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The Works of the Right Honourable Edmund Burke, Vol. 02 (of 12)

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From time to time, therefore, Parliament provided for their government according to its discretion, and to its opinion of what was required by the public necessities. We do not know that his Majesty was entitled, by prerogative, to exercise any act of authority whatsoever in the Company's affairs, or that, in effect, such authority has ever been exercised. His Majesty's patronage was not taken away by that bill; because it is notorious that his Majesty never originally had the appointment of a single officer, civil or military, in the Company's establishment in India: nor has the least degree of patronage ever been acquired to the crown in any other manner or measure than as the power was thought expedient to be granted by act of Parliament,—that is, by the very same authority by which the offices were disposed of and regulated in the bill which his Majesty's servants have falsely and injuriously represented as infringing upon the prerogative of the crown.

Before the year 1773 the whole administration of India, and the whole patronage to office there, was in the hands of the East India Company. The East India Company is not a branch of his Majesty's prerogative administration, nor does that body exercise any species of authority under it, nor indeed from any British title that does not derive all its legal validity from acts of Parliament.

When a claim was asserted to the India territorial possessions in the occupation of the Company, these possessions were not claimed as parcel of his Majesty's patrimonial estate, or as a fruit of the ancient inheritance of his crown: they were claimed for the public. And when agreements were made with the East India Company concerning any composition for the holding, or any participation of the profits, of those territories, the agreement was made with the public; and the preambles of the several acts have uniformly so stated it. These agreements were not made (even nominally) with his Majesty, but with Parliament: and the bills making and establishing such agreements always originated in this House; which appropriated the money to await the disposition of Parliament, without the ceremony of previous consent from the crown even so much as suggested by any of his ministers: which previous consent is an observance of decorum, not indeed of strict right, but generally paid, when a new appropriation takes place in any part of his Majesty's prerogative revenues.

In pursuance of a right thus uniformly recognized and uniformly acted on, when Parliament undertook the reformation of the East India Company in 1773, a commission was appointed, as the commission in the late bill was appointed; and it was made to continue for a term of years, as the commission in the late bill was to continue; all the commissioners were named in Parliament, as in the late bill they were named. As they received, so they held their offices, wholly independent of the crown; they held them for a fixed term; they were not removable by an address of either House or even of both Houses of Parliament, a precaution observed in the late bill relative to the commissioners proposed therein; nor were they bound by the strict rules of proceeding which regulated and restrained the late commissioners against all possible abuse of a power which could not fail of being diligently and zealously watched by the ministers of the crown, and the proprietors of the stock, as well as by Parliament. Their proceedings were, in that bill, directed to be of such a nature as easily to subject them to the strictest revision of both, in case of any malversation.

In the year 1780, an act of Parliament again made provision for the government of those territories for another four years, without any sort of reference to prerogative; nor was the least objection taken at the second, more than at the first of those periods, as if an infringement had been made upon the rights of the crown: yet his Majesty's ministers have thought fit to represent the late commission as an entire innovation on the Constitution, and the setting up a new order and estate in the nation, tending to the subversion of the monarchy itself.

If the government of the East Indies, other than by his Majesty's prerogative, be in effect a fourth order in the commonwealth, this order has long existed; because the East India Company has for many years enjoyed it in the fullest extent, and does at this day enjoy the whole administration of those provinces, and the patronage to offices throughout that great empire, except as it is controlled by act of Parliament.

It was the ill condition and ill administration of the Company's affairs which induced this House (merely as a temporary establishment) to vest the same powers which the Company did before possess, (and no other,) for a limited time, and under very strict directions, in proper hands, until they could be restored, or farther provision made concerning them. It was therefore no creation whatever of a new power, but the removal of an old power, long since created, and then existing, from the management of those persons who had manifestly and dangerously abused their trust. This House, which well knows the Parliamentary origin of all the Company's powers and privileges, and is not ignorant or negligent of the authority which may vest those powers and privileges in others, if justice and the public safety so require, is conscious to itself that it no more creates a new order in the state, by making occasional trustees for the direction of the Company, than it originally did in giving a much more permanent trust to the Directors or to the General Court of that body. The monopoly of the East India Company was a derogation from the general freedom of trade belonging to his Majesty's people. The powers of government, and of peace and war, are parts of prerogative of the highest order. Of our competence to restrain the rights of all his subjects by act of Parliament, and to vest those high and eminent prerogatives even in a particular company of merchants, there has been no question. We beg leave most humbly to claim as our right, and as a right which this House has always used, to frame such bills for the regulation of that commerce, and of the territories held by the East India Company, and everything relating to them, as to our discretion shall seem fit; and we assert and maintain that therein we follow, and do not innovate on, the Constitution.

