Part 45

It is found to be difficult to trace the individuals of a population so removed, and the inquiries on the subject are incomplete; but they tend to show that the working people make considerable sacrifices to avoid being driven to a distance from their places of work; that the poorest struggle against removal to a distance from the opportunities of charitable donations; and that where new habitations are not opened to them in the immediate vicinity, every effort is made by biddings of rent to gain lodgings in the nearest and poorest of the old tenements. To the extent to which the displaced labourers succeed in getting lodgings in the same neighbourhood, as a large proportion of them certainly do, the existing evils are merely shifted, and, by being shifted, they are aggravated. On a survey of the newly-built houses in the suburbs to which displaced labourers can go, it appears that the labourer, to use the expression of Dr. Ferriar, is almost “driven to hire disease,” for if he do not find any lodging near his place of work, he is driven to a choice amongst tenements of the character of those found in the parts of Kensington out of the jurisdiction of the Metropolitan Building Act, without sewers or drains, without water or proper conveniences on the premises, without pavements or means of cleansing the streets; where exorbitant rents are levied, where adequate means of moral or religious instruction are yet unprovided, and where they will neither gain in health nor in morals.

On reference to such past experience it appears to suggest itself as an expedient arrangement, that on the removal of old tenements and the occupation of the old ground by building new houses and streets for a superior class of tenants, or for public buildings, some provision should be made against the aggravation of the existing evils as respects the old occupants; that it should be required to be shown, for example, that appropriate unoccupied tenements are in the market, and on failure to do so, provisions might be made (on the principle of those provided for preserving accommodation for the labouring classes in enclosure bills) for the construction of appropriate tenements, in which qualities of the nature of those described by Mr. Sydney Smirke might be ensured. If the attention and power by which large public alterations are obtained were, at the same time, directed to the construction of new dwellings for the labouring classes, instead of spreading existing evils, all such alterations might certainly, and at remunerative though not at increased rents, be made the means of greatly improving the condition of those who stand in the greatest need of attention and aid for improvement.

The most important immediate general measure of the nature of a Building Act, subsidiary to measures for drainage, would be a measure for regulating the increments of towns, and preventing the continued reproduction in new districts of the evils which have depressed the health and the condition of whole generations in the older districts. Regulations of the _sites_ of town buildings have comparatively little effect on the cost of construction, and it may in general be said that a Building Act would effect what any enlightened owner of a district would effect for himself, of laying it out with a view to the most permanent advantage; or what the separate owners would effect for themselves if they had the power of co-operation, or if each piece of work were governed by enlarged public and private views. Had Sir Christopher Wren been permitted to carry out his plan for the rebuilding of London after the great fire, there is little doubt that it would have been the most advantageous arrangement for rendering the whole space more productive, as a property to the great mass of the separate interests, by whom the improvement was defeated. The most successful improvements effected in the metropolis by opening new lines of street, and the greater number of the openings projected are approximations at an enormous expense to the plan which he laid down. The larger towns present instances of obstructions of the free current of air even through the principal streets, and of deteriorations which a little foresight and the exercise of an impartial authority would have prevented. In one increasing town, a builder made a successful money speculation by purchasing such plots of ground as would enable him to erect impediments and extort compensation for their removal from the path of improvements in building. The improvements affecting whole towns are also frequently frustrated by the active jealousies of the occupants of rival streets. It would appear to be possible to provide an impartial authority to obtain and, on consultation with the parties locally interested, to settle plans for regulating the future growth of towns, by laying down the most advantageous lines for occupation with due protection of the landowners’ interest. The most serious omissions in the building of common houses are so frequently oversights as to make it probable, that if it were required that a plan of any proposed building should be deposited with a trustworthy officer, with a specification of the arrangements intended for the attainment of the essential objects, such as cleansing and ventilation, the mere preparation of the document would of itself frequently lead to the detection of grievous defects. An examination of Mr. Loudon’s specification of the requisites of cottages will show that a large proportion of the most important of these are independent of the cost of construction.

