THE GRAND JUNCTION CANAL
A HIGHWAY LAID WITH WATER.


THE PARLIAMENTARY HURDLE
 
PRIVATE ACTS OF PARLIAMENT

Before the ceremony of ‘cutting the first sod’ could take place, those proposing a new canal scheme often found themselves involved in a lengthy and expensive legal wrangle.  This stemmed from the need to obtain a ‘private’ Act of Parliament, which was necessary to authorise the canal’s construction (and all which that entails) together with aspects of its operation, such as the toll to be charged on the passage along the waterway of various types of goods (the total cost of conveying goods comprised the toll ― the charge for using the waterway, generally governed by its Act ― to which had then to be added the canal carrier’s charge).
 

Start of the statutory notice appearing in the London Gazette, giving notice of an
application to Parliament for a private Act to build and operate the Grand Junction Canal.

A draft Act of Parliament is known as a Bill, and it was not unusual for a canal (and later railway) Bill to meet with strong opposition in part or in parcel when presented to Parliament.

Unlike ‘public’ Bills, which apply to everyone within their jurisdiction, a ‘private Bill’ [1] is a proposal for a law that applies only to a particular individual, group of individuals, or a corporate body, such as a local authority or public company.  If the Bill is approved by Parliament it then becomes a private Act (of Parliament).  The privileges granted by a private Act might include relief from another law, or a unique benefit, or powers not available under the general law, or relief from the legal responsibility for some otherwise wrongful act.

Where a canal was to built, a private Act was necessary if the capital to construct it was to be raised by creating a joint stock company ― if effect, by public subscription ― or its course lay across public land and that of individuals not associated with the scheme (unless they had given their consent, a area of law known as ‘wayleave’, often applied to early colliery railways).  There were two reasons for this.  First, under the cumbersome law of the day, joint-stock companies could only be set up by royal charter or a private Act of Parliament. [2] Furthermore, an Act of Parliament was necessary to authorise a scheme to proceed in accordance with specific provisions not otherwise available under the law ― for example, a provision generally to be found in a private canal (or railway) Act gave the proprietors the legal power to acquire specified private land by compulsory purchase, in effect, to acquire it without the owner’s consent, but with due monetary compensation.  Other provisions and stipulations might include the right to cross public highways, divert rivers and streams, fence off towing paths, demand payment for the use of the waterway (sometimes subject to exemptions, such as the movement of troops) and hold General Assemblies (shareholders’ meetings), to name just a few. The Act would also stipulate the arbitration procedures to be applied in cases were land values were disputed.

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OPPOSING THE BILL

Most of the work in examining a private Bill is undertaken by a parliamentary committee convened for the purpose and in which procedures follow a semi-judicial pattern.  The promoter of the Bill must prove to the committee the need for the powers sought, and the objections of any opposing interests are heard.

Applications for private Acts were often fiercely contested, not only by Luddites but by landowners affected by, for example, compulsory purchase, and by businesses whose trade stood to be damaged by the new forms of transport.  During the construction of our canals, the established river navigations ― almost as a matter of course ― fiercely protected their monopolies for transporting goods.  The Mersey & Irwell Navigation strongly opposed the application for a private Act to construct the Bridgewater Canal, which they saw as infringing their virtual monopoly of transportation between Manchester and Liverpool.  Another of James Brindley’s canals, the Trent & Mersey, faced similar opposition from the River Weaver Navigation, for near Anderton the planned canal was to run parallel to the river for some distance. [3]  But occasionally landowners across whose estates a canal was to pass actually supported the scheme . . . .

“Cassiobury Park is where we first fall in with the Grand Junction Canal. Ready permission was granted by the present Earl of Clarendon, and the Late Earl of Essex, to allow this great national undertaking to pass through their respective parks; and when we find the opposition that the late Duke of Bridgewater was continually receiving, from parties, through whose premises he was unavoidably often obliged to pass his navigable canals, it must stand as a monumental record, and example of the urbanity and amor patriæ, these distinguished noblemen exhibited for the weal of their country.”

