the rate bargained for 217. 108. per. ton. She was built in lieu of the old ship, Princess Amelia, and had two voyages to perform having first fulfilled the number of voyages which the Princess Amelia ought to have made. Those two voyages, conformably with the act of parliament, were to be completed at the lowest rate of the season, which was 261. per. ton, and from this the owner required to be reHeved. He (Mr. Hume) thought that 267. per ton was below what the owner could afford to take, if he were now to make a tender. But, if the vessel was afloat on any day after the preceding Wednesday (the 20th of March), she must, under the provisions of the act of parliament, perform her voyage at the rate of the last ship taken up. Here, instead of 217. 10s. per. ton, which was the original bargain, the act of parliament enabled the owner to get 261. but he wanted more than the legislature had sanctioned. This was the nature of one of the applications now beford the court. The applications were various in their nature--they were not simply confined to one or two classes. Those who examined them would find that they consisted of five or six. In the case of the ship Astell there was a positive deviation from the express provisions of the act of parliament. What was the nature of the transaction? The Astell was built on the bottom of the Prince of Wales, belonging to Mr. Mestaer, that vessel having been lost on her first voyage. Her peace freight was 207. 178. per ton, and she was engaged for six voyages. The tender was accepted on the 26th of March 1801, at which time, twenty tenders, made by various respectable shipowners, were rejected. The war contingencies were from 117. 58. to 9. 5s,, being an average of about 101. per ton. Thus, therefore, the permanent charge under the contract, would be 307. 178. per ton. When the Prince of Wales was lost, the owners applied to the court of directors, observing, that it would be a very great hardship on them, if they were obliged to build a ship on the terms for which the Prince of Wales had been hired. It would be very oppressive,

if

were confined to 107. per ton, for

contingencies, when 187. and 207. was the general rate; and they concluded by praying the court of directors to relieve them. What success did this application meet with? The prayer of the applicants, as in the case of the Baring, United Kingdom, and Marchioness of Exeter, was complied with, though it appeared to him in direct contravention of the act of the 39th of George III. cap. 89. By that statute, it was enacted, (when a ship was lost, and no blame attached to the officers or owners) that “* it shall be lawful for the court of directors to Asiatic Journ.—No. V.

agree with the owners of such ship, so lost, to build another ship for the service of the company, to be employed by them at the same freight and demurage, and upon the same terms, for and on which such lost ship was originally taken up, for the number of voyages originally contracted for, or as the owners should agree; that, at the expiration of the remaining voyage or voyages, such new ship should continue in the service of the said united company, until she shall have performed her six voyages," &c. Now, on the principle clearly laid down in this act, the new ship, though called the Astel, having been built on the bottom of the Prince of Wales, was not entitled to receive higher terms than those on which the latter ship had been hired. He conceived the court of directors had no right to grant any additional allowance to her owners. The opinion given by Mr. Adam, in 1803, was, that the act of parliament debarred the directors from granting relief. And what did their present standing counsel, Mr. Bosanquet, say on this point? "I am of opinion that the court of directors cannot lawfully do that indirectly, which they are prohibited from doing directly. The 39th George III. cap. 89 has prescribed a particular mode in which ships shall be taken up for the regular service of the company, by a contract for six voyages, at a certain peace freight, with liberty to agree for the payment of further charges, if in a state of war, or preparation for war. Any course of proceeding that violates this principle, is illegal. If, then, ships which are now under contract to perform six voyages at a certain peace freight, should be released, either gratuitously, or for a compensation, and afterwards engaged at a higher freight than that which is agreed for, by the existing contract, the principle prescribed by the legislature would be completely evaded." What then, was the conclusion to be drawn from the provisions of the act? That, if leave were given to build on the bottom of the Prince of Wales, it followed that the new ship should perform the remaining voyages at the original rate contracted for, viz. 204 17s, per ton, peace freight, and 107. per ton, war contingencies. But, it appeared, that Mr. Adam had, at a later period, changed his opinion on this point. On the 9th of January, 1807, when the application of the owners of the Baring, United Kingdom, and Marchioness of Exeter, was under consideration, he stated, that the court of directors did possess the power of releasing from cou tracts. It therefore appears to me, said Mr. Adam, that the court of direc tors have a discretion to release and regulate contracts, where the bargain was originally, or has by intervening circumVOL. I. 3 Q

