(I) SECRET COMMITTEE.
THE Secret Committee, created by Mr. Pitt’s Bill in the Court of Directors, is an instrument of government unlike any thing existing in any other country, or any thing to be found in the history of all past governments. A body of men in authority (the Court of Directors) acting under a delegated trust from their constituents, the East India Company) take an oath on their election to support the interests and rights of the Company. — These Directors are then bound by law to choose a Secret Committee from among themselves, which Secret Committee are to take an oath to be true to the trust reposed in them by the Directors; but to obey only such orders and directions as they shall receive from the Board of Controul, which orders and directions they swear also never to communicate to the Directors, who appoint them, without the consent of the said Board of Controul. — This Secret Committee have no power of originating or direcing any thing to be done of their own authority, still less, by suggestion or instruction from the Directors; all the Governments and Presidencies, however, in India, are bound to pay a faithful obedience to their orders and dispatches, and to answer the same upon the same terms of secrecy,
as if such Orders and Directions had been issued and transmitted by the Court of Directors of the said United Company.
If it were worth reasoning or arguing upon, it would be no difficult matter to prove that this crooked system of involved mystery and contradictory duties, could never have been meant for any fair purpose of good government. Facts, however, make reasoning on the subject unnecessary. The institution had scarcely taken place, with the addition of the , added in the Explanatory Act passed in 17••, before this Committee, appointed for the purpose of issuing the secret instructions of the Board of Controul, relating to matters of war and peace, are directed to manage, as a matter of secrecy, the settlement of an old debt due from the Nabob of Arcot to the Company.
Nothing could be more clearly out of the spirit and meaning of the Act of 1784, than this measure. The Board of Controul had already assumed an arbitrary power of settling the debts due from the Nabob to individuals, as matter connected with revenue. The Directors conceived they might at least have been permitted to settle their own debt, which was their property, and stated as part of their effects to Parliament; but this was discovered to be — matter connected with negociation. The Board of Controul had no power to issue their orders, through the Secret Committee, with respect to matters of revenue; but with respect to treaties with native Princes, they had: accordingly the settling a sufficient security for an old and public debt to the Company, due from a dependent on their Government, was converted into a negociation of state, deemed a matter of secresy, and withdrawn even from the knowledge of those who alone had any title to the debt. The Directors apply to their Counsel; and they are truly informed by Mr. Rous, that
the whole effect of the last Regulating Bill, in constituting the two Boards of Directors and of Commissioners, the one proposing measures, and the other, after representation, finally deciding, will be lost, as far as concerns the Government of Madras, if the intercourse with the Nabob shall be confined to the Secret Department; because this intercourse involves directly, the arrangements respecting the military force, and indirectly, every interest of that settlement.
The dispute comes before the Court of Proprietors, who resolve, on the 30th of June 1786, —
that the construction of the Act of the 24th of his present Majesty, under which the Right Honourable Board of Commissioners for the Affairs of India have claimed to exercise the powers in instances before the Court, is subversive of the authority of the Court of Directors, and the Chartered Rights of the Company, recognized and confirmed by the said Act; and tends to establish a Secret System of Government, highly dangerous to the interests of the Public and the Company.
It was farther resolved unanimously,
that this General Court do return thanks to the Court of Directors for the firmness with which they have maintained the rights of the Company, against the claims of the Right Honourable Board of Commisioners for the Affairs of India; and that the spirited Protest of Mr. Samuel Smith, merits the approbation of his constituents.
Upon this the Court of Directors resolve, that
it is expedient to apply to the Legislature for a further explanation, and more correct limitation of the powers of the Board of Controul.
At the same time, however, with a very natural caution, they think it prudent to ask Mr. Pitt’s permission to do so first. Accordingly the Chairman, and Deputy Chairman, are directed to wait on the Chancellor of the Exchequer, and propose the following question:
If the Court of Directors, with the authority of the General Court of Proprietors, shall think proper to apply to Parliament to explain the powers of the Board of Controul, with regard to the secret correspondence relative to the country powers of India, will you assist them in their application?