A Tour of the Grand Junction Canal, John Hassell (1819)

Later, the canal companies, whose businesses then stood to be damaged by the railways, provided formidable opposition to this new form of transport and, as time was to show, with good cause.  From about 1840, railways began to present a threat to canals, for they could carry more freight than the canals and far more quickly.  Take, for example, the Kennet & Avon Canal (linking the Thames with Bristol), which suffered from the Great Western Railway (GWR) duplicating its route and undercutting its tariffs.  In 1852, the canal company sold out to the GWR after which the canal fell gradually into a state of dereliction. Another example was the Wey & Arun Junction Canal, the only canal to connect the Thames with the English Channel.  At its peak, in 1839, it carried 23,000 tons of freight.  In 1865, the railway between Guildford and Horsham opened in direct competition, but despite the canal’s carrying charges being cheaper, it could not compete with the railway for speed and convenience.  By 1868, traffic had virtually ceased and in 1871 the canal was abandoned.

And so proposals for a private Act usually faced strong opposition from several directions during the committee hearings.  Sometimes a scheme’s opponents succeeded in their challenges, leaving the promoters with weighty lawyers’ bills and nothing to show in return.  Sometimes the promoters revised their strategy to win their cause at a subsequent attempt, some notable examples during the railway-building era being the Liverpool and Manchester, the Grand Junction, and the London and Birmingham railways, all of whose Bills were initially thrown out.

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THE PRELIMINARIES

As the 18th century entered the period of canal mania, and faced with a flood of canal Bills, Parliament was forced to introduce a set of standing orders to reduce the chaos that was building up [4] and to give the public more information and a greater say in their construction.  The new rules, which appeared in 1793 (Appendix), laid down that all canal proposals should first be advertised in the official newspaper of record (the London Gazette) and in local newspapers along the line; plans and sections drawn to scale were to be be deposited with the Clerk of Parliament, Clerks of the Peace and Sheriffs along the line; estimates of cost were to be made; a list of subscribers was to be drawn up and also a list of affected landowners, indicating those in favour and those not.  If anything, this increased the weight of protest by the NIMBYs, which continues to the present day and has been demonstrated recently in planning the route for the proposed HS2 high speed rail link between London and Birmingham.

A new canal scheme was initially put in motion by advertisements in the press, which to give it credibility were usually endorsed by a number of prominent people.  Advertisements would usually be accompanied by arguments in favour of the scheme, such as those that appeared in the local Courier during the initial stages of the Macclesfield Canal project:

•     Goods could be conveyed by water for one quarter of the cost of road carriage.

•     Some forty steam engines and 5,000 houses in Macclesfield were currently supplied with coal at a cost exceeding by one third that which it would cost if canal transport could be used.

•     Great hardship to both the rich and the poor had been caused by the lack of a canal.

•     Material required for the manufacturing industries, imported through the ports of London and Liverpool, would be cheaper with canal transportation.

•     Grain, and the other staples of life, would be reduced in price, as would timber, slate, flagg, and stone.

•     Macclesfield was at the centre of a flourishing manufacturing district.  There were other competitors so why should the district be handicapped by the lack of a canal?  This south east part of Cheshire was also rich in freestone, lime, and timber.

•     The Duke of Bridgewater built his canal ‘through some of the finest estates in the country’ to foster the trade of Manchester by connecting it with the port of Liverpool.  Manchester, at that time, was scarcely larger than Macclesfield was at this time.

If the proposed scheme attracted a favourable reception, a steering committee ― the provisional directors, secretary, treasurer and solicitor ― would be elected and money then sought to meet the initial costs surveying and of obtaining the Act.  As an inducement to part with their cash, those who contributed would generally be given the first option of purchasing shares in the company should the Act be obtained. [5]

The main part of a canal Act defined the route (the ‘Parliamentary line’) that the scheme was to follow.  Thus, having raised sufficient finance and formed a committee, the next step was to employ a civil engineer to select the best route.  Until a private Act was obtained, the civil engineer and his surveying team had no right to trespass on private property, and permission to do so had to be sought from the landowner.  This was not always forthcoming, and stories abound during the railway era of surveyors carrying out their work surreptitiously at night using lamps as markers, and of being accompanied by bodyguards ― including prize fighters and gangs of navvies ― to protect them against violent opposition.

