‘An easy communication will be a great advantage’

The stop-and-start pattern by which Congress guided national government through both primitive and provisional phases (1774-89) may be contrasted with progress made in the House of Commons.

To gain favourable attention to their project, the Trent-to-Mersey pro­moters circulated a pamphlet titled ‘Facts and Reasons Tending to shew, that the Proposed Canal, from the Trent to the Mersey ought not to terminate

‘Orders indispensably necessary’ 11 in Northwich or Burton’. The text boasted of the economic viability of the Trent-to-Mersey canal. This ‘Plan hath been well digested, and hath not wanted public Notoriety’. Easy Communication

between the Two great Port Towns of Hull and Liverpool, which will be of great Advantage, not only to the Trade carried on to and from the said Two Ports, but... will also tend to the improvement of the adja­cent Lands, the Relief of the Poor, and the Preservation of the Publick Roads; and moreover be of great Public Utility.⁹

The Act of Parliament founding the Company defined the legal relationship between the Company and its future shareholders; the Act named these 88 men and 11 women (including Mary Mattock, Ann Abbott, Ann Sneyd, Honora Byrd, Sarah Nixon and others).

Joint stock companies inhale and exhale money. To aid the Company in achieving financial solvency, Parliament wrote a critical path for capital infusion. Parliament authorised the Company, in ‘General Meeting assem­bled’, to make capital calls. Company shareholders were then obliged to ‘contribute... a competent Sum of Money for making and compleating the said Navigable Cut or Canal’. Sections XXI - XXV. Sufficiently capi­talised, the Company would be required to put its affairs in order before it did business. Parliament ordained such arrangements in Sections XXVI through XXXVIII, fashioning what modern readers will recognise as a mini­code of corporation law. These provisions framed rights and duties of the Company’s shareholders, on the one hand, and its managers, on the other hand. The Act of Parliament endowed the Company with its rights, duties and personality, thereby breathing life into the Company as the child-agent of its shareholders.

In another feature of the Act, Parliament addressed future claims for tak­ings and damages which might be brought in the event that ‘Differences may arise’ between the Company and a landowner. Parliament created a private adjudication system and, rather neatly, interlaced these arrangements into the existing county-based system of justice in which sheriffs and coroners served as the principal officers. Sections VI - XIII. Section VI of the Act named 788 residents of the counties of Derby, Stafford and Chester, any seven of whom ‘are hereby impowered...

be paid by the said Proprietors’. Modern readers will not find any ready analogue to Section VI. If a utility company lays an underground cable through my backyard without benefit of a previously recorded easement, it would not occur to me to round up seven of my neighbours to hear my case in trespass against the company.

In Section VI Parliament also detailed the procedures by which judgments entered against the Company (arising out of such claims) were to be funded and satisfied. County Sheriffs and Coroners were authorised to ‘impanell, summon and return’ juries of ‘Twenty-four sufficient and indifferent Men’, otherwise qualified to Westminster standards. The Act anticipated some dif­ficulty on this point. Sheriffs and Coroners were vested with the power to conscript ‘other honest and indifferent Men of the Standers-by’ or anyone else who might be ‘speedily procured, to attend that Service’. These jury tri­als served, Commons declared, as a landowner’s sole remedy for taking or damages claims against the Company. This immunity also attached to the necessary survey work preliminary to construction. Sections I and II.

In breathing life into the Company, Commons took the opportunity to showcase its considerable talent for procedure-writing. The power of the modern nation-state over the real property and improvements of its inhabitants was channelled to protect the Company’s net worth. Proce­dures substituting for suits proceeding through King’s Bench conferred tangible economic benefits on the canal as a private entity. This reduced the capital investment required to render the Company’s proposed canal system a money-making enterprise. I refer to these promoters of improve­ment projects as stakeholders in the legislative process which their peti­tions initiated.

Based on Commons’ past practices promoters assumed that members of the House would treat their petition according to fixed pathways.

The promoters opened their advertisement with the phrase ‘In the Course of human affairs’, an expression not without resonance in British and Amer­ican political history. This optimism evidenced their confidence that their petition would receive fair play in Commons.

In the Course of human affairs and during the gradual Improvement of the Arts of Life, small Things are constantly yielding to greater, bad to good, and good to better, in Proportion as human Genius expands, and

‘Orders indispensably necessary’ 13 enriches the World with its Discovering; and it is the unavoidable Effect of every new Improvement, in Sciences or in Arts, to diminish the Value of less perfect Systems, and Works of inferior Utility.¹¹

This theme caught the spirit and temper of the early industrial age. Erasmus Darwin found the future entirely predictable and to his taste. Lines from The Botanic Garden, A Poem (1791) forecast

Soon shall thy arm, unconquer’d Steam! afar Drag the slow barge, or drive the rapid car;

Or on wide-waving wings expanded bear

The flying-chariot through the fields of air.¹²

As a practical matter it was not veneration for its history that motivated the House of Commons to comply with its intra-mural procedures and prac­tices. Commons expected that stakeholders in its process comply with Com­mons’ established procedures and practices governing these projects.