That his Majesty's ministers, misled by their ambition, have endeavored, if possible, to form a faction in the country against the popular part of the Constitution; and have therefore thought proper to add to their slanderous accusation against a House of Parliament, relative to his Majesty's prerogative, another of a different nature, calculated for the purpose of raising fears and jealousies among the corporate bodies of the kingdom, and of persuading uninformed persons belonging to those corporations to look to and to make addresses to them, as protectors of their rights, under their several charters, from the designs which they, without any ground, charged the then House of Commons to have formed against charters in general. For this purpose they have not scrupled to assert that the exertion of his Majesty's prerogative in the late precipitate change in his administration, and the dissolution of the late Parliament, were measures adopted in order to rescue the people and their rights out of the hands of the House of Commons, their representatives.

We trust that his Majesty's subjects are not yet so far deluded as to believe that the charters, or that any other of their local or general privileges, can have a solid security in any place but where that security has always been looked for, and always found,—in the House of Commons. Miserable and precarious indeed would be the state of their franchises, if they were to find no defence but from that quarter from whence they have always been attacked! 66 But the late House of Commons, in passing that bill, made no attack upon any powers or privileges, except such as a House of Commons has frequently attacked, and will attack, (and they trust, in the end, with their wonted success,)—that is, upon those which are corruptly and oppressively administered; and this House do faithfully assure his Majesty, that we will correct, and, if necessary for the purpose, as far as in us lies, will wholly destroy, every species of power and authority exercised by British subjects to the oppression, wrong, and detriment of the people, and to the impoverishment and desolation of the countries subject to it.

 

The propagators of the calumnies against that House of Parliament have been indefatigable in exaggerating the supposed injury done to the East India Company by the suspension of the authorities which they have in every instance abused,—as if power had been wrested by wrong and violence from just and prudent hands; but they have, with equal care, concealed the weighty grounds and reasons on which that House had adopted the most moderate of all possible expedients for rescuing the natives of India from oppression, and for saving the interests of the real and honest proprietors of their stock, as well as that great national, commercial concern, from imminent ruin.

The ministers aforesaid have also caused it to be reported that the House of Commons have confiscated the property of the East India Company. It is the reverse of truth. The whole management was a trust for the proprietors, under their own inspection, (and it was so provided for in the bill,) and under the inspection of Parliament. That bill, so far from confiscating the Company's property, was the only one which, for several years past, did not, in some shape or other, affect their property, or restrain them in the disposition of it.

It is proper that his Majesty and all his people should be informed that the House of Commons have proceeded, with regard to the East India Company, with a degree of care, circumspection, and deliberation, which has not been equalled in the history of Parliamentary proceedings. For sixteen years the state and condition of that body has never been wholly out of their view. In the year 1767 the House took those objects into consideration, in a committee of the whole House. The business was pursued in the following year. In the year 1772 two committees were appointed for the same purpose, which examined into their affairs with much diligence, and made very ample reports. In the year 1773 the proceedings were carried to an act of Parliament, which proved ineffectual to its purpose. The oppressions and abuses in India have since rather increased than diminished, on account of the greatness of the temptations, and convenience of the opportunities, which got the better of the legislative provisions calculated against ill practices then in their beginnings; insomuch that, in 1781, two committees were again instituted, who have made seventeen reports. It was upon the most minute, exact, and laborious collection and discussion of facts, that the late House of Commons proceeded in the reform which they attempted in the administration of India, but which has been frustrated by ways and means the most dishonorable to his Majesty's government, and the most pernicious to the Constitution of this kingdom. His Majesty was so sensible of the disorders in the Company's administration, that the consideration of that subject was no less than six times recommended to this House in speeches from the throne.

