were unable to perform their contracts because they were mistaken in their calculations? If a precedent was good now, it would equally hold good at another time. The argument urged now was that The owners had made their contracts upon false calculations. This was the plain proposition upon which the claims for additional allowance was founded. If the hon. chairman was not prepared to say that the like application would not be made three or four years hence, it would be something like an act of injustice towards those who should now be employed; for if the precedent was good it would be treating one set of contractors in a different way from that in which others were treated. Much had been said about this system: what was the system, and what were the advantages of it? In the first place it gave the directors no discretionary power, and it secured to the company ships at a certain fixed rate of freight. It gave to the company the power of taking up contracts for time. What was its next advantage? It was a system of open contract which was not only beneficial to the parties who were to be served, but also to those who gave their services. The object of it was to produce a fair and open competition to all those who were desirous of engaging in the company's service; and the principal advantage of it to the company was, that it obliged those who entered their service to bind themselves by solemn contracts to perform their engagements, so that they might be all treated alike, and there might be no afterclaps. The object of these contracts was to prevent the company being at any time exposed to the vicissitudes of uncertain engagements, and to secure for a certain time, under all circumstances, the services of ships at a positive fixt rate of freight. The excellence of the system was that the owners could be compelled to perform their engagements under all difficulties. There was no power, either in the court of directors, or the court of proprietors, to absolve the owners from their engagements. For in vain would such contracts be entered into if the parties had at all times the power of breaking them and yet this was what was proposed by the court of directors. There could not be a plainer rule of conduct than to call upon these parties to give up their contracts if they did not think proper to perform them; but upon condition of their being answerable for the consequences. Who were to be benefitted by this proceeding? Why the ship-owners alone. They were to be at liberty to break their contracts because they were too advantageous to the court of proprietors. Suppose they had been disadvantageous to the company, would any one endure the

:

proposition that the court of directors were at liberty to break their contracts with the owners? Surely, then, if the same rule was to bind the company it ought equally to bind the owners. Both parties entered into the contract for better or for worse. If the company could not be delivered from a disadvantageous contract without the grossest injustice, all the company asked was, that the same principle should be applied to the owners: but, no, that was not the proposition. The company were to take all risks upon themselves; and if the chances happened to be in their favour, it was all very well but if unfavourable they must patiently endure all the consequences while on the other hand, the moment the owners found their contracts to be ruinous, that moment were they to be at liberty to break them with impunity. They might keep them so long as they enjoyed the advantage; but the moment that fortune frowned upon them, they were to be absolved from all responsibility. There were two distinct grounds upon which he objected to this proposition, and they were entirely distinct. In the first place there had yet been no reason given for its adoption. The proposition was to relieve men who after a solemn consideration of the contracts into which they had entered, came to the court to demand permission to give up their contracts, or have such additional allowances as would be equivalent to the sacrifices they must make, if their contracts were rigidly performed. As to the principles of this, in the abstract, his objections might possibly be removed, if any sufficient reason could be given. But none such had yet been assigned. The court knew nothing of the circumstances of the ship-owners. Did they come to the court in forma pauperis, in order to appeal to the hamanity of the court? or did they come to demand this as a right? To these questions no answer had been given. All that the court had was the solemn assurance of the court of directors 'that these additional allowances were necessary. But why should the court depart from a fixed general rule, without a sufficient explanation of the necessity for that departure? Did the court of directors suppose that the House of Commons would permit this measure to go forward upon their bare statement, of its necessity? The court were told that the directors acted, to a certain degree, upon their responsibility, and that their conduct was open to investigation. No doubt the directors might be conscious of their own good intention; but how could the proprietors fairly consider this subject, unless they were allowed some grounds to proceed upon? It was very likely that the court of directors, when they enter

ed into contracts with the owners, acted upon principles of equity and justice: but if the terms which they made were liable at all times to be broken, accordingly as times and circumstances altered, of what use were such contracts at all? If the principle now contended for was a proper one it should be fairly recognized by act of parliament. Let it be adopted as a iule that the owners might, under such and such circumstances avoid their contracts, and that under other particular circumstances they should be held good, and then he would be quite satisfied, because then the company would know what they had to expect. But there was an express act of parliament, prohibiting this principle and declaring that it should have no effect except in the case of actual war, or preparations for war. "There," said the hon. chairman, "there was no occasion for that because the act of parliament of the 39th of George III, already granted that permission." As that was the case, said the directors, we need not go to parliament for additional powers, because the report went upon the ground of peace. But it was very extraordinary that the act of parliament proceeded upon the idea of their being a state of war. "We are cautious," said the legislature, "because we cannot say there is a state of peace; and therefore it is that we say, you shall not have the power of granting additional allowances, except in a state of actual war, or preparation for war."-But here was the extraordinary situation of the case. The directors took upon themselves to say that provisions and stores would not fall to such a price so as to make these beneficial contracts for the owners. He begged to ask upon what grounds did they proceed-how were they to apportion the allowances with any principle of justice towards the company? It was proposed to take each contract into consideration. The directors were to allow the owners all the profits which they might have made during the existence of their contracts for four or five years, perhaps, out of the -six; and then for the sixth, they were to give them the additional allowances. Could there be a more unjust principle than this? He would suppose that some of the contracts were made for six years. Four out of those six were years of extraordinary profit, but the next two would be years of loss, and for those two the owners were to have all manner of indulgence, without any reference whatever to the profits of former years. Now, he (Mr. K.) in order to be satisfied that the owners were intitled to any relief at all for those years, must know whether their profits did not exceed any losses they might have sustained.