_General State of the Law for the Protection of the Public Health._

In a work which is considered in Germany the chief authority in respect to the extensive administrative duties comprehended under the term police,[41] the author, Professor Mohl, of Tubingen, in speaking of the sanitary police of towns, observes, that “Medical police is both in theory and practice essentially German. In German states only, as Austria and Prussia, has anything been done in it systematically; the literature also of medical police is almost entirely German. Other states either do nothing at all, as England, the United States of America, or only very imperfectly, as France; where anything is done, German principles and arrangements are closely imitated.”

It is stated that some of the new towns and the new parts of the old towns in Germany, as in Stuttgard, Manheim, Darmstadt, exhibit striking marks of this care in the comparative structure and arrangements of the houses, and in the general administration, with a view to the health and pleasure of the population, which is sometimes impressively displayed in the superior condition of the public walks and gardens, as at Frankfort and Baden-Baden. The professor’s reproach is, however, scarcely applicable to the substantive English law, or to the early constitutional arrangements in which are found extensive and useful provisions, and complete principles for the protection of the public health.

1st. So much of the structural arrangements as depended on drainage was provided for by the Commissions of Sewers, who were invested with valuable powers by the statute 23d Hen. VIII, cap. 5, s. 1; the authority of these Commissions “to be directed into all parts within this realm where need shall require, according to the form ensuing, to such substantial persons as shall be named by the Lord Chancellor and Lord Treasurer, and the two chief justices, or by three of them, whereof the Lord Chancellor to be one,” to cause “to be made, corrected or repaired, amended, put down or reformed, as the case shall require, walls, ditches, banks, gutters, sewers, gates, cullices, bridges, streams, and other defences by the coasts of the sea and marsh ground.”

2dly. The ancillary arrangements as to road cleansing as well as road structure, were provided for by the highway laws, including the provisions of the 5th Eliz. c. 13, s. 7, for the cleansing of the ditches, &c.

The common law provided general remedies for the redress of injuries, under the comprehensive title nuisance (_nocumentum_), meaning anything by which the health or the personal safety, or the conveniences of the subject might be endangered or affected injuriously. By the law as it now stands, the subject is entitled to protection against things which are offensive to the senses, from which no injury to the health or other injury can be proved than the often overlooked but serious injury of discomfort, of daily annoyance, as by matters offensive to the sight, as by allowing blood to flow in the streets; by filth, by offensive smells, and by noises. The injuries termed nuisances were threefold,—first, public or general; second, common; third, private. “Public is that which is a nuisance to the whole realm; common is that which is to the common nuisance of all passing by; private is that which is to a house or mill, &c.” 2 Institute, 406. A common nuisance is defined to be an offence against the public “either by doing a thing which tends to the annoyance of all the king’s subjects, or by neglecting to do a thing which the common good requires.” Hawk, p. 1. c. 107, c. 75, f. 1. For the private injury there was the remedy by civil action; for the common and the public injuries, the remedy was by indictment.

The common-law obligation upon all owners of property has, in general, been adhered to by the superior courts. “_Prohibetur ne quis faciet in suo quod nocere possit alieno; et sic utere tuo ut alienum non lædas._” 9 Co. Rep. 58.

Thus, it is held to be a common nuisance and indictable to divide a messuage in a town for poor people to inhabit, by which it will be more dangerous in time of infection. 2 Roll’s Abridgment, 139. Such indictment of one Brown for dividing a messuage in the village of Hertford was held good, and he was put to plead to it; and it was then said that such indictments are frequent in London for dividing of messuages.

The policy of the common law was endeavoured to be enforced by the statute of the 31st of Eliz. c. 7, which provided that there should not be any inmate or more families or households than one dwelling or inhabiting in any one cottage, made or to be made or created, upon pain that every owner or occupier of such cottage, placing or wilfully suffering any such inmate or other family than one, should forfeit 10_s._ for every month that such inmate or other family than one should dwell in it. The statute provided that no cottage should for the future be built without four acres at the least of land attached to it. But this provision did not extend to cottages in towns, or for mineral works, navigation, sheep cotes, &.c. From the number of decisions in the books, it would appear that the provisions of the statute were extensively enforced against the overcrowding of the tenements, but the obligation for attaching the four acres of land impeded the erection of new tenements, and occasioned inconvenience and led to the repeal of the whole statute, by the 15th Geo. III. cap. 32.

