Lord Broughamsaid, he had so often had occasion to address their Lordships in reference to railway legislation, that he would only occupy their attention for a short time on the present occasion. The course they were now pursuing had from small beginnings waxed exceedingly great, and almost overpowering. The great mischiefs of that course were, in his opinion, twofold. First, the very great and almost unavoidable haste and want of due deliberation with which the several measures were of necessity carried through the different branches of the Legislature, inasmuch as it was impossible physically for those branches of the Legislature, the two Houses of Parliament, to bestow the requisite attention either to the principle or the details of each measure, when there were 240 of those Railway Bills at one and the same time before them; the consequence was very great haste, inattention, error, and inaccuracy, and above all, very great injustice to the individuals concerned in the progress of those lines. Now, the remedy suggested for this was of two kinds; the one was the constitution of what was called the Railway Board, and the other the consideration, systematically, of the general principles of Railway Bills, as in the Bill before their Lordships; but which Bill his noble Friend (the Earl of Dalhousie) would admit had never been opened or discussed upon principle, that having been put off from time to time till the present moment, when it had reached its last stage, ["Hear, hear."] He had no recollection of the Bill ever having been discussed in any former stage; if so, he must have been absent. Those two remedies for the haste and inattention which seemed to be thought inevitable in order to facilitate the passing of Railway Bills, were not sufficient. He pretended not to say, nor at any time had he said, that there should be no Board of the nature of the Railway Board, that there should be nobody to consider the Bills which were proposed in rapid succession, apart from Parliament, and to aid and assist Parliament, preparing the ground, as it were, for the diligence of Parliament. On the contrary, he felt from the beginning that, if possible, some exceedingly advantageous consequences might arise from that course being taken. He by no means pretended to say, that there should not be selected a 1098 number of principles applicable to cases of this sort, and that those principles having been duly considered, then they should frame a Bill, as the Consolidation Clauses Bill now before their Lordships. But it was to the mode in which this was done that he objected. His opinion had been that nothing worse could be contrived than that tribunal commonly called the "Railway Board." He did not mean to say, that it ought not to be connected with the Board of Trade. He did not mean to say, that the individual under whom the Board was placed, his noble Friend opposite, was not admirably calculated to hold that office, not only from his excellent talents, but from his situation as President of the Board of Trade. No doubt his noble Friend had exerted himself with the greatest possible diligence; and that he had had thrown upon him a greater amount of business, of extra business, and of extraordinary business, not formerly belonging to his department, than ever was by any arrangement of business thrown upon any Member of the State, all of a sudden. But, though this mass of business had been cast upon his noble Friend the President of the Board of Trade, over and above the business of that Board, he had conducted it most cheerfully and with great diligence. But, while he admitted this, he must add to the admission one of the great reasons why he thought this arrangement a bad one; it was, that the addition of this great amount of business must needs have overwhelmed the Board, and have given rise to arrangements which could hardly have been avoided; such as no person having a great deal to do and a great number of cases to decide could possibly get through. No astronomer would deny that there were only twenty-four hours in the day in the year 1845, any more than he would have done in the year 1835. Consequently, it was utterly and physically impossible, that the Board could have examined the evidence in each of those cases; and yet, in order to help the House of Commons, to be ancillary to that House, to be of any use to that House, they must have examined all the cases, and the whole of each case. But then he was told, "They don't examine the whole case; they only examine one party—the projectors of the railway." Then how could they be of any assistance to the House of Commons, which was bound to examine all parties? The fact was, that the help thus given was the help of the blind man to the seeing 1099 man. It was not the blind leading the blind; that was absurd enough in itself; but it was the blind leading the seeing person. The House of Commons saw the whole of it; the Board of Trade saw half; and yet the half-seeing Board of Trade was to help the whole-seeing House of Commons. But how was it with respect to justice? Great interests were determined by the Board of Trade. It was said they were not to decide cases. But then it was confessed, that if they gave their consent to a Bill, it was 100 to one on that the Bill would not pass. That was very nearly a decision, if not quite one; for it greatly influenced the decision of the House of Commons; and if it did not influence their decision one way or the other, it did very little or no good. If the Board was to go through one-tenth of the business, he did not see how they could be of much assistance to those who were to go through the nine-tenths and the other tenth besides. He confessed he was totally unacquainted with the subject; but that was the view which a rude and unenlightened person took of it. But this was the way in which property was injured. A shareholder might invest 100,000l. in a railway; a speculator not as many pence. All speculations, no doubt, were objects of care. But their shares when the Report of the Board was made in favour of the Bill might mount up 10 per cent.; or should the Report be against it they might tumble down 10 per cent. So that the Railway Board was of consequence, dealing with the value of a man's properly, and large sums of money were at their mercy. Then it was curious to observe, that the judge who was to decide on a Railway Bill, in which he might be concerned to the extent of 100,000l., was to hear only one party; not him, nor his advocate—not the friend of the Railway Bill, but the enemy. Suppose he (Lord Brougham) were a proprietor—which he never was of anything of the sort—of a railway going to the southern direction in competition with the South-Eastern Railway, and had a great number of important reasons to urge against the South-Eastern; and, if allowed, could probably destroy all chance of the South-Eastern being accepted, he would not be permitted to urge even one title of evidence or of his objections against the Bill. The only person who would be heard was the projector of 1100 the South-Eastern Railway; but, had his objections been heard, they would have prevailed; had his evidence, it would have prevailed; but only the evidence for the South-Eastern must be taken, and then a vote in favour of that line must be passed, and then down must tumble stock in the new railway, the competing line, as it was called. Yet had he been heard, he should have proved against his adversary, who would have been postponed. That was an odd sort of way of dealing with the rights of property; that the Railway Board should hear only one side, and decide in favour of the heard party, and against the