RAILWAY AND CANAL TRAFFIC REGULATION BILL. (Hansard, 30 May 1854)

LORD CAMPBELL
said, he deemed it his duty again to enter his protest against this Bill. He had been in hopes that upon further consideration the objections to the Bill which presented themselves to his mind in the first instance would have been obviated when he came to consider it more maturely; but he was sorry to say that the opportunity for reflection had strengthened instead of weakening them. Since he last addressed their Lordships on this subject he had had an opportunity of consulting many of his learned brethren on the bench respecting it. His learned brethren and himself were willing to undertake any duties which the Legislature might impose upon them; they would set an example of obedience to the law, and of respect to the Legislature; but having consulted the Judges at a meeting they had had upon this subject, they were unanimously of opinion that the duties which they were asked to undertake under the provisions of this Bill were not judicial duties; and the great majority of them stated they were not properly competent to perform those duties. That those were not judicial duties he thought there could be no question. Ordinarily, a Judge had to interpret the law, and the law was placed before him for that purpose; but by this Bill no law was laid before the Judges which they could interpret or enforce. The code which the Judges had to interpret and enforce under this Bill was stated thus— That every railway company, canal company, and railway and canal company, shall afford all reasonable facilities for the receiving and forwarding of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles; and no such company shall make or give any undue or unreasonable preference or advantage to or in favour of any particular person or company, or any particular description of traffic in any respect whatsoever; nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever; and every railway company and canal company, and railway and canal company, having or working railways or canals which form part of a continuous line of railway or canal, or railway and canal communication, or which have the terminus, station, or wharf of the one near the terminus, station, or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving 1137 by one of such railways or canals by the other, without any unreasonable delay, and without any such preference or advantage, or prejudice or disadvantage, as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways or canals, or railways and canals, as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the several companies, be at all times afforded to the public in that behalf. That was not a code which the Judges could interpret; it left them altogether to exercise their discretion as to what they might deem reasonable. They were, besides, to form a just judgment on all matters of complaint relating to railway management that might come before them; and they were to lay down a code of regulations for the government of railway companies. The Judges, and himself among them, felt themselves incompetent to decide on these matters. He had spent a great part of his life in studying the laws of his country; but he confessed he was wholly unacquainted with railway management, as well as the transit of goods by boats; he knew not how to determine what was a reasonable fare, what was undue delay, or within what time trucks and boats should be returned, He believed he had correctly represented the feelings of all his learned brethren on the bench in reference to this Bill, with one exception, whom he mentioned with honour, respect, and reverence—he meant the learned Chief Justice of the Court of Common Pleas, than whom there was no Judge on the bench more zealous or more efficient; and that learned Judge, whilst he agreed in thinking that these were not judicial duties, had no doubt that his brethren on the bench would be able to work the Bill properly. He (Lord Campbell) would humbly suggest that if the discharge of the duties imposed by the Bill should devolve on the Court of Common Pleas, where there were Judges as learned and efficient as ever sat in Westminster Hall, it would give satisfaction to the country; at the same time, however, ho did not propose to throw on other Judges a task which ought not to have been imposed on any of them. They should have a lay tribunal for the decision of questions of the nature contemplated by the Bill, and not one composed of the Judges. It had been proposed in the House of Commons last year, that there should be a department of the Government to which matters of this kind should be referred; and, he thought, that would have 1138 been a more desirable plan than the one now under consideration. Having said this much, he had only to observe that it was not his intention to move any Amendment to the Bill. If their Lordships should be pleased to impose on him duties for which he felt himself incompetent, he would endeavour to perform them to the best of his ability; but, lie must again say, these were not judicial duties, and that they ought not to be imposed on the Judges.