The result of the Parliamentary inquiries has been, that the East India Company was found totally corrupted, and totally perverted from the purposes of its institution, whether political or commercial; that the powers of war and peace given by the charter had been abused, by kindling hostilities in every quarter for the purposes of rapine; that almost all the treaties of peace they have made have only given cause to so many breaches of public faith; that countries once the most flourishing are reduced to a state of indigence, decay, and depopulation, to the diminution of our strength, and to the infinite dishonor of our national character; that the laws of this kingdom are notoriously, and almost in every instance, despised; that the servants of the Company, by the purchase of qualifications to vote in the General Court, and, at length, by getting the Company itself deeply in their debt, have obtained the entire and absolute mastery in the body by which they ought to have been ruled and coerced. Thus their malversations in office are supported, instead of being checked by the Company. The whole of the affairs of that body are reduced to a most perilous situation; and many millions of innocent and deserving men, who are under the protection of this nation, and who ought to be protected by it, are oppressed by a most despotic and rapacious tyranny. The Company and their servants, having strengthened themselves by this confederacy, set at defiance the authority and admonitions of this House employed to reform them; and when this House had selected certain principal delinquents, whom they declared it the duty of the Company to recall, the Company held out its legal privileges against all reformation, positively refused to recall them, and supported those who had fallen under the just censure of this House with new and stronger marks of countenance and approbation.

The late House, discovering the reversed situation of the Company, by which the nominal servants are really the masters, and the offenders are become their own judges, thought fit to examine into the state of their commerce; and they have also discovered that their commercial affairs are in the greatest disorder; that their debts have accumulated beyond any present or obvious future means of payment, at least under the actual administration of their affairs; that this condition of the East India Company has begun to affect the sinking fund itself, on which the public credit of the kingdom rests,—a million and upwards being due to the customs, which that House of Commons whose intentions towards the Company have been so grossly misrepresented were indulgent enough to respite. And thus, instead of confiscating their property, the Company received without interest (which in such a case had been before charged) the use of a very large sum of the public money. The revenues are under the peculiar care of this House, not only as the revenues originate from us, but as, on every failure if the funds set apart for the support of the national credit, or to provide for the national strength and safety, the task of supplying every deficiency falls upon his Majesty's faithful Commons, this House must, in effect, tax the people. The House, therefore, at every moment, incurs the hazard of becoming obnoxious to its constituents.

The enemies of the late House of Commons resolved, if possible, to bring on that event. They therefore endeavored to misrepresent the provident means adopted by the House of Commons for keeping off this invidious necessity, as an attack on the rights of the East India Company: for they well knew, that, on the one hand, if, for want of proper regulation and relief, the Company should become insolvent, or even stop payment, the national credit and commerce would sustain a heavy blow; and that calamity would be justly imputed to Parliament, which, after such long inquiries, and such frequent admonitions from his Majesty, had neglected so essential and so urgent an article of their duty: on the other hand, they knew, that, wholly corrupted as the Company is, nothing effectual could be done to preserve that interest from ruin, without taking for a time the national objects of their trust out of their hands; and then a cry would be industriously raised against the House of Commons, as depriving British subjects of their legal privileges. The restraint, being plain and simple, must be easily understood by those who would be brought with great difficulty to comprehend the intricate detail of matters of fact which rendered this suspension of the administration of India absolutely necessary on motives of justice, of policy, of public honor, and public safety.

 

The House of Commons had not been able to devise a method by which the redress of grievances could be effected through the authors of those grievances; nor could they imagine how corruptions could be purified by the corrupters and the corrupted; nor do we now conceive how any reformation can proceed from the known abettors and supporters of the persons who have been guilty of the misdemeanors which Parliament has reprobated, and who for their own ill purposes have given countenance to a false and delusive state of the Company's affairs, fabricated to mislead Parliament and to impose upon the nation.67

Your Commons feel, with a just resentment, the inadequate estimate which your ministers have formed of the importance of this great concern. They call on us to act upon the principles of those who have not inquired into the subject, and to condemn those who with the most laudable diligence have examined and scrutinized every part of it. The deliberations of Parliament have been broken; the season of the year is unfavorable; many of us are new members, who must be wholly unacquainted with the subject, which lies remote from the ordinary course of general information.