However, there was little point in presenting a Bill to Parliament if it was to face a substantial body of opposition ― especially influential opposition ― for it would very likely result in an expensive failure.  So the next task to confront the promoters was to mollify at least their scheme’s principal opposers with whatever inducement was necessary to placate them, which was usually cash.  As a group, the owners of watermills were particularly vociferous in their opposition to canal Bills, for they saw the canal company diverting the rivers and streams on which their livelihood depended in order to supply the canal with sufficient water; the solution here might be for the canal company to buy them out. [6]

But where opponents would not budge, despite a sizable carrot being dangled before them, and especially if they were powerful in terms of their parliamentary influence, the politically expedient course might be to re-draw part of the route.  This might result in a longer route and/or taking on otherwise unnecessary civil engineering work in order to bypass the obstruction, such as building a lengthy tunnel, cutting or embankment.  Such was the case with the London & Birmingham Railway, the first Bill for which was defeated in the House of Lords . . .

“. . . . in consequence of the opposition of a noble Earl, half-brother to the vicar, [7] through whose park Robert Stephenson . . . . had proposed to lead the railway.  A second Bill had been brought forward by which, at the expense of heavy works, the park and ornamental grounds of the Earl had been avoided, the line crossing the valley of the Colne by an embankment of what was, in those days, of unprecedented magnitude, and thus boring beneath the woods, at a distance from the mansion, by an equally unprecedented tunnel of nearly a mile in length”.

Personal Recollections of English Engineers, F. R. Conder (1868)

Thus aristocratic opposition resulted in the high embankment to the south of Watford Junction Station and the long tunnel about a mile to its north, neither of which lay on Stephenson’s preferred route for the railway.

Having selected a route, the prospectus for the proposed scheme ― often over-optimistic in terms of its estimated capital cost, timescale, revenue and expenditure [8] ― would then be published in the principal daily and local newspapers:

“The document then expatiates on the inconveniences which are at present experienced from the inadequacy of the means of communication; and the assurance is insinuated to all in whose neighbourhood the line will pass, that it will be a boon to trade . . . it is then duly set forth that the value of the land is either ‘moderate,’ or a comparatively ‘trifling’ item; that the whole line with all necessary appendages, may be completed at an expense of so many hundreds of thousands sterling; that the annual return on the traffic arising from the conveyance of passengers and goods will yield, at very moderate rates of tonnage, an income to be divided amongst the subscribers ‘of at least ten per cent. per annum on their capital,’ after paying for all charges for making the line and keeping it in repair.”

Our Iron Roads, Frederick S. Williams (1852)

The Prospectus informed potential investors how shares in the new company were to be applied for ― and overwhelmed by a golden opportunity to earn 10% net on their money, investors reached for their cheque books.  Assuming sufficient capital was pledged, standing order documents (estimates, schedules, maps, levels, etc.) could then be submitted, witnesses in support of the scheme lined up, our learnèd friends consulted and briefed, and application made to Parliament for a private Act.

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THE PARLIAMENTARY COMMITTEE

When finally in committee, the promoters often found themselves faced with lengthy and expensive sessions.  The members of a parliamentary committee set up to examine a canal Bill needed to satisfy themselves that the project was feasible in both engineering and financial terms, and that it was needed in the area it was to serve.  Also, that it did not unnecessarily interfere with private interests or public rights and that any harm to these was outweighed by the scheme’s likely benefits.  In examining the proposal before them, committee members asked searching questions.

When, in 1762, the parliamentary committee set up to examine the application to extend the Bridgewater Canal to the Mersey questioned James Brindley, they were entertained to some practical demonstrations.  When asked to produce a drawing of an intended aqueduct, Brindley replied that there was no plan on paper, but he would illustrate it using a model.  He returned to the committee room with a large cheese, which he cut into two equal parts, saying, “Here is my model.”  The two halves of the cheese represented the semicircular arches of his bridge, and by laying over them some long rectangular object, he showed the committee the position of the river flowing underneath and the canal passing over it.  On another occasion, having spoken so frequently about ‘puddling’ and describing its uses and advantages, some members asked what this mixture was that could be applied to such important purposes.  Preferring a practical demonstration to a verbal description, Brindley had some clay brought into the committee-room and, moulding it in its raw untempered state into the form of a trough, he poured into it some water, which soon leaked away.  He then worked the clay up with water, to imitate the process of puddling, and again formed it into a trough, which held water.  Brindley was also in the habit of drawing diagrams in chalk on the committee room floor.
 

