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Companies, having foreseen the possibility of such competition, at least in the case of long through transits for heavy goods, had bought up important links in the canal system and upon their own parts of the canal exacted so much, in the shape of “bar tolls," that the competition which would have been so beneficial could not take place. Doubtless the principle that it is better to put an end to a monopoly by means of the agency of public enterprise instead of by legislative enactment, was wise and excellent.
One of the evils of our present system, by which we have a large body of men who devote themselves to the business of legislation, is over legislation. That evil of a hypocondriacal nation ought, wherever it is practical, to be avoided. The country that has fewest laws has least need of laws. But while the idea of the strengthening the hands of canal companies, in their contest with railway companies, was excellent, it came too late. There is not much use in making a man strong to fight when his antagonist has got him in irons. These two Acts, therefore, the one which empowered canal companies to vary their tolls, provided they made the same charges to all persons alike under the same circumstances,* and the other which empowered canal companies (until that time only the owners of the canals and wharfs) to purchase boats and barges, to become carriers of goods, and to enter into working arrangements with other canal companies,+ came too late. Still, tracing the history of railway legislation, we find that a Commission, consisting of five Commissioners existed from the year 1836 to the year 1851. That commission exercised all the power of the Board of Trade with reference to railways, and the Commissioners had the further duty of reporting upon private Railway Bills.
A Select Committee of the House of Commons was appointed in 1853, of which Mr. Cardwell was chairman; and it was upon the reports (5 in number) of that committee that the Railway and Canal Traffic Act of 1854 was founded.
8 and 9 Vict. c. 28.. + 8 and 9 Vict., c. 42.
The legislature had by that time discovered that the indirect method of putting an end to railway monopoly was ineffectual, and that some direct parliamentary interference, for the benefit of the public, was peremptorily called for. That Act provided that every Railway and Canal Company should afford “reasonable" facilities for forwarding both its own and through traffic, and that this should be done without giving any “ unreasonable " preference to one person above another. The remedy, in case a company did not give reasonable facitities or did give undue preference, was to be by means of an application to the Courts of Common Pleas in England or Ireland, and to the Court of Sessions in Scotland. We have always heard that the Court of Common Pleas was selected because the judges of the Courts of Queen's Bench and Exchequer refused to have anything to do with it, and that had Chief Justice Jervis consulted the puisne judges of his own court before communicating with the Government, the Court of Common Pleas, also, would have expressed unwillingness to have anything to do with the jurisdiction.
The terms in which the Act was spoken of makes this more than probable. Lord Campbell protested against such duties being imposed on the judges. “The code,” he said, "was not one which the judges could interpret, it left them altogether to exercise their discretion as to what was reasonable with no statutable or common law authority to guide them.” Lord Lyndhurst, too, said, “that the questions that would arise under the Act were so vague and so incapable of being reduced to fixed rules that it was impossible conflicting decisions should not be given ;” and Mr. Justice Cresswell, in one of the cases which afterwards came before the Court of Common Pleas, remarked that the questions under the Act (17 and 18 Vict. c. 31) “ assume a very difficult and complicated character, and are such as we feel but little qualified to decide. Nevertheless, as the legislature has thought fit to impose on the judges of this Court the duty of dealing with such questions, we must do so to the best of our
ability, whenever it becomes necessary." * Others complained that the Act contained no canon of construction. However, such as it was, the Court had to do the best they could with it, and, during the 18 years, twenty-five cases have been decided in the Court of Common Pleas in England, and four in the Court of Session in Scotland. Not that they have done a great deal with the Act, for an examination of the cases which have been decided in the courts will prove that the public became less confident of an efficient remedy, and therefore, that as time went on, the number of cases diminished, and it will also prove that the want of uniformity increased. Most of the cases arose out of allegations of unequal treatment, or, as it has been called, “ undue preference ;” and in only two was a question of reasonable facility brought before the Court.t Little doubt existed in anybody's mind that the result had justified the opinions of the learned judges who regarded the courts as incapable of discharging the duties which were imposed upon them by the Act, and it is not a matter for wonder that the Joint Select Committee, which sat in 1872 on Railway Companies Amalgamation, came to the conclusion that some change in the mode of the administration of the law was called for. I One thing, however, is to be noted in connection with the Railway and Canal Traffic Act of 1854, and that is that the Legislature had
* Ransom v. the Eastern Counties Railway Co., 1 C. B., N. S. 452. + In re Caterham Railway Company v. London, Brighton, and South Coast Railway Company (1 C.B., N.S. 410) the companies owning the main line charged the passengers travelling over the main line higher fares than they charged passengers travelling over branches of the same length belonging to themselves; and in the case of re Barrelt v. The Northern and Great Western Railway Company (1 C.B., N.S. 423) it was held that to justify the interference of the Court to enforethe running of through trains on a continuous line of railway, it must be shown that the public convenience requires, and that it can reasonably be done. They will not interfere at the instance of an individual when there is a continuous line by which through tickets may be obtained, though by a sumewhat longer route ; no additional cost or serions lost of time being thereby incurred, and no substantial inconvenience being thereby occasioned to the public, and it appearing that no complaints had been made of the inadequacy of the existing accommodation.