We are cautioned against an infringement of the Constitution; and it is impossible to know what the secret advisers of the crown, who have driven out the late ministers for their conduct in Parliament, and have dissolved the late Parliament for a pretended attack upon prerogative, will consider as such an infringement. We are not furnished with a rule, the observance of which can make us safe from the resentment of the crown, even by an implicit obedience to the dictates of the ministers who have advised that speech; we know not how soon those ministers may be disavowed, and how soon the members of this House, for our very agreement with them, may be considered as objects of his Majesty's displeasure. Until by his Majesty's goodness and wisdom the late example is completely done away, we are not free.

We are well aware, in providing for the affairs of the East, with what an adult strength of abuse, and of wealth and influence growing out of that abuse, his Majesty's Commons had, in the last Parliament, and still have, to struggle. We are sensible that the influence of that wealth, in a much larger degree and measure than at any former period, may have penetrated into the very quarter from whence alone any real reformation can be expected.68

If, therefore, in the arduous affairs recommended to us, our proceedings should be ill adapted, feeble, and ineffectual,—if no delinquency should be prevented, and no delinquent should be called to account,—if every person should be caressed, promoted, and raised in power, in proportion to the enormity of his offences,—if no relief should be given to any of the natives unjustly dispossessed of their rights, jurisdictions, and properties,—if no cruel and unjust exactions should be forborne,—if the source of no peculation or oppressive gain should be cut off,—if, by the omission of the opportunities that were in our hands, our Indian empire should fall into ruin irretrievable, and in its fall crush the credit and overwhelm the revenues of this country,—we stand acquitted to our honor and to our conscience, who have reluctantly seen the weightiest interests of our country, at times the most critical to its dignity and safety, rendered the sport of the inconsiderate and unmeasured ambition of individuals, and by that means the wisdom of his Majesty's government degraded in the public estimation, and the policy and character of this renowned nation rendered contemptible in the eyes of all Europe.

It passed in the negative.