unheard party. This was, indeed, a very dangerous precedent, though it came from a high authority, a Sovereign, a royal author, an eminent author, King James I., who once went into a court of law. The Chief Justice allowed him to take possession of his seat, but the King was a little surprised when he was told that he might dispense with giving any decision on the case under hearing; he was surprised that he should sit there and not have the opportunity of deciding and showing his ability. After hearing the arguments on one side he said his mind was made up. Then came the other side, after hearing which, he declared it to be one of the most troublesome, disagreeable, and useless things that could be, for it was much easier to decide on hearing one side only, than to be plagued, and troubled, and pestered with the other arguments. So it was with the Railway Board; they "might go further and fare worse," as His Majesty said, and so he did. The Board was ordered to be kept in the dark itself, for the purpose of assisting the House of Commons; for the purpose of doing justice to the parties they were to hear only one side, and then they were called upon to report their opinions to the honourable the House of Commons, and the right honourable the House of Peers. There was another curious contrivance in that dark and invisible tribunal. Much depended upon the state of the votes; because the opinion of the Railway Board was wanted to go to the House of Commons. Now, suppose the Members of the Board should be divided, three against two. He might be permitted to say, that he had known instances even in that House—perhaps he might find one that very night—where the minority was right and the majority wrong; and he confessed that he had yet as much to learn of the infallibility of majorities us he had to learn of that of a certain 1101 foreign bishop. He said that with the greatest possible respect to some of his noble Friends; but he must repeat, that he had yet to learn the necessary infallibility of majorities. He had known a majority of 300 to 200, which was in the same proportion as three to two; and yet the 200 were right. That was proved by the majority afterwards coming round to the opinion of the minority—as on the question of Catholic Emancipation, for instance. [The Marquess of Lansdowne was here understood to remark that the contrary was sometimes the case.] That might be so; but it was quite clear that it was a very material thing to ascertain whether a minority was right or wrong. It was very material to those who were guided in their opinions by the Board to know whether they were unanimous, or whether the Bill was not carried by a very narrow division. But what if it were two and two, which happened in that very case of the South-Eastern Railway? The Chairman having a casting vote, voted twice, and the others voted once. In point of voting that was decisive; but in point of authority it was no decision at all. Another thing was, that every Member of the Board signed the Report, as though the whole of them were of the same opinion. That was not fair; it was not fair to the other party, because it tended to make it appear that the party had been defeated by the unanimous voice of the Board. It was not fair to the House of Commons, whose opinions it was intended the Board should aid, because it tended to show them what was contrary to the fact—namely, that all the five Members, or four Members, as the case might be had all agreed; whereas they had differed by the smallest and narrowest, majority of three to two, and by no majority in other cases without the casting vote of the Chairman. Nothing was more improper and unnecessary than that such a rule should be laid down by the Railway Board; nothing could be more unsatisfactory. He might be told that it was the common course, that the Admiralty orders and the Treasury orders were signed by the whole of the Members of the respective Boards, as if they were all agreed. Why, in the first place, he had never heard that there was any tendency to a difference of opinion in those Boards; he had always believed them to be a very reasonable, tractable set of people. But in the second place, what possible similarity was there between the Railway Board, which was a tribunal to give 1102 an opinion upon facts laid before it, and those Boards, who merely signed an executive order? No doubt orders for a ship to sail, or a regiment to be set in motion, were given unanimously. But in the other case it might just as well be said that a judgment was unanimously given by five lawyers, three being of one opinion and two of another. Therefore he held this constitution of the Board to be eminently little calculated to attain the object intended. He should abstain from entering into other topics; but he must not omit to notice the secrecy of this Board giving rise to speculation, or gambling, or even to actual jobbing, or at all events to great suspicion of jobbing; and they would never eradicate that from men's minds as long as that tribunal was secret. In an open court all that passed would be seen by every one. No man could run into society and entrap his neighbour, and influence the market by what he had picked up with respect to the probable disposition of the Board. No man could then cheat another—for really it amounted to cheatery—of his property by false reports. No man could overreach his neighbour in the purchase, and sale, and traffic of shares. No doubt the tendency of an open court would be to lead to much greater delay than a secret court would. But perhaps the delay would be wholesome; perhaps the rapidity was bad. Perhaps the greatest mischief was done through the public not being in full possession of the proceedings of the Board. The constitution and practice of the Board would probably be found very much to have diminished the effect of its operations—to reduce greatly the value of the industrious labours of the Board. He praised its Members, but he blamed its construction. He was sorry to say that so much of their labours, as to the result, might be found to have been thrown away; because it had got abroad that the inviolability of the Board was not such as was expected at first; and he thought it would be found in many cases that those Bills which had been adopted by the Board had been rejected by Parliament, and those which had been rejected by the Board succeeded elsewhere. Therefore the labours of the Board had only been an impediment to public business, and did not expedite it. To a certain degree the evils of the present railway system were attempted to be met by the Bill before their Lordships. But, besides the defective constitution of the Board, there were other great mischiefs—the increase 1103 of speculations in railway shares, the frenzy of gambling in railway projects. He could not help thinking that the manifest disposition of Parliament to encourage all these speculations was very much to blame for the spreading of this delusion. That, indeed, was his objection to the Bill, pregnant as it certainly was with some good in expediting railway business. For the purpose of enabling Railway Bills to go on by wholesale and at railway speed, the Government brought forward Bills of this extraordinary kind, the House was to pass one Statute with 150 clauses, and another (the Lands Clauses Consolidation) with nearly as many, methodizing, systematizing, reducing actually into a code, the principles of constructing these acts, giving systematic powers and facilities to projectors, taking away in the same systematic mode the rights of private property, and facilitating and quickening, (so to speak) by a sort of corpus