A guest post by Stephen Gadd, PhD candidate at Winchester University
I am examining the legislative and regulatory changes of the sixteenth century which laid the foundations in England and Wales for later transport development, including river navigation, road and harbour improvements, canals, and eventually railways. One aspect of this research concerns the radical thinking of the Reformation Parliament (1529-1536) and its immediate successors.
Magna Carta had confirmed in 1215 that no free man was to be deprived of his land except according to law, and the Laws of Edward the Confessor recorded that the Crown was responsible for the protection of highways, both roads and navigable rivers. If somebody’s land was needed for improvement of these highways (by widening or straightening) a Crown licence would be granted only following a satisfactory inquisition held to determine what damages (ad quod damnum) should be awarded. On payment of compensation, land could be taken from an individual by this common law exercise of Crown prerogative powers. With the Acte for the mending of the Ryver of Exeter in 1539, Parliament assumed these particular prerogative powers for the first time, respecting Magna Carta by respecting the existing legal principle of paying compensation.
An Acte for the mending of the Ryver of Exeter 31 Hen. VIII, c.4. Parliamentary Archives, HL/PO/PU/1/1539/31H8n4.
Not unusually for its time, the text of this Act takes the form of a petition to the King, in a bill introduced in the Commons on which it is noted (in the top right corner) that it was sent to the Lords and received their assent. Weirs belonging to the Marquess of Exeter had prevented boats from reaching the city of Exeter on River Exe (a legally-navigable highway), but the city’s corporation would find it impossible to achieve a remedy by common law process because the marquess was notorious for nobbling juries. Although this Act gave powers only to the Exeter municipal corporation which had promoted the Bill it was classed as a Public Act (the distinction between Public and Private Acts is explained here), and so in common with other Public Acts is transcribed in full in the published Statutes of the Realm. Land needed for the cutting of a new canal at Exeter could be taken on payment of compensation, the suggested price of 20 years’ purchase (20 times the annual rental value) being the same figure as was used for the contemporary sale of former monastic lands.
Images or transcripts of Private Acts held in the Parliamentary Archives have not yet been published, and so in order to assess the subsequent grant of powers of compulsory purchase for the improvement of transport infrastructure I have spent many hours examining potentially relevant Private Acts in the Archive's Search Room. There I was also able to look at unenacted bills, some of which were evidently rejected either before or after debate, while others were engrossed on parchment before failing through lack of time due to the prorogation of parliament. I’ve published here the results of this ongoing survey of compulsory purchase legislation up to 1720.
This 1662 Bill, if enacted, would have given general powers of compulsory purchase for improvement of rivers. Parliamentary Archives, HL/PO/JO/10/1/311.
The earliest statutes I have found authorising compulsory purchase for road improvement date from 1662 (here and here). In the intervening years since 1539 the writ and inquisition of ad quod damnum remained the only process for roads (examples), but during long parliamentary dissolutions the Crown tried twice to assert its prerogative in respect of compulsory purchase for river improvement. In 1621 Parliament sought to reassert its own authority concerning the grant of powers awarded by Crown letters patent to John Gason in 1617 and 1619. No such opportunity arose during the Personal Rule of Charles I, following a similar grant made to William Sandys in 1636, leading to claims that he ‘went about to entitle his Majesty to men’s inheritances’.
The relatively late survival of the common law process for improving roads as opposed to rivers may reflect the perception of benefits: jurors and witnesses at a local inquiry ad quod damnum are more likely to have anticipated personally making use of road improvements, while the potential economic benefits of river improvement would accrue in the first instance to a narrower interest group better placed to sponsor the parliamentary process.
A more detailed account of this research will appear in an article accepted for publication in the Journal of Legal History.