"

titled to demand. In stating the history of the shipping transactions, he found so many deviations from the law, that he was really ashamed to have occupied the attention of the court so long on the subject; but he felt that it was necessary, lest the court should hastily and unadvisedly agree to the resolution then before them a resolution which went to give the directors a right to grant 5,000l. to one owner, and 10,0007. to another, without any farther trouble or inquiry. At present, it ought to be observed, they were not apprized of the sum that would be necessary for the relief of the different claimants. Now, if a person came to a body of men, and said, "I want some assistance from you," would they not very naturally ask, "what is it you do want? have you made a calculation of the sum necessary to remove your distress?" Could that individual expect relief, if he did not state what his necessities required? but the committee of shipping though they recommended relief, had laid no estimate of the sum that would be required, before the court. In the absence, therefore, of direct information, they must take the best data they could get. They must, then, look back to 1803. At that period, 50 ships received aid, comprising 44,473 tous-which, on an average one with another, of 67. 10s, per ton, gave a result of 295,6987. expended by the company in relief to the ship-owners. In examining the shipping proceedings of that day, he had been led into an inexpli cable labyrinth. He saw no data on which the directors appeared to have acted, when they gave to some of the claimants 2,5007. and to others 17,0007. He was anxious to know, in consequence of a question put by an hon. member of the court (Mr. K. Smith,) whether it was yet determined, how many ships should be relieved, at present, and on what scale that relief would be afforded? No answer having been given, he wished to see the principle that had been acted on in 1803-because, though in reality the proceeding at that period was no precedent, he thought, perhaps, it might be adopted as one by the directors. could, however, find no principle-he could discover no system. He went over all the papers, some of them printed, and others in manuscript, but he could light on no data to explain the reason of the apportionment that took place in 1803. He thanked the court of directors for their indulgence, in suffering him to have access to those documents; and he hoped he should not be considered to have acted ungratefully in making such a use of them-but, on the contrary, that his conduct would be looked upon as fair, en, and manly, since no individual could

stances, become too severe for the contractor to execute." This was his opinion on the 9th of January 1807, when he had, in 1803, when the first application for relief was made, stated, "that the act of the 39th of George III, cap. 89, is a bar to the relief prayed for. There is no power given to make any allowance for additional charges arising to the owners after peace is made." But yet, in 1807, when the case was put to him again, he gravely stated, that the directors did possess 66 the power to alter and regulate contracts." He seemed to think that the power of the directors could release individuals altogether from their contracts that there was nothing to control or oppose them. The directors, however, felt differently. They knew that no discretionary power was left them, by the act of parliament. They, therefore, said to the owners of the Baring, United Kingdom, and Marchiones of Exeter, who had contracted for a certain peace freight, and specific war contingencies, "Proceed on your peace freight, we cannot relieve you from that, but we will let you have an increase of the war contingencies, from 187. to 247. per ton." This was accordingly done, and they received 51. or 67. per ton, above what they had contracted for. Such was also the case of the Astell. When she was built, the directors had no power to give her any terms different from those on which the Prince of Wales was contracted for, on the bottom of which vessel she was built. The opinion of Mr. Adam was, however, acted on, and an alteration was made. In speaking on this subject, one could scarcely have patience, when so palpable a contradiction was detected. The learned counsel might suppose his latter opinion to be correct-but he believed few persons would be found to agree with him. He conceded to the directors a most extraordinary right—a right to release from the binding power of a contract. Now, he would contend that a contract once entered into ought to take its course,-it ought to be completed, in toto; but here the contractor was at once released from the specified war contingencies, and received a greater sum. It came merely to this :-the court of directors on application made to them, said to the owners of the Astell-" by the terms of your tender, you are bound to go six voyages for 201. 17s. per ton peace freight, and 10 per ton, war contingencies-making a total of 30%. 178. ; but we will not be so hard on you as to insist on your fulfilling the contract; let your peace freight continue, and we will increase the war contingencies." They did so-on her first voyage, the war contingencies were raised to 18/. 10s. per ton; being 87. 10s. more than the owners were en