juris, a code of railway legislation, the passing of Bills to conflict with, upset, subvert, and confound all the rights of private property; and what was the natural conclusion? Either that locomotion was by far the most important of human concerns; that railways were the breath of the community, without which we could not exist; that they were "like the air we breathe—if we have them not we die;" or that, whether they were or not, and without inquiring whether they were or not, Parliament was resolved to encourage, by every means in its power, the passing of Railway Acts—that is, to encourage railway speculation. That was the inevitable conclusion, for, if only half-a-dozen or twenty were to pass in a Session, it would be wholly unnecessary to have such a railway code. Then, after lending itself to this mania, could the House complain or wonder if the people gave into it, if speculation was rife, if share gambling covered the whole length and breadth of the land? Or could their Lordships blame—could they do other than pity their fellow countrymen, and recollect who it was that helped to prompt them to it; who it was that, instead of mitigating it, increased it; instead of applying a remedy by giving time—the great curer of all these delusions—brought into one or two years the projects that might have been spread over several? When the reaction should take place, when the money market should be in a state of convulsion (such as it had been in with infinitely less speculation), must not Parliament blame itself 1104 that it had encouraged, almost created, or at least done nothing in its power to mitigate, or relax, or extinguish this passion, and therefore, in part, been the cause of those fruits that would be reaped probably somewhere about December or January next? His opinion had always been (though he blamed no Government) that it was very unfortunate that we allowed our neighbours in France to be so much ahead of us in the sound mode of dealing with these questions; for there the Government, though not without great opposition, in a manful and statesmanlike fashion, insisted on taking the matter into their own hands, allowing very few railways for some time, and then only leasing them for forty-five years, or thirty-five, or less, after which they were to revert to the public, who might renew the lease on condition of lowering the fares, or on other advantageous terms. Under proper limits these enterprises were of the greatest possible advantage, no doubt; but as far as this mania went, they ought not to be encouraged. He had lately gone into the subject of the hardship to private property—the manner in which men's rights to their ancient possessions were set at nought, and he had really some heart-breaking cases from poor persons, who were trampled upon by these companies, having no means to resist. Since his last notice of this, some of the parties, wealthy proprietors, had found no longer the same indisposition to come to terms, but the poor could be safely threatened and oppressed; though to the credit of some honourable persons to whom he had alluded, they refused to avail themselves of the offer to keep the railway further off, when they found that it would thus be carried through the gardens of some cottagers. One gentleman they treated in this way—and it was a common device with these companies; they said: "Our railway can pass through a corner of your kitchen garden; but if you do not oppose us we will only go through your avenue, or a piece of your pleasure ground." Under the threat of cutting off a leg, a man was expected to let his hand be cut off, to save the more important limb. An aged clergyman found one of these railways was actually to overshadow his library and study; being only an incumbent for life, he must sit down with it. Another, an incumbent under 300l. a year, could not throw away any money in resisting a powerful company, who carried all before 1105 it. But the clause which he must single out as the most objectionable, as systematizing injustice in the most marked manner, was the 32nd Section of the Railway Clauses Consolidation Bill; such powers might be given in some road acts, but now they were to belong to all Railway Companies. It provided that it should be lawful for the company, at any time before the period limited for the completion of the railway (as if it were not nuisance enough to have the works going on for two or three years, and all sorts of labourers brought into the neighbourhood), when so ever they pleased, without making any previous payment, tender, or deposit, to enter upon any lands within the prescribed limits; or if no limits were prescribed (and they never would be hereafter), then upon any land within 200 yards from the centre of the railway, not being a garden, orchard, avenue, and so on, and not being nearer than 500 yards to the mansion house of the owner, and to occupy the said land so long as might be necessary for the construction or repair of the works, for any of the following purposes:—for taking earth or soil from side-cuttings, for obtaining materials there from for the construction or repair, for forming road thereon to or from or by the side of the railway, and also to manufacture materials (as if a brickground would be a very pleasing and savoury appendage to a gentleman's country house), and to dig and take from out of such land, clay, gravel, &c., and to erect thereon workshops, sheds, and other buildings of a temporary nature. This power was to extend to 200 yards on each side—a quarter of a mile broad all along the line; and if, as he had observed the other night in the case of the farm in Essex of 200 acres, through which seven railroads were to be run, the whole of it would be absorbed. Such were a few of the consequences of the Legislature determining to pass Railway Bills by wholesale and without stint, for the purpose of gratiying the propensity of the public—a propensity largely shared by the two Houses of Parliament—largely shared (it was always more agreeable to name the present than the absent)—largely shared by their Lordships' House. It would be unjust to omit, in reference to the clause just noticed, that compensation was to be paid for the damage actually done, but nothing more. It was to be assessed by arbitrators — a very great improvement upon the system of going before juries; and for this mitigation of the despotism he 1106 tendered his thanks. In some cases, however, the question of relief was to be decided by two justices acting for the county, giving the company the power of going to any justice for the county that they pleased—a very objectionable provision; for, while he (Lord Brougham) should have full confidence in the justices in his neighbourhood, at Penrith or at Carlisle, he should have no knowledge of and no confidence in justices selected from Whitehaven, or some other remote part of the county; it was like another county. Surely, a company asking for these powers should have made up their minds to the direction in which they proposed to carry their line, and not have power to deviate 100 yards on either side. Why should they not be compelled, if they deviated, to do it with the consent of the owners of the land? This power to change placed the landowners at their mercy. He meant to propose a clause, providing that no company, having once obtained permission to make a certain line, should be allowed to deviate more than twenty yards on either side—that was the very utmost they ought to be allowed. It was satisfactory to him (Lord Brougham) to know that his recent cautions had not been without use; but he had thought it right to make these further observations.
