The Letters of Gracchus on the East India Question 10

The Letters of Gracchus on the East India Question 10

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consequence of which representation the clause was repealed, and the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:--

 

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