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

It passed in the negative.

END OF VOL. II

1

Charles Wolfran Cornwall, Esq., lately appointed one of the Lords of the Treasury.

2

Lord North, then Chancellor of the Exchequer.

3

Lord Hillsborough's Circular Letter to the Governors of the Colonies, concerning the repeal of some of the duties laid in the Act of 1767.

4

A material point is omitted by Mr. Burke in this speech, viz. the manner in which the continent received this royal assurance. The assembly of Virginia, in their address in answer to Lord Botetourt's speech, express themselves thus:—"We will not suffer our present hopes, arising from the pleasing prospect your Lordship hath so kindly opened and displayed to us, to be lashed by the bitter reflection that any future administration will entertain a wish to depart from that plan which affords the surest and most permanent foundation of public tranquillity and happiness. No, my Lord, we are sure our most gracious sovereign, under whatever changes may happen in his confidential servants, will remain immutable in the ways of truth and justice, and that he is incapable of deceiving his faithful subjects; and we esteem your Lordship's information not only as warranted, but even sanctified by the royal word."

5

Lord North.

6

Mr. Dowdeswell.

7

General Conway.

8

General Conway.

9

General Conway.

10

General Conway.

11

Supposed to allude to the Right Honorable Lord North, and George Cooke, Esq., who were made joint paymasters in the summer of 1766, on the removal of the Rockingham administration.

12

Resolutions in May, 1770.

13

Mr. Fuller.

14

Lord Carmarthen.

15

Lord North.

16

Mr. Dowdeswell

17

Mr. Brickdale opened his poll, it seems, with a tally of those very kind of freemen, and voted many hundreds of them.

18

The act to restrain the trade and commerce of the provinces of Massachusetts Bay and New Hampshire, and colonies of Connecticut and Rhode Island and Providence Plantation, in North America, to Great Britain, Ireland, and the British Islands in the West Indies; and to prohibit such provinces and colonies from carrying on any fishery on the banks of Newfoundland, and other places therein mentioned, under certain conditions and limitations.

19

Mr. Rose Fuller.

20

"That when the governor, council, and assembly, or general court, of any of his Majesty's provinces or colonies in America shall propose to make provision, according to the condition, circumstances, and situation of such province or colony, for contributing their proportion to the common defence, (such proportion to be raised under the authority of the general court or general assembly of such province or colony, and disposable by Parliament,) and shall engage to make provision, also for the support of the civil government and the administration, of justice in such province or colony, it will be proper, if such proposal shall be approved by his Majesty and the two Houses of Parliament, and for so long as such provision shall be made accordingly, to forbear, in respect of such province or colony, to levy any duty, tax, or assessment, or to impose any farther duty, tax, or assessment, except only such duties as it may be expedient to continue to levy or to impose for the regulation of commerce: the net produce of the duties last mentioned to be carried to the account of such province or colony respectively."—Resolution moved by Lord North in the Committee, and agreed to by the House, 27th February, 1775.

21

Mr. Glover.

22

The Attorney-General.

23

Mr. Rice.

24

Lord North.

25

Journals of the House, Vol. XXV.

26

Journals of the House, Vol. XXVII.

27

Ibid.

28

The Solicitor-General informed Mr. B., when the resolutions were separately moved, that the grievance of the judges partaking of the profits of the seizure had been redressed by office; accordingly the resolution was amended.

29

Lord North.

30

The first four motions and the last had the previous question put on them. The others were negatived.

The words in Italics were, by an amendment that was carried, left out of the motion; which will appear in the journals, though it is not the practice to insert such amendments in the votes.

31

This term comprehends various retributions made to persons whose offices are taken away, or who in any other way suffer by the new arrangements that are made.

32

Edict registered 29th January, 1780.

33

Thomas Gilbert, Esq., member for Lichfield.

34

Here Lord North shook his head, and told those who sat near him that Mr. Probert's pension was to depend on his success. It may be so. Mr. Probert's pension was, however, no essential part of the question; nor did Mr. B. care whether he still possessed it or not. His point was, to show the ridicule of attempting an improvement of the Welsh revenue under its present establishment.

