereignty. It is incomprehensible, how it could be alleged by a writer who, in the preceding page, had pointedly excepted from their powers, that of converting the trade into "a mischievous monopoly[19];" for, what more mischievous form could monopoly, or an hostile sovereignty, assume, than that of excluding all British individuals from the chief ports and seats of trade in India? By this alleged right, the grants of Charters and the provisions of Parliament would be reduced to an absurdity. But as this is a claim of private right to cause a public wrong, it cannot fail particularly to engage the consideration of Parliament.

The rights alleged by the Company at the present day, are these:—