END OF VOL. II
66. The attempt upon charters and the privileges of the corporate bodies of the kingdom in the reigns of Charles the Second and James the Second was made by the crown. It was carried on by the ordinary course of law, in courts instituted for the security of the property and franchises of the people. This attempt made by the crown was attended with complete success. The corporate rights of the city of London, and of all the companies it contains, were by solemn judgment of law declared forfeited, and all their franchises, privileges, properties, and estates were of course seized into the hands of the crown. The injury was from the crown: the redress was by Parliament. A bill was brought into the House of Commons, by which the judgment against the city of London, and against the companies, was reversed: and this bill passed the House of Lords without any complaint of trespass on their jurisdiction, although the bill was for a reversal of a judgment in law. By this act, which is in the second of William and Mary, chap. 8, the question of forfeiture of that charter is forever taken out of the power of any court of law: no cognizance can be taken of it except in Parliament. Although the act above mentioned has declared the judgment against the corporation of London to be illegal yet Blackstone makes no scruple of asserting, that, "perhaps, in strictness of law, the proceedings in most of them [the Quo Warranto causes] were sufficiently regular," leaving it in doubt, whether this regularity did not apply to the corporation of London, as well as to any of the rest; and he seems to blame the proceeding (as most blamable it was) not so much on account of illegality as for the crown's having employed a legal proceeding for political purposes. He calls it "an exertion of an act of law for the purposes of the state." The same security which was given to the city of London, would have been extended to all the corporations, if the House of Commons could have prevailed. But the bill for that purpose passed but by a majority of one in the Lords; and it was entirely lost by a prorogation, which is the act of the crown. Small, indeed, was the security which the corporation of London enjoyed before the act of William and Mary, and which all the other corporations, secured by no statute, enjoy at this hour, if strict law was employed against them. The use of strict law has always been rendered very delicate by the same means by which the almost unmeasured legal powers residing (and in many instances dangerously residing) in the crown are kept within due bounds: I mean, that strong superintending power in the House of Commons which inconsiderate people have been prevailed on to condemn as trenching on prerogative. Strict law is by no means such a friend to the rights of the subject as they have been taught to believe. They who have been most conversant in this kind of learning will be most sensible of the danger of submitting corporate rights of high political importance to these subordinate tribunals. The general heads of law on that subject are vulgar and trivial. On them there is not much question. But it is far from easy to determine what special acts, or what special neglect of action, shall subject corporations to a forfeiture. There is so much laxity in this doctrine, that great room is left for favor or prejudice, which might give to the crown an entire dominion over those corporations. On the other hand, it is undoubtedly true that every subordinate corporate right ought to be subject to control, to superior direction, and even to forfeiture upon just cause. In this reason and law agree. In every judgment given on a corporate right of great political importance, the policy and prudence make no small part of the question. To these considerations a court of law is not competent; and, indeed, an attempt at the least intermixture of such ideas with the matter of law could have no other effect than wholly to corrupt the judicial character of the court in which such a cause should come to be tried. It is besides to be remarked, that, if, in virtue of a legal process, a forfeiture should be adjudged, the court of law has no power to modify or mitigate. The whole franchise is annihilated, and the corporate property goes into the hands of the crown. They who hold the new doctrines concerning the power of the House of Commons ought well to consider in such a case by what means the corporate rights could be revived, or the property could be recovered out of the hands of the crown. But Parliament can do what the courts neither can do nor ought to attempt. Parliament is competent to give due weight to all political considerations. It may modify, it may mitigate, and it may render perfectly secure, all that it does not think fit to take away. It is not likely that Parliament will ever draw to itself the cognizance of questions concerning ordinary corporations, farther than to protect them, in case attempts are made to induce a forfeiture of their franchises. The case of the East India Company is different even from that of the greatest of these corporations. No monopoly of trade, beyond their own limits, is vested in the corporate body of any town or city in the kingdom. Even within these limits the monopoly is not general. The Company has the monopoly of the trade of half the world. The first corporation of the kingdom has for the object of its jurisdiction only a few matters of subordinate police. The East India Company governs an empire, through all its concerns and all its departments, from the lowest office of economy to the highest councils of state,—an empire to which Great Britain is in comparison but a respectable province. To leave these concerns without superior cognizance would be madness; to leave them to be judged in the courts below, on the principles of a confined jurisprudence, would be folly. It is well, if the whole legislative power is competent to the correction of abuses which are commensurate to the immensity of the object they affect. The idea of an absolute power has, indeed, its terrors; but that objection lies to every Parliamentary proceeding; and as no other can regulate the abuses of such a charter, it is fittest that sovereign authority should be exercised, where it is most likely to be attended with the most effectual correctives. These correctives are furnished by the nature and course of Parliamentary proceedings, and by the infinitely diversified characters who compose the two Houses. In effect and virtually, they form a vast number, variety, and succession of judges and jurors. The fulness, the freedom, and publicity of discussion leaves it easy to distinguish what are acts of power, and what the determinations of equity and reason. There prejudice corrects prejudice, and the different asperities of party zeal mitigate and neutralize each other. So far from violence being the general characteristic of the proceedings of Parliament, whatever the beginnings of any Parliamentary process may be, its general fault in the end is, that it is found incomplete and ineffectual.
67. The purpose of the misrepresentation being now completely answered, there is no doubt but the committee in this Parliament, appointed by the ministers themselves, will justify the grounds upon which the last Parliament proceeded, and will lay open to the world the dreadful state of the Company's affairs, and the grossness of their own calumnies upon this head. By delay the new assembly is come into the disgraceful situation of allowing a dividend of eight per cent by act of Parliament, without the least matter before them to justify the granting of any dividend at all.
68. This will be evident to those who consider the number and description of Directors and servants of the East India Company chosen into the present Parliament. The light in which the present ministers hold the labors of the House of Commons in searching into the disorders in the Indian administration, and all its endeavors for the reformation of the government there, without any distinction of times, or of the persons concerned, will appear from the following extract from a speech of the present Lord Chancellor. After making a high-flown panegyric on those whom the House of Commons had condemned by their resolutions, he said:—"Let us not be misled by reports from committees of another House, to which, I again repeat, I pay as much attention as I would do to the history of Robinson Crusoe, Let the conduct of the East India Company be fairly and fully inquired into. Let it be acquitted or condemned by evidence brought to the bar of the House. Without entering very deeply into the subject, let me reply in a few words to an observation which fell from a noble and learned lord, that the Company's finances are distressed, and that they owe at this moment a million sterling to the nation. When such a charge is brought, will Parliament in its justice forget that the Company is restricted from employing that credit which its great and flourishing situation gives to it?"