The Chairman said, that there was a

certain fixed principle of allowing something to the owners for a first, second, third or fourth voyage.

Mr. Kinnaird said, he appealed to the court, whether this was not a most extraordinary thing, that they were to be told there was a certain principle for regulating these cases. This was rather inconsistent with the information which the proprietors had outside the bar; for they were told that there was no fixed principle. The Chairman said, he thought he had explained this already.

Mr. Kinnaird said, that there was to be a principle for regulating precisely the profits of the owners according to the number of voyages. Now, here was rather an extraordinary case. This was the very principle against which he was contending. The system upon paper was this: You, the ship-owner, before you enter into the contract with us, are to make up your mind as to the price for which you can afford to hire your ship for a given time. You are to state the terms by which you mean to be bound. But what was the doctrine now contended for, and the principle admitted by the hon. Chairman? Why it was this :- yes, it is very true your contract is so and so, but we will allow you so much additional for your second voyage, so much for your third-and so on until the contract is expired. But for what reason was this done? Why because the owners said truly, they could not perform their contracts without such allowances. What!-were the company to act upon the evidence merely of the ship-owners themselves?— Were they to take their information from an interested party who might find it codvenient to make out a case of great hardship and distress? But why were the company to confine their calculations merely to the losses of the owners, without at the same time casting up their certain gains? If the directors were to make a calculation of what the owners lost in three years as a mode of average, why were they not also to make a calculation of the profits of the three preceding years? Really this was a most alarming principle, in the dispensation of justice. The company were to have an enormous sum taken out of their pockets to indemnify the owners for the losses of money which they had calculated upon making by their contracts. They were to pocket all the advantage of a winning game, and to be indemnified for a losing one: and yet the hon, chairman called this, "acting upon principles of equity and justice, towards the owners." Really, he never heard such words so grossly misapplied. What! -the owners were to come, at the end of three or four voyages, and claim a sum of three or four thousand pounds each for their own miscalculations! surely the

court of proprietors would open their eyes and arrest the progress of so ruinous a system. Well, admitting the necessity of doing something for the owners, that would bring him to his second objection, which was to the enormous discretionary power with which it was proposed to vest the directors in the disposition of so large a sum of money for the relief of the, owners. Surely if the proprietors were to adopt the principle that some relief was necessary, the least they had a right to expect was some certain ascertained mode of administering the relief. What was the case submitted to the court by the court of directors? Here was a certain set of gentlemen who had contracted for a certain number of ships, in the confident expectation of making large fortunes by their contracts; many of them had amassed considerable wealth; but if they had not, they were upon every principle of law, bound to take the loss upon their contracts. If they had contracted too low, it was their own fault, they must take the loss, for they entered into their engagements upon the chance of variation in the prices of stores. The court, however, must presume, until the contrary was shewn, that they had derived great advantage during a certain portion of the time for which they had contracted. Well, but the court was now in this situation, that the owners refused to fulfil the rest of their bargain, and were content to pay the penalties, as the wisest course they could pursue. But it was then said, that it was in the power of the company, if they chose, to continue them in their service, by paying them the difference of the price which it must cost the company to take up other ships: and then the court of directors applying to the court of proprietors without any other reason for the proceeding, than that it would be cheaper to enable the present owners, by reasonable assistance to perform their contracts, than it would be to enter into new ones. Cheapness was entirely out of the question; for it was not 10007. one way or the other, which was a consideration with the court. No doubt, the court would rather pay 200,0007. than 500,0007.; but the question was whether or not the shipping system should be inviolably preserved? For his part he would rather preserve the system under any disadvantage than allow 100,000l. to be paid in the manner proposed. But the hon. chairman, insisted that by this measure the company would not only save money, but it would preserve their system. Really, he could not comprehend the force of the argument; for it was no less thau this. You must violate the system, in order to keep it inviolable,—you must destroy it, in order to preserve it!—The hon. gentleman's argument involved a