The Earl of Dalhousiesaid, that since he had introduced the measure then under consideration in their Lordships' House, his noble and learned Friend, who had just sat down, had occupied much of the time of the House with the subject of railways. His noble and learned Friend had delivered a long and eloquent address that evening, but how much of it was applicable to the question before the House he (Lord Dalhousie) would leave it to their Lordships to determine. As far as he could form an estimation of his noble and learned Friend's speech, he would say that his noble and learned Friend had dwelt for somewhat about three-quarters of an hour in complaints against the Railway Department of the Board of Trade, for another quarter of an hour or upwards in a lecture against what he termed railway gambling, and for about ten minutes on the subject before the House. The address of the noble and learned Lord was, indeed, "a pennyworth of bread to a huge quantity of sack." He should, therefore, with great respect for their Lordships' House, and certainly with no feelings of disrespect towards his noble and learned Friend, beg leave to decline entering into all the subjects which the noble and learned 1107 Lord had brought under their notice. At the same time, in order that no misapprehension should exist in their Lordships' mind, or should go forth to the public, in consequence of his silence on what he believed to be the irrelevant topics introduced by his noble and learned Friend, he would venture to remark that of all the facts put forward by the noble and learned Lord in the course of his speech, there was, perhaps, but one alone, namely, the fact of which the noble and learned Lord had thought it necessary to assure them, that there were but twenty-four hours in the day, to which he could give his unqualified assent. His noble and learned Friend had stated, as a fact capable of proof, that the Railway Department of the Board of Trade, in coming to their decisions on the various schemes submitted to them, had heard only one side of each case. To that assertion he should give the most distinct and the most positive denial. The noble and learned Lord said also, that the Board received the statements from which they formed their decisions from the projectors of the railways only; that he should also deny. It was true the Railway Department of the Board of Trade did seek interviews on the subject on which they were to decide; but when they were first appointed, a public intimation was given that the Board were ready to enter upon the question of all railway schemes, that they were ready to proceed with the consideration of these schemes with reference to certain points. Immediately after that notification applications were made to them by various parties for interviews, but in no one instance did the Railway Board seek such interview themselves in the first place. He could also add, that in no one instance, as far as he was aware, had the Board denied any interview that was demanded of them, unless a previous interview had been had. These interviews were not confined to the projectors of the railway schemes alone, as his noble and learned Friend had sought to insinuate, or rather as he had directly alleged, but they were open to all parties demanding them. The Board had certainly objected to hear parties who were anxious to oppose particular lines or companies on private grounds, as they were precluded from entering upon such matters; but they always told those parties that if they had any objection to make against the scheme on public grounds, they were quite ready to hear them. It must be perfectly clear to the House, for it never had been concealed, that it was 1108 not on the personal communications received at these interviews that the decisions of the Board were founded. It was always admitted that the substantial decisions of the Board were founded on the written communications which were laid before them, and on which they had time to deliberate, and separately to form their opinions. When, therefore, his noble and learned Friend asserted that objections were entertained by the Railway Board to receiving information from any parties, it was clear that he had been misinformed, and that whoever he had received any such information from must have been altogether wrong. Interviews with the Railway Board were open to all who demanded them; and so far from the decisions of the Board being founded on information received from one party only, he was not aware of a single case in which a railway had been objected to where written statements had not been offered on both sides, where the fullest information had not been sought, where the utmost consideration had not been given to all the evidence laid before them, and where a partial decision had ever been arrived at by the Board. With respect to the charge made by his noble and learned Friend, that the existence of the Board had given rise to railway speculations which otherwise would not have arisen, he begged altogether to deny its accuracy. That much speculation in railway shares existed, nobody could deny; but he denied that the desire for speculation was increased by the existence of the Railway Board. He should even contend that but for that Board speculation would have proceeded much further than it had already gone. Every one acquainted with the subject was aware that before that Department of the Board of Trade had been formed, speculations in railway shares were as rife as at any period since. It was well known, for instance, that a few years ago speculations were carried on in the scrip of the shares of the Brighton Railway Company while that case was before Parliament. He should deny, therefore, the accuracy of the opinion that the existence of the Railway Board had any effect in increasing speculation in railway schemes. On the contrary, in his belief, it tended materially to check, instead of encouraging, speculation. But his noble and learned Friend seemed to imply that not only did the Board foster speculation, but that speculation of a peculiar character went on, because partial information was promulgated of the decisions of 1109 the Board before those decisions had been publicly made known. That was a matter which had been before alluded to in their Lordships' House, as well as elsewhere. There were one or two points stated on that subject in another place on which he would wish to offer some explanation; but he would confine himself to what had taken place in their Lordships' House. His noble and learned Friend had stated that the institution of the Board was calculated to raise partial speculation.
The Earl of Dalhousiesaid, the noble and learned Lord attributed partial speculation either to the constitution or to the institution of the Board, or else to their carelessness in the transaction of business.