He

he was interested one way or

other. The result, as he had before observed, of the relief granted, in 1803, to fifty ships, carrying 44,773 tons, was 295,6987.; and, as no data existed, by which the reason for giving 2,500l. to one ship, and 17,0007. to another appeared, he had taken a general average of 67. 10s. per ton. Now he would ask, did not this facility of granting money, afford a great temptation for breaking down the system, instead of supporting it? Was it not most dangerous to place in the hands of any body of men, a power, to disburse, as they thought proper, large sums of money? To give 5,000l. to this applicant-10,000l. to a second-and 17,0007. to a third? Now, he held in his hand a list of thirty-four ships, at present claiming relief. Of these the last six had a species of remuneration laid down in their mode of contract. It was agreed, that 40,000%. should be paid for the hull; but, if it came to more, the overplus was to be given to the owners-if it cost less, the difference was to be restored to the company. Those vessels were, therefore to be set aside. The remainder, amounting to 28, comprised 26,440 tons, which, at the same allowance of 61. 10s. perton, granted in 1803, (though, on the principle on which relief was now demanded, the high price of stores, &c. it might as well be 107. 10s.) would give a total

For one voyage of...... £171,860
For two voyages..

For three voyages..

343,720 515,580

In fact, dealing on a fair scale, and acting with all men alike,-supposing it a mere question of money, unconnected with any other consideration, they would not be able to get rid of it for less than 500,0007. Without meaning to detain the court much longer, he thought he might safely be permitted to say, that the nature of a contract was such, that every commercial man must desire it to be held sacred. It was on his strict actherence to his contracts, that the stability of the English merchant depended; it was the correct fulfilment of his agreements, that established his fame all over the world; it was his punctual discharge of every engagement into which he entered, that exalted his credit and character-and gave to his word, in foreign countries, more weight than even the bonds of others carried with them.(Hear! hear!)-Did it not behove the court, then, to take care how they for a moment departed from that just and upright principle? If, in the dealings of a private man, a strict adherence to contracts was expected, how much more necessary was it in their case, when they considered the immense magnitude of their transactions-when, in the very last year, their freight and tonnage amounted

to 2,000,0007.? were they now to grant a discretion, which was formerly abused ?which was so dangerous, that the legisla ture had been called on to step forward and redress the evil-to shield the direc tors from temptation which human nature could not resist? The court, in deciding this question ought to recollect, that the various contracts were not entered into by hasty or inconsiderate menbut by gentlemen, members of the court, who had grown grey in calculation, and who had sent in their tenders coolly and deliberately. It was but justice that the proprietors should know who were the applicants. He should therefore read their names. The parties were :-Capt. Murray, J. Forbes, Timbrel and Smith, Charles Christie, W. Sims, Henry Bonham, R. Borradaile, R. Hudson, J. P. Larkins, James Sims, James Walker, John Wordsworth, George Gooch, W. Agnew, J. Cord, Robert Williams, and Sir R. Wigram. From this list he could select three or four gentlemen whose bond he would take for half-a-million.-(4 Laugh.)-and whose knowledge of figures and of calculations, from the cradle upwards, is a sufficient proof that, in a case of this kind they would not act hastily or precipitately. When therefore, those contracts were deliberately entered into, was it not a matter for most serious consideration to weigh and examine the consequences well, before they proceeded to abrogate the nature of instruments thus solemnly agreed to? He had shown to the court the amount of the relief granted in 1803-he had also pointed out the probable amount of the aid now called for, and he had stated the names of the individuals by whom the application was made; all of which were circumstances of great importance. Confidence towards public functionaries, in general, was wise, as the interest of the great body for whom they acted was concerned. For instance, he conceived, that business which twenty men would perform very badly might be excellently done by the zealous exertions of three or four; he was ready to place a fair and just confidence in the court of directors, while they executed the regular duties which their office imposed on them; but still he could not support them in doing that which was directly opposed to a positive act of parliament. The legislature had not given the directors any discretion to abrogate contracts-it would be well, therefore, before the court opened the door to the exercise of such a power, that they should weigh, with scrupulons exactness, the probable consequences. But the company, it was said, would gain by the measure. This was a strange conclusion indeed." It is much better," observed the friends of the measure, "that you should