complete contradiction; for he could not possibly maintain his first position with out destroying the other. The principle which applied to all other transactions of the like kind in the mercantile world, applied to this. The maxim of the system was open competition. An honest and well intending ship-owner meaning to act conscientiously toward the company, had a right to say to his speculating neighbour, "you have offered much too low: I know you cannot afford to hire your ships at such a price. I hope you will suffer for it, for you really hurt the trade; for it is a mere speculation of yours. It is a deception upon those who employ you; and you have prevented those from entering the service who would perform their contracts conscientiously." Now, this was really the evil of the system, and it was no argument to say, that those who gave up their contracts would be supplied by others in their place; for if the company encouraged this principle of allowing men to give up their contracts, it would destroy the system of open competition, and would place the company continually in the power of the ship-owners. Admitting it to be true, that the present ship-owners could not sail at the price stated, what protection had the company from the continual operation of this evil? If by the present competition, the company gave the owners too low a price, and they were given to understand that if their speculation failed, the company would give them money to enable them to carry it on, the company would be always exposed to the inordinate demands of the owners; and this was the argument of the hon. chairman, for he candidly told the court, that they must be placed in this situation if fresh contracts were entered into; therefore, it was clear that the company were placed completely in the power of the shipowners, for the hon. chairman openly used the argument himself, and said, "if you do not adopt this mode of satisfying the demands of the owners, you must be obliged to send your goods out in a ruinous and bad description of ships." But he should expect, in common candour and common deference to the proprietors, a better answer to this proposition than had been given. The case was urged upon the ground of economy. That was the argument, and the sole one, upon which it was pressed; but he wanted to know what there was to prevent the company from exacting the performance of the contracts from those who did not chuse to go through with them? Why was this to be left to the discretion of the court of directors, whether they would prosecute the shipowners or not? At present, he wished to know on what grounds these contracts

were to be given up, unless it was with reference to the particular circumstances of each individual case. If a ship-owner made a large profit from his ship, he should look with a very different eye to the situation of the man who had been dealing with the company only for two years, and during a period when the whole severities of a war were pressing upon him. This was the view in which he would wish the situation of each individual owner to be considered; but he could not consent to the establishment of one sweeping precedent, which would at all times be called into operation, under similar circumstances, without any reference whatever to the particular grounds of its application. The hon. chairman had contended, this measure was proposed precisely upon the precedent of the year 1803, but he (Mr. K.) denied that was a precedent, and he objected altogether to the doctrine of precedents, because it tended to confirm that which was originally bad in principle. But, in fact, the reasons for which the measure of 1803 was adopted, totally failed at the present time.

From what had fallen from his hon. friend (Mr. Hume) very serious alarms were excited in his mind with regard to the shipping committee, whose proceedings appeared to be extremely irregular. His hon. friend had, with great research, found out different opinions in different parts of the service. He had found out Mr. Adam had on one occasion told the company that they might grant allowances, and that the directors might regulate them according to their own discretion; and yet in several years afterwards he gave a very different opinion. He did not wish to decide the question, whether Mr. Adam's opinion was as good as his hon. friend's, or to set up his hon. friend's opinion against that of Mr. Adam ; but he thought that the opinion of any man of common sense was as good as that of any lawyer upon such a subject. He wished to ask the court what the opinion of Mr. Serjeant Bosanquet was, if the opinion of Mr. Adam was right? or, in other words, what was the opinion of Mr. Adam if Mr. Serjeant Bosanquet was right? The opinion of that learned gentleman appeared to him to be a very sound one; but he would undertake to say, that the opinion of Mr. Adam, in the year 1807, was not borne out by the opinion of the present standing counsel of the company, for he took it to be impossible for the hon. chairman, with all his ingenuity, to reconcile these two opinions. The hon, chairman took occasion of giving the court an instance of his hon. friend's imputed want of candour in the mode of treating the subject; and according to

