Note 66 — LUNÆ, 14° DIE JUNII, 1784.

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.