THE LORD CHANCELLOR
said, he could not but think, in spite of the remarks which had just fallen from his noble and learned Friend, that if their Lordships should give their favourable attention to this Bill, and if it should pass into law, there would be no practical difficulty found in its application to the evils which it was framed to remedy. His noble and learned Friend (Lord Campbell) had said their Lordships would be entering upon an anomalous course if they imposed on the Judges duties which were not judicial. To some extent that was true; but his noble and learned Friend must recollect that their Lordships had now to deal with a very anomalous state of things, He must remember that they themselves as passengers, and their horses, goods, and commodities, were not now conveyed along the Queen's highways as formerly, but upon highways belonging to individuals; and that had given rise to enactments calculated to meet this new state of things, and very different from those which formerly prevailed. The question now was whether anything could be suggested that was likely to render this mode of travelling more satisfactory to the public. His noble and learned Friend had said these were questions which ought to have been confided to what he called a lay tribunal—and, looking at the subject theoretically, he entirely concurred in that opinion. But his noble and learned Friend could not have forgotten that they had been already confided to a lay tribunal. There was a Board of that kind, presided over by a very able man, in existence until recently, and, not having given satisfaction, it was abandoned consensu ominium. He (the Lord Chancellor) had at first suggested that the party complaining should bring his action under the sanction of the Board of Trade; but it was objected to his proposal that it was the machinery of a lawyer, and not of a practical man. What did this Bill propose? Why, that in case there 1139 were arrangements made by two railway companies which were inconvenient—and sometimes such arrangements were intentionally inconvenient—any person might make a complaint to one of the Judges, who, if he was satisfied that, primâ facie, there was ground for complaint, might refer the matter to an engineer or some other competent person to determine what was best to be done. The railway companies were perfectly satisfied with that provision; and if there was a prospect of its affording to both persons concerned a practical relief in an inexpensive and effectual mode, why should it not be attempted? His noble and learned Friend had said the Judges were perfectly unacquainted with these matters; but his noble and learned Friend must not forget that these were questions which already frequently came under the consideration of the Judges and juries, and the functions imposed upon the Judges by this Bill would be much the same thing as those he now fulfilled when trying a cause before a jury. In the latter case he had to sum up the evidence and explain the law to the jury; and what would he have to do under this Act? He would hear the evidence, and having heard would have to apply the law accordingly. They had now to do through the medium of a jury what under this Bill they would have to do alone and he (the Lord Chancellor) believed they would find no sort of difficulty. There was an apprehension, doubtless, in the minds of some of the Judges, that they would feel some difficulty in undertaking the duties sought to be imposed on them; but the learned Chief Justice of the Court of Common Pleas had stated to him that he saw, practically, no difficulty at all in the matter. With respect to the suggestion made by his noble and learned Friend, he (the Lord Chancellor) did not see any difficulty in confining the cases arising under the provisions of the Bill to the Court of Common Pleas, especially as it was not so overburdened with business as the other courts were. He thought it would be a useful amendment to the Bill to confine the business to that Court; and if, on a trial, it should not be found to work satisfactorily, it would be the duty of the Government to devise something better. On the whole, he was of opinion that this was likely to be a very useful measure.

§ LORD STANLEY OF ALDERLEY
said, he had no objection to the proposal of confining the actions to be brought under this 1140 Bill to the Court of Common Pleas. He had received a letter from Chief Justice Jervis on the subject, which he would read to their Lordships:— "47, Eaton Square, May 25. My dear Lord Stanley,—I have no objection to your stating in the House of Lords and elsewhere, if you please, that in my opinion the Railway Traffic Bill may be worked by the Judges, if they will take the trouble to work it. It will certainly give them some trouble, but, as I do not see a more satisfactory way of settling questions in which the public have a deep interest, the Judges ought not, in nay opinion, to decline the duty, merely because it will be difficult. I ought to add that the majority of the Judges seem to think that the proposed work is not of a judicial character, and ought not to be imposed upon them. Such was the opinion of the Chief Justice, and he had no doubt the Bill would work well.

LORD CAMPBELL
said, that it would be a mistake to suppose that the Judges wished to shirk taking upon themselves the trouble which the Bill would impose upon them. All that he intended to contend for was, that the duties were not strictly of a judicial nature, and ought to be discharged by some other tribunal.

EARL FITZ WILLIAM
said, he rejoiced to think that these questions were likely to be referred to one of the Judges, at least, who would undertake their consideration con amore; because there could be nothing more unwise on the part of the Legislature than to impose duties upon a body of men who were not likely to discharge them cheerfully and willingly. He entertained a very decided opinion, however, that questions of this kind could never be satisfactorily settled except by a department of the Government specially provided for that purpose. With respect to the observation of his noble and learned Friend on the woolsack, that a department to which such questions were wont to be referred had been abandoned consensu omnium, he begged to call to his noble and learned Friend's recollection that it was abandoned consensu omnium because at that period the railway interest was particularly strong. As railway matters were now conducted, it was clearly necessary that we should have a Board who would listen to the complaints of the public and have something like an autocratic power to remedy them. This Bill certainly afforded no remedy for the existing evils, for the railway directors would snap their fingers at, and entirely disregard it. 1141 House in Committee.
Clauses agreed to, with Amendments.

§ LORD STANLEY OF ALDERLEY
said, that he had no objection to insert a clause for the purpose of making the liability of the railway companies as common carriers more clear. The clause had been drawn by the noble and learned Lord opposite (Lord Lyndhurst).

§ LORD LYNDHURST
said, that the clause was drawn in such a manner as to embody as nearly as possible the provisions of the 11 Geo. IV. (the Common Carriers Act). As the clause at present stood, it was proposed to give the owners of horses and cattle killed or injured by the negligence of the servants of a railway company, the power to recover a sum not exceeding 50l. for a horse, 12l. for a head of horned cattle, and 50s. for a sheep or pig.

§ LORD STANLEY
thought that these sums were too high, and therefore suggested that the clause should be agreed to in blank, and that the figures should be inserted after further consideration on bringing up the report.
Clause agreed to.
Report of Amendments to be received on Thursday next.