do this," than suffer these ships to be lost to your service." Now what was the fact? Some of the ship-owners said, 66 we will not go at the lowest freight of the season-we will have more than others go for." It was then immediately said, "If you do not comply with this demand, you will have no ships-it will not be possible for you to carry on your trade." He had felt it necessary to examine into this allegation, that, if they rejected the proposition of the owners, they would be distressed for shipping, and could not proceed with their trade. How, then, did this fact stand? If the whole of the ships which were to load for the next year, were refused to the company, unless larger rates were given (but they would not be refused, for the owners had no other employment for them, and must come round) they would not have a very extraordinary amount of tonnage to provide. Five ships were to go to China, carrying

And eleven to India

Making a total of................

Tons. 4,800

9,330

14,130

So that if those individuals refused to complete their contracts, the company would have to look for 14,130 tons of shipping. This would be the whole extent of the deficiency. Now he had spoken to Canada merchants, and other persons who were in the habit of employing large ships, and they said, there was no difficulty in getting the necessary quantity of shipping, if the company would provide for their expensive outfit. He did not, therefore, think, that the company would suffer either loss or difficulty, should the owners refuse to complete their contracts. He had stated the utmost extent of the deficiency, to provide for which was much better than to sanction a breach of agreement. Suppose the cost of fitting out other vessels amounted to 300,0007. Let it be paid, and, by the measure, the company would probably save 3 or 400,0007.; but even if they lost by it, he thought the question of money was nothing, when compared with the mischief which would probably arise from a dereliction of principle. To avert those mischiefs, if possible, it was his intention to move an amendment to the resolution, and he thought it was fair to state, that he meant to press it to a division. He knew it was a matter of extreme delicacy to appeal to individuals interested on any subject, as to the propriety of their voting on a motion connected with it. But, though this was the case, he could not avoid expressing a wish, as the directors were not in the habit of being present at any decisions in which their individual interest was concerned, that the principle would be fol

lowed up by those proprietors who had applied for relief.

Mr. Lowndes-" The directors voted for the increase of their own salaries." The Chairman called the hon. proprietor to order.

Mr. Hume proceeded. He was disposed to think, that the gentlemen behind the bar, voted, on the occasion alluded to, not as the court of directors, but as individual proprietors. He drew a very wide distinction between gentlemen voting as proprietors on their own affairs, and voting as directors. He always considered the executive body to act as directors, but to vote as proprietors. Though there was no express act of parliament by which gentlemen interested could be prevented from voting on any occasion, yet he thought a certain degree of delicacy was connected with the question-how far persons, petitioning the court for assistance, could, with propriety, support their own proposition by their votes? He did not say, that it was illegal, or, in the strict sense of the word, improper, but he would put it to their own feelings of delicacy to decide, whether it was altogether right for them to divide on the subject of a remuneration to be granted to themselves. "Having said so much" observed the honourable proprietor, “ [ think it proper to recapitulate, în a few words. That the proposition now before the court appears to me to be a measure hostile to the present system of fair and open competition. It is against the byelaws, of twenty years standing. It is against the spirit and letter of the 39th of George III, cap. 89. It is against the second section of the very act that enabled the company to give relief in 1803. It is against the whole of the practice since 1793. It is opposed even to what the committee of shipping allege to be a precedent, and which, if it be a precedent, being a bad one, the sooner it is got rid of the better. It is against all the facts and arguments that have been given in writing, to induce the court to agree to it. It is against the whole spirit of the shipping-laws. It is contrary to the real arguments of the special committee of 1803, and of the present shipping committee on the subject, though it is not opposed to the false conclusions drawn by the latter. It is, I think, a deviation from common sense, as far as agreements between man and man are concerned. It is as ridiculous as if we were requested to meet together for the purpose of breaking our own necks.-(A laugh.) — If this principle of abrogating contracts, at pleasure, be established at an expense of from 3 to 500,0007. is it not tempting men not to adhere to their engagements? I am sorry for those owners, who, from concurring circumstances,