The Earl of Dalhousiehoped the noble and learned Lord would give him leave to proceed with the remarks which he had to offer to the House. His noble and learned Friend, at all events, thought that there had been partial decisions made by the Board; and he had also adverted on a former occasion to partial revelations having been made, by persons connected with the Board, of the decisions to which they had afterwards arrived. He had, therefore, a right to refer to that subject; and he had also a right to require that he should be furnished with specific allegations of the cases in which that partial revelation was alleged to have been made. Until these special allegations were made, he could do no more than again give a general and positive denial to the statements. There were three cases in which complaints of this nature were made. One of these was the South-Eastern scheme. It was alleged that, in consequence of an improper revelation, holders of the stock of the company had been injured; but on that point he had already given a full explanation. Another case was that of a certain shadowy individual, who somewhere, and at some time, had made a sum of 40,000l. by means of a similar revelation. But who that person was, what was the company, or how, when, or where the transaction had taken place, he had never heard declared; and until the case came before him in some specific shape, he had a right to say that the charge against the Board was unfounded. There was only one other instance in which such a complaint was made against the Railway Board, and that was in the case of the London and York and the Direct Northern 1110 schemes. For weeks before any Member of the Board had formed an opinion on the matter, an alleged decision of the Board was announced in the public journals. The rise in the price of shares took place in the afternoon of Monday, the decision of the Board being made on the Tuesday. A rise in the shares of one line, and a fall in the stock of the other line, certainly did take place at that time; but as he before stated, that circumstance was to be attributed not to any knowledge of what the decision of the Board would be, but from a coalition having been just formed between the Direct Northern and the Cambridge and Lincoln lines. Even his noble and learned Friend admitted at the time he gave that explanation before, that it was sufficiently satisfactory. But while he thus alluded to these charges, he should altogether refuse to notice, to argue, or to be judged by any vague allegations, not founded on facts, or brought forward in a tangible and satisfactory manner. Without occupying their Lordships' attention farther with these matters, he would beg leave to express a wish that if his noble and learned Friend did really mistrust the constitution of the Railway Board, he would proceed to bring the matter to an issue by moving a direct Motion upon the subject. His noble Friend said there were only twenty-four hours in the day, and but five Members on the Board, while there were some 248 railway schemes to be decided upon by them; and he then proceeded to show by the rule of three it was impossible they could devote more than a certain time to the consideration of each; and impossible also that the Board could come to a sound conclusion. But in reply to his noble and learned Friend, he would ask the House to wait until the Reports of the Board were put to the test of the Parliamentary Committees. When that was done, he would be then himself the first to ask their Lordships to decide how far the Board required any excuse or censure. He would not attempt to detain their Lordships by a description of the manner in which business was done by the Board when the flood of Railway Bills came upon them under the most unfavourable circumstances. He would defer entering upon any explanation of that matter until the conclusion of the Session, after the decisions of the Committees on these same Bills would be made known. He would next proceed to consider the two principal points to which his noble and learned Friend had adverted. The first was the 1111 objection which he had raised to the 32nd Clause, which gave power to companies to take temporary possession of land within a certain distance of the railway. His noble and learned Friend formerly held very different language. But if his noble and learned Friend wished to take credit for the very strong expressions which had fallen from him on a former occasion upon this subject—if he wished to take credit for the desire which he at one time expressed in such eloquent terms, that he might see the country yet covered with a network of railways, he should afford the necessary means for their construction. The noble and learned Lord claimed the merit of still adhering to that opinion of the utility and importance of those great works, and he, therefore, did not object to railways in the abstract; but he at the same time took care to object to the construction of every particular railway in detail. Surely, if his noble and learned Friend took away the only clauses by which a company could be enabled to construct a railway, it was no use to express his approval of the principle of railways generally. His noble and learned Friend said he would agree to the formation of a company to make a railway from London to York; but he would take care that they should not have a barrowful of clay or a cartload of gravel for the construction of the work. His noble and learned Friend was, in fact, a worse than Egyptian taskmaster. Others were content to out-Herod Herod; but his noble Friend emulated the hardships and unreasonableness of a darker and more barbarous age. He not only out-Heroded Herod, but he out-Pharaohed Pharaoh. The persecutor of the Israelites refused that oppressed people straw, while he compelled them to furnish bricks; but his noble and learned Friend said, "You are to construct railways, you are to erect bridges and viaducts along the line, but you shall have neither bricks, nor clay, nor stones, nor gravel." But these clauses to which his noble and learned Friend objected were not new. They stood in almost every Railway Bill that had been passed up to the present time, not identically in the terms in which they appeared in the present Bill, because alterations had been made in them: they had been improved, and these alterations and improvements were, every one of them, in favour of the landed proprietors. His noble and learned Friend did not enter fully into the terms of the clauses to which he had referred. He did not state the disadvantages 1112 under which the railway companies would be placed. It was true that a power was given them to take temporary possession of land, but they were obliged to give notice of their intention of doing so to the proprietor; and if the latter objected, on the grounds of these lands being essential to him in order to the enjoyment of other lands belonging to him, or that other lands lying contiguous or near the lands proposed to be taken, would be more fitting to be used for such purposes by the company, then it was in his power to go before two justices, who were authorized under the 31st Section of order that the lands and materials shall not be taken; and by the subsequent section it was provided that the justices shall have power to order the company to take possession of other lands, even if belonging to a different proprietor, provided they are not at a greater distance than the prescribed limit of 200 yards from the works. His noble and learned Friend had, indeed, made an objection with respect to the justices to be selected, which would be most singular coming from any noble Lord, but which was extraordinary indeed when proceeding from a judicial Member of their Lordships' House. His noble and learned Friend complained of the company not being obliged to go before any two justices residing near the proprietor who complained against them, but having a right to call for the decision of justices living in another part of the county, who know nothing about the proprietor, should they think proper to do so; and thus it would appear that his noble and learned Friend had put forth the strange opinion that no such tribunal would be satisfactory to him unless he could secure for himself a partial judge. But to return to the clause to which his noble and learned Friend objected. One of his objections was, that the company were not bound to make any tender of compensation in the first instance; but by the 34th Section the company were obliged—