the maxim ex uno disce omnes, he formed his opinion of the whole from one. The court might apply the same maxim to the speech of the hon. chairman, and from one they might judge of the whole of his sentiments. He (Mr. K.) gave the hon. chairman great credit for taking the words of his hon. friend in a litera! sense, when he said, that he believed the present shipping committee had not read the report of the shipping committee of 1803. It was very true his hon. friend had said so; but it was only as a charitable interpretation of the conduct of the present shipping committee, who, he said, could not possibly have read the report of the committee of 1803; for if they had, they could not have subscribed the report which contained such invincible reasons against their own proceedings. His hon. friend had said, that the: committee would not come armed against themselves, as they really did when they rested upon that report. The hon. director had alluded to the case of the' Astell in answer to what his hon. friend had said, but the explanation given, was very unsatisfactory. For his own part, he thought, that in that case, the act of parliament had been grossly violated; for, in that case, a different rate of freight was given from that which was given to the ship in lieu of which it was substituted. He would be glad to know, by what authority an additional rate: was then given, in prejudice to other owners? for he was now speaking on behalf of the ship-owners only; and this, in fact, was the real drawn question, It was not with parsimonious views that he objected to this measure. He stood up alike for the company as for the shipowners; and therefore he should propose, as the only safe remedy that could be pursued, in order to preserve the principle of the system, that the penalties should be enforced, and then that the ships should be thrown open amongst the owners, and fresh contracts entered into. It was not his wish, from parsimonious views, in order that the company might profit by them, that he opposed the present measure. His object was to stand up for the ship-owners in general who were connected with the India company, and whose interests were in general identified with them, because he thought that by so doing the company would attach to their interests persons of consideration and character. This, he thought, was the most prudent course to pursue, as well for the protection of the system as for the advan tage of the owners; and: he was quite sure that the interests of the company and the owners at large was so much the same, that if the system was depart ed from, each would depart from their

own interests. If the proposition he should make was not adopted, there could be only two reasons given for it. The one was, that it would be more economical to act the other way. If this argument were urged, then he would ask the directors to state what was the amount of the evil? At present, they had given no statement of the amount. If the plan be should propose was adopted, there would be no necessity for going to parliament, nor any necessity for breaking through the system. Breaking through the system was admited by the hon. chairman himself to be an evil. Therefore he did fairly assert that this was not a question between the proprietors and the directors, and he should propose that the point should be discussed, with a view to the ultimate interests of the company. He should recommend that the directors should make a calculation of what would be the difference between the expence of the plan proposed, and the maintenance of the system as it was now established by law. If they should decide in favour of the established system, there might be a loss of money, but a loss of money only, and that occasioned by a variation of prices not foreseen. On the other hand, if they pursued the other plan, they would break through the system itself, and they would do what, in his opinion, was as bad; they would expose themselves to the ridicule and the hostility of the House of Commons, for they would never consent to the measure of putting into the hands of the directors a large sum of money to be distributed at their discretion; and certainly he, for one, would advise the directors to look at the case seriously in that point of view; for however pure their discretion might be, it would be extremely unwise for them to take upon themselves the odious responsibility of dispensing among the ship-owners so large a sum £200,000. For their own sakes they ought not to lay themselves open even to the imputation of improper motives and this was one of those cases where discretion and the use of money coming together, produced very dangerous consequences. It appeared to him, therefore, to be wise in the directors not to place themselves in that situation. It was even the wish of the proprietors that the directors should be placed beyond the reach of suspicion, to which they would inevitably be exposed if they took upon themselves this awful discretion. advised them therefore, by all means, to adhere strictly to their established system, for although the other might be safe, yet this was safest. They should make a calculation of what the difference would be in the one case and the other, Asiatic Journ.-No. V.

as

;

He

and avoid by all means any appeal to parliament, who, they might be sure, would not second their wishes in breaking down a system, the perfection of which was that it admitted of no exception. He concluded by stating, that he felt himself bound to support the amendment of his hon. friend, because he thought this course was for the interest of the company, whose interests were inseparable from those of the ship

owners.

Mr. R. Jackson rose to propose a motion of adjournment, on account of the lateness of the hour, and his unwillingness at such an hour to occupy the time of the court at the length to which he felt himself bound to address the proprietary. He had no personal convenience to consult; but after what had occurred in the course of this debate, he thought it would be expedient for the court to adjourn for a time, in the hope that some other measure might be fallen upon, more congenial to the general sentiments of the court than the one now proposed. Unanimity was a desirable object, but which he feared could not be attained under the present circumstances of the case, and therefore he should hope that the court would accede to a motion of adjournment in order to have the matter more deliberately considered, and that some other expedient should be proposed, more likely to give general satisfaction. He therefore moved, "that this debate be adjourned until this day week." He had strong hopes that some measure might be adopted for the relief of the owners, without violating the sacredness of the system. Above all things he should recommend the court to abstain from going to parliament, where they might expect the subject would undergo that discussion which would neither be agreeable nor creditable to the court of directors. If the question were now pressed, it would not be said to be a fair decision; for many of the most respectable proprietors had left the court on account of the lateness of the hour, and indeed it would be rather indecent to press a decision in their absence. With these views, he moved the adjournment.

Mr. Lowndes seconded the motion, and urged the propriety of steering between Scylla and Charybdis; recommending to the court to act upon the good sense contained in the maxim, "in medio tutissimus ibis." Unanimity could not be hoped for upon the present question, which tended entirely to break down the company's system; and agreeing in the good sense of his hon. and learned friend's observations, he thought it would be prudent to withdraw the present motion, with a view to have the question re-considered on a future day, in a less excep VOL. I. 3 T