have been obliged to apply for relief and I would have been most happy to have afforded it, were I not prevented by a strict adherence to the rule of right. I advise the court, not to disgrace themselves by any application to the legislature; since from the section of the act of the 43d of the King, which I have read, it is likely that such application will be rejected. If we wish our statements to the legislature to be respected, on this or on any other occasion, let us lay it down as our rule of conduct, to act upon principle. I now beg leave to move, as an amendment,-" That all the words of the original motion, after the word That' be omitted, and that the following be substituted-That it appears to this court, that, by a resolution of the general court, dated April 3d, 1793, it was unanimously determined, That a permanent system of hiring or building ships should be established, upou principles of fair, well-regulated, and open competition :'-And that by an act passed in the 39th year of his present Majesty's reign, cap 89, it is enacted, That all ships for the company's service, shall in future be taken up by public contract; and that advertise· ments shall issue for the same, particularising the dimensions, equipment, stores, &c. required, as to the same ships; and enacting, That the proposal, specifying the lowest peacefreight shall be accepted without favour or partiality: That by adherence to this system, many millions sterling have been saved in freight; and this court would regard a departure from the system so established, as one of the greatest evils that could happen to the company, especially any such deviation as might directly or indirectly induce the ship-owner to look to subsequent consideration, or indulgence, from the favour of the directors, or his influence with them, either by releasing him from his covenant, or increasing the rate of freight beyond the sum fixed and contracted for, under the pretence or allegation of unexpected rise in the price of stores or other articles :-That this court cannot but regard the application of the owners to be relieved from their contracts, and their refusal to furnish their ships, for the present season, at the peace-freight which they deliberately agreed to (on account, as it is alleged, of the price of stores, wages of men, expences in India, &c. not having as yet attained the standard they expected) as wholly unreasonable, as the owners must be posed to have calculated upon these as well as every other contingency, when they spontaneously made their tenders, and entered into their contracts :-And, especially, as a loss, if any should occur in completing their contracts, could only

sup

be admitted, on a comparison with the very high rates of war contingencies which they have received from the company during a long war. That the measure proposed by the court of directors, instead of fixing a given scale of allowance (if any allowance were necessary) equally applicable to all the owners, would leave it in the power of the directors to make any, and what increase, to particular owners, according to their pleasure, or regard for the party :-And the court, fearing that such an infractiou of the principle of public contract, might lead to a return to that practice of private contract, and partial selection, respecting the article of shipping (which cost the company 1,938,5357. last year), and to save them from the ruinous effects of which practice, the legislature enjoined the present system of fair and open competition-This court doth therefore recommend, that the application of the owners be rejected.

The Chairman rose and said-Although it was the wish of the court of directors, and most certainly his own, that this subject having been brought by the court before their constituents should be considered by those constituents; yet the speech of the honourable gentleman, who had just sat down, contained so much perversion of fact, and so much allusion to circumstances which could not be known to any of the proprietors, that he took the liberty of offering himself thus early in order to obviate some of the mis-statements and misapplications, as he conceived them to be, of the honourable gentleman, and to throw some true light on the subject.

It would not indeed be his object to follow the honourable gentleman at any great length, although the honourable gentleman had thought proper to occupy the time of the court for more than two hours: he (the Chairman) had more respect for that court than to wish to engross the rest of the day by endeavouring to answer all the perversions of the hon. gentleman; he would, however, with the permission of the court advert to a few of the most material of those statements which had been made; and he trusted he should be enabled to shew that they were either inaccurate or irrelevant.

He was not aware of the propriety of introducing as the honourable gentleman had done, so many topics upon a question so simple in its own nature: but the honourable gentleman had thought fit to declaim, at an inordinate length, upon matters which had no real relation to that question, a question which might be fairly and fully discussed in a quarter of the time which the hon. gentleman had occupied.

One of those irrelevant topics into which the honourable gentleman had gone