But as time progressed, Brindley’s chalk and cheese approach gave way to legal teams representing the opposing factions, who became highly skilled in fighting their respective corners; and, as always in such situations, the lawyers found rich pickings.  Many witnesses, whose expenses also had to be paid, were called to support or oppose a scheme and they were cross-examined by counsel representing the parties involved, sometimes helped along by allegedly ‘expert’ witnesses, such as Doctor Dionysius Lardner.

Despite his other talents, Lardner is remembered in history for his disagreements in committee with the great civil engineer and railway builder, Isambard Kingdom Brunnel (1806-59).  Perhaps the most famous of these relates to the construction of the Box Tunnel on the London to Bristol railway.  The tunnel had a 1-in-100 gradient.  Lardner asserted that if a train’s brakes failed in the tunnel, it would accelerate to over 120 m.p.h., at which speed the passengers would suffocate.  Brunel pointed out to the committee the basic error in Lardner’s calculation, his total disregard of air-resistance and friction.

But the outcome of such exchanges was that many project promoters failed to convince the committee, and their Bill was defeated.  Some Bills that failed at their first attempt subsequently reappeared, that for the Liverpool and Manchester Railway being one such case.  At the first hearing of this Bill in 1824, the line’s Engineer, George Stephenson, failed to provide the committee with adequate explanations about the scheme’s engineering aspects:

“Thus ended this memorable contest, which had extended over two months ― carried on throughout with great pertinacity and skill, especially on the part of the opposition, who left no stone unturned to defeat the measure.  The want of a new line of communication between Liverpool and Manchester had been clearly proved; but the engineering evidence in support of the proposed railway having been thrown almost entirely upon George Stephenson, who fought this, the most important part of the battle, single-handed, was not brought out so clearly as it would have been had he secured more efficient engineering assistance, which he was not able to do, as all the engineers of eminence of that day were against the locomotive railway.  The obstacles thrown in the way of the survey by the land-owners and canal companies, by which the plans were rendered exceedingly imperfect, also tended in a great measure to defeat the bill.”

The Life of George Stephenson, Samuel Smiles (1857)

Another notable defeat took place ten year later, when the Bill to incorporate the Great Western Railway Company and its proposed line from London to Bristol came before a parliamentary committee for scrutiny and approval.  The scheme’s promoters set to, to do battle with the vested interests who opposed it, including landowners who either objected to railways for the simple reason that they were new or because, it was alleged, they would terrify their livestock.  Others hoped to bid up the price of the land the railway would need to acquire.  But the most vociferous opposition came from rival transport interests, these being coach companies, the Kennet & Avon Canal Company, and rival groups of railway promoters.  The contest lasted for 57 days and ended in the Bill’s defeat.

When the Bill was resubmitted in the following year, Brunel, the line’s chief engineer, presented the company’s case.  His cross-examination lasted for 11 days.  Brunel was a master at all aspects of his craft, including handling a parliamentary committee. In paying tribute, an eye-witness observing his performance during hearings in the House of Lords, had this to say:

“He was rapid in thought, clear in language and never said too much or lost his presence of mind.  I do not remember ever having enjoyed so great an intellectual treat as that of listening to Brunel’s examination.”

This second enquiry lasted for 40 days and ended in victory for the Great Western railway, but at a cost of £90,000 in legal fees and parliamentary expenses.

The ceremony of ‘cutting the first sod’ ― this illustration is from the railway era.

A Bill that successfully negotiates the parliamentary hurdle receives the Royal Assent from the monarch (last given in person by the Sovereign in 1854), after which it passes into law as an Act of Parliament.  By it, its promoters were authorised to incorporate a company to build the proposed canal, and were provided with the necessary powers for that purpose.  The ceremony of ‘turning the first sod’ could then be performed.