See Report of the Committee.
despaired of effecting its object, with regard to the curtailment and limitation of the Railway Monopoly by means of competition, and had definitely adopted a different policy, which had been advocated by a Committee in 1844, of which Mr. Gladstone was chairman – viz. : regulation. * It had recognized the fact that the healthy processes of self-interest, competition, and the like, had failed to effect a cure of the disease which prejudicially affected the life of the community, and that it was time to exert a counteracting influence to those processes which jeopardised the comfort and convenience of the nation. We have seen that the intended remedy had not the desired effect, and it was with a view of rendering the provisions of the Act of 1854 more efficient, that the Regulations of Railways Act, 1873, was passed. But the Commissioners appointed under that Act have other duties to perform besides that of preventing undue preferences and of bringing about reasonable facilities, and it may be well to allude to these in this place before examining the main provisions of the statute.
In 1863, certain restrictions were imposed by the Railways Clauses Act, part iii, + upon working agreements which had not only to be advertised and to be sanctioned by the shareholders of the companies, proposing to combine for the purpose of traffic, but had to be approved by the Board of. Trade, which had the power of considering objections to the proposed agreement which were brought before it. I By that Act also, the provisions of the 1854 Act were extended to steam vessels worked by railway companies, and the Board of Trade were entrusted with the duty of revision of the powers enjoyed and exercised by railway companies in relation to such steam vessels. By the regulation of Railways Act, 1873,|| these powers and duties are transferred to the Railway Commissioners. Further, with the view of encou
See 5th Report of the Committee of 1844.
† 26 and 27 Vict., c. 92. s.s. 22, 29. $ s. 35.
| 8. 10.
raging the very feeble competition which canal companies are in a position to maintain against railway companies, the legislature has thought fit to make it obligatory upon all railway companies owning canals, that they should keep them in working condition, so that they may at all times be open to traffic,* and the same Act provides that no railway or canal company shall, without the approval of the railway commissioners, enter into any agreement by means of which a railway company can obtain any control over the traffic on a canal.t Again, the Commissioners may, upon the application of one of two differing railway companies, allow the disputants to refer the matters in difference to them for their decision, instead of referring them to arbitration, f and in any dispute to which a railway or canal company is a party, they may, upon the agreement of all the parties that the dispute should be referred to them, decide the differences.Ş To them also differences arising between the Post Office and railway companies as to additional remuneration to be decided by arbitration under 1 and 2 Vict., c. 98, may, at the option of the companies, be referred.
It was necessary to refer to those provisions of the Statute that the reader might understand the whole scope of the enactment. It is evident, then, that the legislature is still struggling with this great practical law of monopoly, which has been enacted by the fate which is associated with the aggregation of great wealth, and by the various circumstances of railway construction. It is evident the Regulations of Railways Act, 1873, is another attempt upon the part of the legislature to grapple with that strange monster railway monopoly which has done so much to make legislation futile, and which will each day, as amalgamation and combination progress, become more powerful for evil to the wide interests of the people, and to the real benefits which the nation derives from its railway system. Will this Bill, too, prove useless?
The constitution of the new tribunal, which is called the