Before entering, under the provisions hereinbefore contained, upon any such lands as shall be required for spoil-banks or for side-cuttings, or for obtaining materials or forming roads as aforesaid, the Company shall, if required by the owner or occupier thereof, seven days at least before the expiration of the notice to take such lands as hereinbefore mentioned, find two sufficient persons, to be approved of by a Justice in case the parties differ, who shall enter into a bond to such owner or occupier in a penalty of such amount as shall be approved of by such Justice, in case the parties differ, conditioned for the payment of such 1113 compensation as may become payable in respect of the same, in manner herein mentioned.And the 36th Clause went on to provide, that—In all cases in which the Company shall, in exercise of the powers aforesaid, enter upon any lands for the purpose of making spoil-banks or side-cuttings thereon, or for obtaining there from materials for the construction or repair of the railway, it shall be lawful for the owners or occupiers of such lands, or parties having such estates or interests therein as under the provisions in the said Lands Clauses Consolidation Act mentioned, would enable them to sell or convey lands to the Company, at any time during the possession of any such lands by the Company, and before such owners or occupiers shall have accepted compensation from the Company in respect of such temporary occupation, to serve a notice in writing on the Company, requiring them to purchase the said lands, or the estates and interests therein capable of being sold and conveyed by them respectively; and in such notice, such owners or occupiers shall set forth the particulars of such their estate or interest in such lands, and the amount of their claim in respect thereof; and the Company shall thereupon be bound to purchase the said lands, or the estate and interest therein capable of being sold and conveyed by the parties serving such notice.The Act further provided, that—In any of the cases aforesaid, where the Company shall not be required to purchase such lands, and in all other cases where they shall take temporary possession of lands by virtue of the powers herein or in the Special Act granted, it shall be incumbent on the Company, within one month after their entry upon such lands, upon being required so to do, to pay to the occupier of the said lands the value of any crop or dressing that may be thereon, as well as full compensation for any other damage of a temporary nature which he may sustain by reason of their so taking possession of his lands, and shall also from time to time during their occupation of the said lands pay quarterly to such occupier or to the owner of the lands, as the case may require, a rent to be fixed by two Justices in case the parties differ.The same section also provided, for the payment of compensation by the company, for all permanent or other loss, damage, or injury sustained by the lands, including the full value of all clay, stone, gravel and sand taken from such lands. If his noble and learned Friend did not object to railways in the abstract, and if he once admitted the principle of giving compulsory possession of land to railway companies on payment of full compensation for it, then he (Lord Dalhousie) could see no ground for opposing the sections to which his noble and learned Friend now objected, and without 1114 which it was impossible the company could proceed. His noble and learned Friend did not state the full extent of the improvements made by the present Bill. Formerly, landowners had only power to go before a jury; but now they had the exclusive right of selecting whether their case should be decided by a jury or by arbitration, or they might, by remaining away altogether, leave the amount of valuation to be settled by a surveyor; and afterwards, if they found cause to be dissatisfied with the surveyor's return, they could even then revert to arbitration. That great powers were given by the Act he did not deny; but he justified those powers by the necessity which existed for them, as the only means of carrying into effect a great project which the Legislature permitted to be undertaken. His noble and learned Friend next objected to the limits of deviation allowed to the companies. He said he could see no reason why the company should not lay down the precise line they meant to take at once, and be ever after barred from any deviation from it. He thought he could state many cases where such a restriction would impose hardships on the owners of the land themselves; and though the noble and learned Lord would allow of deviation by consent in particular cases, still he (Lord Dalhousie) had doubts how far such consent could be acted upon after the Legislature had pronounced a decision in the matter; and besides, though the parties in possession might be induced to consent to the deviation, those who would be entitled to the reversion of the property might very probably object to it. But there was one principal objection which he had to offer to the proposition of the noble and learned Lord, and that was, that it did not allow the promoters of the railway to come upon the land and survey it in the first instance. [[Lord Brougham: But they do come.] It was true that they did come upon the land, but they did so at the risk of committing a trespass, and suffering for it. In a case well known to the noble Lord, there was at this moment a party resting in tranquillity in one of the gaols of the country for a broach of the law in that respect; and a case had been brought under his notice within the last few days, where parties had been warned against surveying lands over which it was proposed that a railway should pass, in the northern part of the Kingdom. This prohibition would prevent the survey of some thirty or thirty-five miles; and he need not tell some noble Lords present that his noble Friend who had forbidden the survey 1115 was not the man to allow his prohibition to be disregarded; and that any surveyor attempting to act in despite of such an order there, would very probably find himself some morning planted with his head downwards in the midst of a peat bog. Without entering into the question of the propriety of the law by which landowners could prevent the promoters of railways from surveying their lands, it was clear that while such a rule existed it was impossible for the Legislature to bind companies down to a precise line without any power of deviation whatever. He did not wish to occupy, unnecessarily, a single moment of their Lordships' attention, and he would, therefore, at once conclude with the hope that their Lordships would not be induced to imagine that by getting rid of the clauses to which the noble and learned Lord objected, they would hear no more about them, as in such a case they should be prepared to encounter a discussion upon them in every single Railway Bill that came before them.