Here seems to have been a reasonable case made for a Declaratory Law, if (according to Mr. Scott,)
a material difference of opinion between the Company and the Board of Controul is a sufficient ground for one.
The Chancellor of the Exchequer however, after due deliberation, answers, that
he cannot agree in the sentiments expressed in the Resolution concerning the conduct of the Right Honourable Board of Commissioners for the Affairs of India, and does not see any ground for an application to Parliament on the subject.
In a Court of Proprietors, these proceedings being reported, it was moved,
that a Committee be appointed to take into consideration the state of this Company, under the operation and effect of the last act of the 24th and 26th of George III.
Upon this a ballot was demanded, in which (the refractory conduct of the Court of Directors and Proprietors having created a considerable alarm) a proper weight of influence was exerted, and the question passed in the negative.
Mr. Samuel Smith’s testimony on this occasion, as he has been a zealous friend to the present Administration in Parliament, must be admitted to be at least free from party prejudice. He says, in the Protest above alluded to, containing the reasons of his resignation,
It will be in vain to contend that the Patronage is secured to the Company by the Act of Parliament; if the Government is secret, it will be absurd to suppose that the Patronage will be open; or that those who have no voice in the measure will have much concern, if any, in the appointments; if they have not, to what evils, so often foreboded as dangerous to this Constitution, will not this mysterious government of India expose us? And if this is to be contended as a necessary mode of managing and controuling the Affairs of India, it will, in my opinion, give rise to a question, whether, under such circumstances of danger, to the Constitution, our Indian possessions are worth retaining?
A public situation, reduced to the mere mechanism of official obedience, can afford but little credit, even by the most rigid discharge of its functions. Circumscribed as the power of the Court now is, and by the interpretation given to the clause to which I allude, incapable of acting either with energy or effect, it must ere long yield an easy surrender of its remaining rights to the encroachments and vigilance of a more active controul. Thus circumstanced, the office of a Director may be the object of obloquy; and, though liable to a serious responsibility in the case of misconduct in others, is too subordinate to continue the post either of independence or honour.
It is therefore my intention to resign my trust to the Proprietors, conscious that while I held it I endeavoured to discharge it to the best of my abilities, and with an integrity unimpeached.
(Signed) SAMUEL SMITH, JUNR.
India-House, June 13th, 1786.
In fact, this transaction established the power of the Board of Controul to act thro’ the Secret Committee, UPON ALL MATTERS, and IN ANY MANNER they may think proper, without a possibility of check, and with scarce a probability of detection.
(K)
Agree upon its Meaning.] THE Declaratory La
w was defended by many, upon the ground of its declaring no more power to be in the Board of Controul than it was fit and reasonable to give them; and that to suppose that the Original Act had given them less, was to admit that Parliament had enacted an absurd and inconsistent law. This argument, altho’ a popular one, and sanctioned — altho’ a popular one — by LORD HAWKESBURY, is an intolerably bad argument when applied to Parliament, acting in a great measure in their judicial capacity: It is to set up their pride against their justice; and to pique them to commit an act of violence, rather than confess an act of folly. Other Members, however, in both Houses of Parliament professed that they supported the Declaratory Law, as a true construction of Mr. Pitt’s Bill, from a recollection of their own meaning at the time they voted for it. Yet few of these Members agreed with each other, as to the powers they conceived they had given to the Board of Controul. LORD CAMDEN having been out of the kingdom when the Act of 1784 passed, professed to have nothing to say to the intentions of the Legislature in passing the Act, but to have formed his opinion upon
the plain and obvious meaning of the clauses taken collectively.
The learned Lord was obliged, however, to admit, that there were many words omitted which were necessary to make out his instruction, and many others inserted which directly contradicted it; but this he presumed to have happened through inadvertency; and therefore a whole clause coming under the latter description —
nil operatur.