35

Case of Richard Lee, Esq., appellant, against George Venables Lord Vernon, respondent, in the year 1775.

36

Vide Lord Talbot's speech in Almon's Parliamentary Register. Vol VII. p. 79, of the Proceedings of the Lords.

37

More exactly, 378,616l. 10 s. 1¾ d.

38

Et quaunt viscount ou baillif eit comence de acompter, nul autre ne seit resceu de aconter tanque le primer qe soit assis eit peraccompte, et qe la somme soit resceu.—Stat. 5. Ann Dom. 1266.

39

Summum jus summa injuria.

40

It was supposed by the Lord Advocate, in a subsequent debate, that Mr. Burke, because he objected to an inquiry into the pension list for the purpose of economy and relief of the public, would have it withheld from the judgment of Parliament for all purposes whatsoever. This learned gentleman certainly misunderstood him. His plan shows that he wished the whole list to be easily accessible; and he knows that the public eye is of itself a great guard against abuse.

41

Before the statute of Queen Anne, which limited the alienation of land.

42

Duke of Newcastle, whose dining-room is under the House of Commons.

43

Letters between Dr. Addington and Sir James Wright.

44

Titles of the bills read.

45

W. Dowdeswell, Esq., Chancellor of the Exchequer, 1765.

46

Rejection of Lord Shelburne's motion in the House of Lords.

47

The motion was seconded by Mr. Fox.

48

Irish Perpetual Mutiny Act.

49

Mr. Williams.

50

The Chancellor.

51

Mr. Coombe.

52

An allusion made by Mr. Powis.

53

Mr. Pitt.

54

Mr. Pitt.

55

Mr. Dundas, Lord Advocate of Scotland.

56

The paltry foundation at Calcutta is scarcely worth naming as an exception.

57

Mr. Fox.

58

Governor Johnstone.

59

See King's Speech, Dec. 5, 1782, and May 19, 1784.

60

"I shall never submit to the doctrines I have heard this day from the woolsack, that the other House [House of Commons] are the only representatives and guardians of the people's rights. I boldly maintain the contrary. I say this House [House of Lords] is equally the representatives of the people."—Lord Shelburne's Speech, April 8, 1778. Vide Parliamentary Register, Vol. X. p. 892.

61

In that Parliament the House of Commons by two several resolutions put an end to the American war. Immediately on the change of ministry which ensued, in order to secure their own independence, and to prevent the accumulation of new burdens on the people by the growth of a civil list debt, they passed the Establishment Bill. By that bill thirty-six offices tenable by members of Parliament were suppressed, and an order of payment was framed by which the growth of any fresh debt was rendered impracticable. The debt on the civil list from the beginning of the present reign had amounted to one million three hundred thousand pounds and upwards. Another act was passed for regulating the office of the Paymaster-General and the offices subordinate to it. A million of public money had sometimes been in the hands of the paymasters: this act prevented the possibility of any money whatsoever being accumulated in that office in future. The offices of the Exchequer, whose emoluments in time of war were excessive, and grew in exact proportion to the public burdens, were regulated,—some of them suppressed, and the rest reduced to fixed salaries. To secure the freedom of election against the crown, a bill was passed to disqualify all officers concerned in the collection of the revenue in any of its branches from voting in elections: a most important act, not only with regard to its primary object, the freedom of election, but as materially forwarding the due collection of revenue. For the same end, (the preserving the freedom of election,) the House rescinded the famous judgment relative to the Middlesex election, and expunged it from the journals. On the principle of reformation of their own House, connected with a principle of public economy, an act passed for rendering contractors with government incapable of a seat in Parliament. The India Bill (unfortunately lost in the House of Lords) pursued the same idea to its completion, and disabled all servants of the East India Company from a seat in that House for a certain time, and until their conduct was examined into and cleared. The remedy of infinite corruptions and of infinite disorders and oppressions, as well as the security of the most important objects of public economy, perished with that bill and that Parliament. That Parliament also instituted a committee to inquire into the collection of the revenue in all its branches, which prosecuted its duty with great vigor, and suggested several material improvements.