§ Lord Ashburtonsaid he wished to offer a few observations to their Lordships on the Bill then before them. The questions of the policy of constructing a particular railway, and of the powers to be given to railway companies, were undoubtedly of the greatest importance; but still these questions had not much to do with the construction of that Bill. In adopting the measure then before them, their Lordships would pledge themselves in favour of no particular line. All they did was to bring into one general Act the provisions which would otherwise be of necessity introduced into everyone of the special Acts that would come before them. His noble Friend had stated the provisions of the Bill with much ability, and had left very little of its advantages untold. As a Member of a Board that had been so much attacked, it was not to be wondered at that his noble Friend should feel rather warm in replying to the charges made against it; but his noble Friend should be prepared for those attacks. He should recollect that it was quite natural that gamblers who had been foiled in their speculations, and the promoters of all the lines that the Board had reported against, should unite to form a numerous party of disappointed opponents of the Board. When the principle followed in the construction of railways in Belgium and parts of Germany, or even in France, had not been adopted in this country, he could 1116 not see by what possibility they could guard against the desire for speculation which prevailed among the public. His object in addressing their Lordships on the present occasion, was to draw attention to some of the provisions of the Bill, which, he thought, ought to be extended. Their Lordships were aware that the Bill was intended to apply to all future railways to be hereafter executed; but he thought many of its provisions should have a retrospective as well as a prospective effect. For instance, in the 83rd Clause it was very properly enacted that—
Whereas it is expedient that the Company should be enabled to vary the Tolls upon the Railway, so as to accommodate them to the circumstances of the traffic; but that such power of varying should not be used for the purpose of prejudicing or favouring particular parties, or for the purpose of collusively and unfairly creating a monopoly, either in the hands of the Company or of particular parties; it shall be lawful, therefore, for the Company, subject to the provisions and limitations herein and in the Special Act contained, from time to time to alter or vary the Tolls by the Special Act authorized to be taken, either upon the whole or upon any particular portions of the Railway as they shall think fit; provided that all such Tolls be at all times charged equally to all persons, and after the same rate, whether per ton, per mile, or otherwise, in respect of all passengers, and of all goods or carriages, of the same description, and conveyed or propelled by a like carriage or engine passing only over the same portion of the line of Railway under the same circumstances; and no reduction or advance in any such Tolls shall be made, either directly or indirectly, in favour of or against any particular Company or person travelling upon or using the Railway.He knew nothing that was more essentially just than such a provision; but why, he would ask, was not that principle extended to railroads generally? He could state to their Lordships that a railroad which passed through his part of the country, namely, the South-Western, made, to his own knowledge, a different charge for one person from what was adopted towards another. It was most objectionable that any railway company should have the power of treating in a peculiar manner the owners of steam-boats, or of wharfs, or other persons connected with the carriage of goods, and thus acquiring a greater power of monopoly than there could be any necessity for extending to them. Another clause, which compelled the repair of railway works should also, he 1117 thought, be extended to all railways. He would wish, likewise, to see a clause adopted for regulating the transmission of felons and lunatics by railway. He had been lately informed by a person who had been travelling on a railway, that in the same carriage with him were two men, who were chained together, in the act of being transmitted from one gaol to another. Lunatics were also conveyed to lunatic asylums in the same carriages with other passengers, and he would, therefore, wish to see a clause adopted, obliging all railway companies to provide a particular carriage for the conveyance of felons and lunatics.
§ The Duke of Beaufortsaid, that he did not go quite so far as his noble and learned Friend (Lord Brougham) in condemning the proceedings of the Railway Department of the Board of Trade; but he thought that his noble and learned Friend was justified in some of his observations respecting that Board. He did not wish to give any offence to the noble Earl, but he should say that the constitution of that Board had been unfortunate in its results. It was believed that the Board had been instituted with a view to protect the public, and yet it was very doubtful whether it had attained that object. Reports had gone abroad respecting the opinions of that Board; and there was no doubt but railway speculation had in consequence very much increased. He did not mean to say that any improper revelations had been made by the Members of the Board; but persons had gone about stating that the Board had come to such and such decisions; and the consequence was that different railway shares had risen very rapidly. The solicitor for the projectors of a certain railway had on one occasion stated to him, that the line for which he was engaged had met with a direct encouragement from the Board of Trade, and that they would not sanction the competing line. The consequence of such statements was, that shares had been suddenly and improperly raised in value.
The Earl of Winchilseasaid, he believed that the public were in general satisfied with the Reports of the Board of Trade; and he was sure that those Reports would be found most valuable. He agreed with the noble Earl (the Earl of Dalhousie) that those Reports could not have contributed to increase speculation. The country was greatly indebted to the Board for the very able manner in which they had conducted 1118 their investigations; and he, for one, should be disposed to give the most favourable consideration to their recommendations.
Lord Campbellsaid, he did not then wish to enter into the merits of the Railway Department of the Board of Trade. With regard to the Bill then under their consideration, he should say that he highly approved of it, because it would introduce a uniform code which would much diminish the labour and expense of passing Railway Bills. He believed that the clause to which his noble and learned Friend (Lord Brougham) had objected, would be indispensable in carrying on any railway undertaking. But he wished to draw the attention of his noble Friend to the absolute necessity of his introducing a further measure, which would embrace, among other matters, those improvements to which a noble Lord, not then in his place (Lord Ashburton), had alluded. He thought it was most desirable that companies should have a uniform rate of charges, so that the public should not be subject to their tyranny or caprice. He had himself presented a petition in which it was stated that a railway company charged passengers very highly, while it would carry goods almost for nothing, in order that it might ruin a canal company. Now, there ought, in his opinion, to be some provision passed for putting an end to such a system, and for protecting canal companies from the oppression to which they were at present subjected. The matter, however, to which he wished particularly to draw their Lordships' attention was the tyranny which several of the most important and influential companies had practised, by giving notice that they would not be liable for any damage that might be done to carriages put upon their railways, even through the negligence of their own servants. [Lord Stanley said he doubted whether it could be lawfully carried into effect.] He believed that if it could be shown by the company that they had given such a notice, that would be for them a complete defence. But he thought the law in that respect ought to be altered, and that such conduct on the part of railway companies ought not to be endured. He hoped that his noble Friend would consider the whole question, and that he would make the existing railway companies the subject of future legislation.
