‘To make the cut between Wolseley Bridge and a large ash tree’

William Blackstone, the author of Commentaries on the Laws of England, observed that: ‘All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legis­lature can perform’.¹³ Blackstone sent the first of his four volumes to press in 1765.

the least. He was able to square the ‘inviolable rights of private property’ by tidying up on two points. The legislature must proceed ‘with caution’ and ‘nothing but the legislature can perform... an exchange... for a reason­able price’.¹⁴

In framing the Trent-to-Mersey canal legislation the House of Commons was not content to observe either of Blackstone’s limitations. The legisla­tive process tested forced sales: did the bill deliver enough goodness to the public? If the Canal seemed positioned, as a matter of economic analysis, to deliver the benefits its promoters promised the public, Blackstone’s ‘cau­tion’ was satisfied. Once their petitions (or counter-petitions) were filed, a free-for-all might break out. The House of Commons took on the role of assessing the quality and utility of the project before a spade-full of turf was turned. This should be regarded as quality assurance at work in the chamber. What Blackstone’s reasoning required was not a single predicate like ‘caution’ but sturdy if-then-else instructions guiding Commons’ assess­ment of the project’s economic viability in light of both public and private benefits and burdens distributed.¹⁵ The timeline is revealing: Blackstone was not interested in procedures and practices governing behaviour in the House of Commons when he sent his Commentaries to press.

Another departure from Blackstone’s limitations should be noted. In the Trent-to-Mersey legislation, Parliament transferred control over takings to a body corporate that it created, a development noted above. Moreover, via 6 Geo. 3 c. 96 Parliament empowered the Company to select those landown­ers whose property would now enjoy a view of the new canal from their drawing rooms. The Company would also select landowners whose water­ways would be dammed or diverted. The promoters’ petitions (filed with Commons or Lords) gave legislators the opportunity to contour the pre­industrial infrastructure of Great Britain. In the case of the Trent-to-Mersey canal, however, Parliament did not detail a route map for the canal.¹⁶ 6 Geo 3 c. 96 highlighted this point by carving out from its grant of authority seven specific ‘not in my backyard’ provisions. Sections LIV - LX. The live­liest of these exemptions barred the canal builders from routing the canal along ‘the South Side of the River Trent, between Wolseley Bridge and a large Ash Tree, standing in the lower Meadow of a Farm called the Toft, belong to Sir William Wolseley Baronet’. Section LV.

Blackstone declared that the ‘public good is in nothing more essentially interested’, he asserted, ‘than in the project of every individual’s private rights, as modelled by the municipal law’.¹⁷ What Commons offered pro­moters and opponents of any given project, however, was a legislative free- for-all, open to anyone with the resources to file a counter-petition and thereby assert an interest in the proceedings. Those claiming a stake in the Trent-to-Mersey project were given the opportunity to grieve the uneven distribution of benefits and burdens. Commons signalled its willingness

‘Orders indispensably necessary’ 15 to feel stakeholders’ pain when they suffered real or perceived procedural unfairness or were in danger of receiving less than their due of goodness. The Worshipful Company of Cheesemongers, for example, informed Com­mons that there ‘is already a very good Navigation upon River Trent, from Wilden to Burton’. This was, the Cheesemongers suggested, a reason for Commons to tread cautiously before finding that the promoters’ project merited legislative action.¹⁸