62

If these speculations are let loose, the House of Lords may quarrel with their share of the legislature, as being limited with regard to the origination of grants to the crown and the origination of money bills. The advisers of the crown may think proper to bring its negative into ordinary use,—and even to dispute, whether a mere negative, compared with the deliberative power exercised in the other Houses, be such a share in the legislature as to produce a due balance in favor of that branch, and thus justify the previous interference of the crown in the manner lately used. The following will serve to show how much foundation there is for great caution concerning these novel speculations. Lord Shelburne, in his celebrated speech, April 8th, 1778, expresses himself as follows. (Vide Parliamentary Register, Vol. X.)

"The noble and learned lord on the woolsack, in the debate which opened the business of this day, asserted that your Lordships were incompetent to make any alteration in a money bill or a bill of supply, I should be glad to see the matter fairly and fully discussed, and the subject brought forward and argued upon precedent, as well as all its collateral relations. I should be pleased to see the question fairly committed, were it for no other reason but to hear the sleek, smooth contractors from the other House come to this bar and declare, that they, and they only, could frame a money bill, and they, and they only, could dispose of the property of the peers of Great Britain. Perhaps some arguments more plausible than those I heard this day from the woolsack, to show that the Commons have an uncontrollable, unqualified right to bind your Lordships' property, may be urged by them. At present, I beg leave to differ from the noble and learned lord; for, until the claim, after a solemn discussion of this House, is openly and directly relinquished, I shall continue to be of opinion that your Lordships have a right to after, amend, or reject a money bill."

The Duke of Richmond also, in his letter to the volunteers of Ireland, speaks of several of the powers exercised by the House of Commons in the light of usurpations; and his Grace is of opinion, that, when the people are restored to what he conceives to be their rights, in electing the House of Commons, the other branches of the legislature ought to be restored to theirs.—Vide Remembrancer, Vol. XVI.

63

By an act of Parliament, the Directors of the East India Company are restrained from acceptance of bills drawn, from India, beyond a certain amount, without the consent of the Commissioners of the Treasury. The late House of Commons, finding bills to an immense amount drawn upon that body by their servants abroad, and knowing their circumstances to be exceedingly doubtful, came to a resolution providently, cautioning the Lords of the Treasury against the acceptance of these bills, until the House should otherwise direct. The Court Lords then took occasion to declare against the resolution as illegal, by the Commons undertaking to direct in the execution of a trust created by act of Parliament. The House, justly alarmed at this resolution, which went to the destruction of the whole of its superintending capacity, and particularly in matters relative to its own province of money, directed a committee to search the journals, and they found a regular series of precedents, commencing from the remotest of those records, and carried on to that day, by which it appeared that the House interfered, by an authoritative advice and admonition, upon every act of executive government without exception, and in many much stronger cases than that which the Lords thought proper to quarrel with.

64

"I observe, at the same time, that there is no charge or complaint suggested against my present ministers."—The King's Answer, 25th February, 1784, to the Address of the House of Common. Vide Resolutions of the House of Commons, printed for Debrett, p. 31.

65

The territorial possessions in the East Indies were acquired to the Company, in virtue of grants from the Great Mogul, in the nature of offices and jurisdictions, to be held under him, and dependent upon his crown, with the express condition of being obedient to orders from his court, and of paying an annual tribute to his treasury. It is true that no obedience is yielded to these orders, and for some time past there has been no payment made of this tribute. But it is under a grant so conditioned that they still hold. To subject the King of Great Britain as tributary to a foreign power by the acts of his subjects; to suppose the grant valid, and yet the condition void; to suppose it good for the king, and insufficient for the Company; to suppose it an interest divisible between the parties: these are some few of the many legal difficulties to be surmounted, before the Common Law of England can acknowledge the East India Company's Asiatic affairs to be a subject matter of prerogative, so as to bring it within the verge of English jurisprudence. It is a very anomalous species of power and property which is held by the East India Company. Our English prerogative law does not furnish principles, much less precedents, by which it can be defined or adjusted. Nothing but the eminent dominion of Parliament over every British subject, in every concern, and in every circumstance in which he is placed, can adjust this new, intricate matter. Parliament may act wisely or unwisely, justly or unjustly; but Parliament alone is competent to it.

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.