Lord Broughamreplied. His statement 1119 against the constitution of the Railway Department of the Board of Trade was, not that parties opposed to any projected railway—as in the case of the South-Eastern line, for instance—would not be heard, but that the fullest evidence would not be permitted to be received in order to enable the Board to come to a just conclusion on the merits of any case before them. If he was wrong in the idea he formed, he must have forgotten the printed Report, on the recommendations of which it was proposed to establish this Railway Board. He always understood that it was generally the statements of companies themselves, or persons interested in and actively engaged in forwarding those railway projects, which were received by the Board. But it was said he was wrong; and if so, he begged to tender his apology to the Railway Board for any charge he might have made against it; but, nevertheless, he could not avoid expressing his disapprobation of the constitution of any tribunal which did not hear all the evidence which it was possible to produce on both sides of any question which might come before it for decision; and he denied that the functions of such a tribunal could ever afford any practical assistance to Committees of either House of Parliament. Another evil in the constitution of the Railway Board was, that it was a secret tribunal—that the public were not admitted to witness its deliberations and acts. The noble Earl opposite (the Earl of Dalhousie) did not seem fully to understand the nature of his (Lord Brougham's) objections to the Board over which he presided. Did not the very fact of its sittings being secret tend more than anything else to promote speculation, and gambling, and jobbing, and fraud? If they had a public Board, could any man go to the City and say he had private information that such or such a scheme would be favourably reported on, that such a project would be successful? In the statement which he had made that evening, he had not made the slightest possible reference to any of those three cases of complaint against the Board alluded to by the noble Earl, wherein it was said that certain stocks had been materially influenced in their price in consequence of information transpiring relative to the conclusion come to by the Board. But as the noble Earl had thought proper to mention those cases again, and drag him (Lord Brougham), as it were, into the discussion of them, he confessed he did not feel at all satisfied with the explanation 1120 given by the noble Earl on that occasion. Of a certain shadowy, mysterious individual who had made 40,000l., to which the noble Earl had adverted, he (Lord Brougham) confessed he had never heard before that night, and therefore he would say nothing about that case. But with respect to the Northern line, to which the noble Earl also alluded, in the case where the fact of one line having coalesced with another caused a rise in the price of the stock, he would observe, that in consequence of the explanation given about it by the noble Earl, he (Lord Brougham) had thought it right to refer again to the individual who had previously given him some intelligence on the subject; and on going to his informant accordingly, who was one of the most respectable capitalists in the City, that gentleman assured him that the answer and explanation given by the noble Earl was only the outside answer, or the one for the public; but, nevertheless, that the fact was as he had originally stated—namely, that information had been somehow obtained from the Board. He did not mean to say that any gentleman connected with the Board had given any intimation, or allowed any evidence to transpire; but still, observing all the facts of the case referred to, and considering the distance from town of the place where the influence acted, he did think it was most possible that some knowledge had been somehow obtained. But there were many ways in which a knowledge might be obtained which would lead to those gambling speculations. Even a gentleman, in making the necessary inquiries upon any case, might furnish to an acute mind a suggestion of the probable course the Board might take, and that without the individual in question ever intending to reveal the conclusion he had come to or might be arriving at; and that was one of the objections he made to the constitution of the Board. But even Cabinet questions were not always so perfectly secret as might be supposed; for even these secrets, too, sometimes transpired. As a proof of that, he instanced the fact of his having discovered, by a chance visit which he paid to a friend in 1806, a certain clue to guide him to the result to which certain negotiations then going on between this country and Napoleon were tending, there having been in existence at the time great uncertainty with regard to two foreign points on which it was supposed the negotiations in question would hitch. The 1121 noble and learned Lord then related an anecdote of his having called upon Sir William Drummond, who was a particular friend of Lord Sidmouth, one day, just as the former was in the act of sending off to the latter a map of a part of the Adriatic; and that circumstance led him (Lord Brougham) at once to conclude on what locality the negotiations then pending would hitch.] With respect to the great powers given to railway companies by the Bill before the House, he thought it would be better to adopt the suggestions he threw out. The consequence of such might indeed be, that one or two Railway Bills less would pass this Session, or might pass hereafter; but that bethought a grievance of considerably less magnitude than the systematic encroachments which were now making every day upon private rights and private property. With respect to the deviation question, he thought the defence set up for that was most speculative and fanciful—namely, that the agents or surveyors of parties interested in any projected railway could not get access to the property, in many cases, through which the line was to run, and that, therefore, they could not be tied down to a strict line. Now, he had never heard of but one case in which legal proceedings had been taken against individuals on this account; and that was in the case of Lord Harborough. But it was notorious that parties would not be deterred by any threats from pursuing their visits and surveys of property. It was only a short time since he had presented a petition from a nobleman in Yorkshire, who stated that his tenants warned off some surveyors who had come upon his estate, but that the latter persevered, notwithstanding, in pursuing the surveys. Another point to which he had to refer was, the assertion made by the noble Earl that he (Lord Brougham) had, some fifteen or sixteen years ago, expressed a hope that railways should cover the land. He still hoped to see railroads multiplied over the country, and to see that most useful and highly beneficial mode of communication greatly increased to what it now was. But was that any reason why he should wish to see it all done in one day, per sallum as it were, and not considerately and progressively? He wished to see it done; but let it be done so as not to violate principle. Let it be done with caution, and deliberately, and in such a manner that the rights of property should not needlessly be violated. If the whole 1122 two hundred railways which had been brought forward that Session had been spread over ten or twelve Sessions, it would have been far better for the country, in a monetary as well as in a commercial point of view, and it would have avoided all the risks and all the gambling which had swept over the face of the country.
§ Bill read 3a.
Lord Broughamproposed to add a clause to the effect, that no company should be suffered to deviate in any line above twenty yards from the line they might be authorized to take, unless by an agreement with the owner or owners of the land over which such deviating line was proposed to be carried; provided always, that such a clause should not apply to the owners of property who had needlessly refused to allow the projectors of the railway to enter upon the property for the purpose of making surveys and valuations; also a clause similar to that in the Scotch Bill, regarding compensation to be given to creditors of turnpike trusts.
§ After a few words from the Earl of Dalhousie, — clauses negatived, and Bill passed.
§ House adjourned.