A new and most extraordinary mode, the most unlearned man may venture to assert, of interpreting laws affecting the rights and property of the subject!
But the pleasantest ground was taken by the DUKE of RICHMOND. The noble Duke declared he had voted against Mr. Pitt’s Bill, because he differed at the time from those who had introduced it with respect to its meaning. He thinking that it did actually give those powers to the Board of Controul, which they asserted were not meant to be given. It now therefore appearing that they had come over to his opinion, consistency demanded from him to give vigour and efficacy to a law — which justice and policy had convinced him ought never to have existed.
It would certainly be a difficult task to argue on the intentions of different Members at the time the Act of 1784 passed, and a very unfair way of arguing with respect to any but those who publicly gave their enterpretation of the Bill, during its progress. Mr. BASTARD’S quotations from the Minister’s former speeches seem to have been generally admitted to have contained a true exposition of the Minister’s former meaning; but there is one decisive test easily recurred to, which was very ably argued upon by Mr. POWIS; namely, to compare the Bill in the state in which it was first brought into the House by Mr. Pitt, with that to which he altered it, after a discussion with the Directors, in the Committee. Here it will decisively appear that many of these very powers which are now contended to be given to the Board of Controul, by construction and implication, were directly and plainly given in the Bill as it stood on its first reading, and were afterwards withdrawn or modified upon conference and explanation with these who objected to them, as intrenching on right which they had not consented to yield. — This evidence is conclusive.
“Explain the original Act— “] THERE is no instance, perhaps, wherein the extraordinary spirit in which Mr. Pitt’s Bill is worded, appears more plainly than in its bold and irregular manner of repealing matters supposed to be inconsistent with the new enactments.
In all the former Acts we find a regard to perspicuity and fair dealing, expressed as in the Act of 21st of the present King.
And be it further enacted by the authority aforesaid, that all and every the rights, interests, powers, privileges, and authorities, which are now vested in the said United Company of Merchants of England trading to the East Indies, and which are NOT hereby EXPRESSLY TAKEN AWAY, altered, or varied, shall remain to, and continue in the said Company, in as full and ample a manner, to all intents and purposes whatsoever, as if this Act had never been made.
This is the language of laws that mean to be intelligible, and to do justice,
Mr. Pitt’s Bill settles the point in a different manner: —
And be it further enacted, that all such powers and authorities given to, or vested in the Proprietors and Directors of the said United Company, or in any General or Special Court thereof respectively, in, and by any Act of Parliament or Charter, as are contrary or REPUGNANT to THIS ACT, or ANY THING HEREIN CONTAINED, shall be, and the same are hereby REPEALED; any thing contained in any Act or Charter, or any custom or usage to the contrary notwithstanding.
Whether under this loose and arrogant mandate, so unlike the temperate precision of a British law upon such a subject, there is any one right, power, or property of any sort, left to the Company, may reasonably be doubted; indeed since the construction given to “THIS ACT,” by the Declaratory Law, it is difficult to imagine any power ever exercised by them, which might not be proved in a court of justice to be repugnant to something contained in Mr. Pitt’s Bill.
(L)
“Mr. Pitt’s Bill a perpetual law — ] IT was proposed, both in the House of Lords and in the House of Commons, to limit the duration of the powers of the Board of Controul to the term for which the Company held their charter of exclusive trade. It is scarcely to be conceived, that if this question were to be fairly argued upon its own ground, when Ministers should be graciously disposed to allow a little time for its discussion, that either Mr. PITT or Lord HAWKESBURY could easily prevail on either House of Parliament to reject it; because such a conduct would be, in fact, to induce the legislature deliberately to violate a solemn compact made between Parliament and a body of merchants, not with respect to their charter of power and monopoly, which being a trust, as all power is, might be resumed upon abuse; but with respect to estates, rights and property, which no mismanagement could forfeit, and for which a valuable consideration had been paid to the public.
By the Act of the 21st of his present Majesty, the Company’s charter of exclusive trade will expire in 1794, upon previous notice from Parliament. — The 4th and 6th clauses of this Act repeat the reservation in favour of the rights and privileges of the Company, independently of their right to the exclusive trade, and stating the consideration paid
for the service of the Crown of England, entitling them to these advantages,
conclude in these words: —
Provided always, and it is hereby further enacted, that nothing in the above proviso, or in any proviso in the said Act of the ninth year of the reign of his said late Majesty King William the Third, or in the said charter of the fifth day of September, in the tenth year of his said late Majesty’s reign, or in any other act or charter contained, shall extend, or be construed to extend, to determine the Corporation of the said United Company of Merchants of England trading to the East Indies; or to hinder, prevent, or exclude the said United Company from carrying on AT ALL TIMES after such determination of the right to the sole, whole, and exclusive trade, as aforesaid, a FREE TRADE in, to, and from the East Indies, and parts aforesaid, with all, or any part of their own joint stock in trade, goods merchandizes, estate, and effects, IN COMMON with OTHER THE SUBJECTS OF HIS MAJESTY, his heirs and successors, trading, in, to, or from those parts.
After this, to enact a law to place them in their corporate capacity as merchants united to trade
upon their own joint stock and estate,
(without any exclusive right or protection from Government whatever,) under the perpetual controul of certain Commissioners named by the Crown, to whom they are bound
to communicate all their transactions,
and without whose signature they can issue no one commercial order, is surely a most flagrant and wanton violation of private property, as well as public faith, and indeed of every right that law or charter can be supposed to secure to any one.
With respect to the Company’s claim on the territorial revenues, the breach of faith is the same. — The Company paid the public a certain sum upon the las
t settlement on this subject, and it was enacted,
that all the territorial acquisitions and revenues lately obtained in the East Indies shall remain in the possession of the United Company of Merchants of England trading to the East Indies, for, and during the term of the exclusive trade granted to the said United Company.
It was stipulated, however, that beside the sum paid a further proportion of the surplus profits of these revenues should be
set apart, and applied for the use of the public,
with this reserve,
so long as the Company shall be entitled to the sole and exclusive trade.
— 21st George III.
Upon these terms the question of right between the public and the Company was suspended until the expiration of the charter of monopoly. And the saving clause which had been inserted in all former Acts relating to this point was repeated. Clause 83.
Provided always, and be it enacted, that nothing herein contained shall extend, or be construed to extend, to prejudice or affect the rights, or the claims of the public, or the said United Company, respecting the said territorial acquisitions and revenues.
The right of the Company under this compact is — not to the property of the revenues certainly, but to a decision upon the subject on the expiration of their charter of exclusive trade, or to be placed in the same situation with respect to their claim in which they stood when they made their bargain. In lieu of this, a new Claimant is created by Parliament, being neither the public nor the Company, to whom the law gives the perpetual disposal of these revenues so claimed by the public on one part, and the Company on the other. For it is to be remembered, (granting the Board of Controul to be acting for the Crown) that the King is not the representative of the Public, with respect to their property and purse; but that on the contrary the Constitution regards with jealousy, and places no trust in the Crown upon that head; so that the Public would be defrauded, although the revenues were to come under the disposal of the King. But even that is not the case; for the Board of Controul can appropriate them without the direction of the Crown, as well as without the direction of the Company, or of Parliament. Parliament therefore breaks its faith to the Company, without doing justice to the Public; and the title and claims of both are extinguished, not in favour of the Crown, but in favour of a FOURTH ESTATE, which acquires the strange and anomalous right either of disposing of the PROPERTY OF INDIVIDUALS, against their consent, or of applying the PROPERTY OF THE STATE without the sanction of Parliament.
Delphi Complete Works of Richard Brinsley Sheridan Page 70