In a temporary Act passed in the 35th of Eliz. cap. c., for the reforming of the great mischiefs and inconveniences that “daily grow and increase by reason of the pestering of houses with divers families harbouring of inmates,” that occurred in the city of London and Westminster, it is recited that the practice had been productive of “great infection of sickness.” This effect could scarcely have failed to be perceived when the plague was so frequent and dreadful in its visitations. The exemption from it is ascribed to such widening of the streets and improvements of the houses as took place after the Fire of London.

But we apprehend that the common-law remedy still remains in force as against the owners of tenements which are a nuisance. It was decided in the case of the King _v._ Pedley, temp. 1834, 1st Adolphus and Ellis, 822:—

“That if the owner of land erect a building which is a nuisance, or of which the occupation is likely to produce a nuisance, and let the land, he is liable to an indictment for such nuisance being continued or created during the term.

“So he is if he let a building which requires particular care to prevent the occupation from being a nuisance, and the nuisance occur for want of such care on the part of the tenant.

“That if a party buy the reversion during a tenancy, and the tenant afterwards during his term erect a nuisance, the reversioner is not liable for it; but if such reversioner relet, or having an opportunity to determine the tenancy omit to do so, allowing the nuisance to continue, he is liable for such continuance. Per Littledale, J.

“And such purchaser is liable to be indicted for the continuing of the nuisance if the original reversioner would have been liable, though the purchaser has had no opportunity of putting an end to the tenant’s interest or abating the nuisance.”

The stopping of wholesome air is held to be a nuisance as well as the stopping of the light. Co. 9 Will., Aldred, 57. In the case of Lewes _v._ Keene, Trin. Term. Jac. Rex, it was held by the court—“that the light which cometh in by the windowes, being an essential part of the house, by which he hath three great commodities, that is to say, air for his health, light for his profit, prospect for his pleasure, may not be taken away no more than a part of his house may be pulled down, whereby to erect the next house adjoining. And with this resolution agreeth the case of Eldred, reported by Sir Edw. Coke, in his Ninth Report, fol. 58, where he showeth the ancient form of the action upon the case to be _quod messuagium horrida tenebritate obscuratum facit_; but if there be hinderance only of the prospect by the new erected house, and not of the air, not of the light, then an action of the case will not lye, insomuch that the prospect is only a matter of delight, and not of necessity.”

The corruption of the water is an offence at common law, and was early the subject of a statutory provision. In the earlier periods the power of the legislature was directly exercised for the abatement of nuisances. I am favoured by the following illustrations from a collection of records upon the subject made by _Mr. T. D. Hardy_, of the Record Office in the Tower:—

The first extract shows that sea-coal was in use in London much earlier than is commonly supposed:—

“_Patent Roll_, 16 Edw. 1.—The king to his beloved and faithful Thomas de Weylaund, John de Luvetot, John de Cobeham, and Ralph de Sandwico, custos of his city of London, greeting: From the complaint of many persons, we understand that many people are dangerously aggrieved by the furnaces of lime which are built in the said city and its suburbs, and in Southwark; because the lime which formerly used to be burnt with wood, is now burnt with sea coal, by which the air there is affected and corrupted, to the great danger of persons frequenting those parts and dwelling around them: we, therefore, being willing to afford a fitting remedy for this, have appointed you to see those furnaces, and remove the danger and nuisances which threaten from them in these days, and to order further concerning them according to your discretion, as you shall see most expedient for the common use and safety; and therefore we command you, that taking with you our sheriffs of London and our bailiffs of Southwark, you perform the premises with diligence. We have also commanded the same sheriffs and bailiffs that at a certain day, which you shall make known to them, they attend to this with you, in form aforesaid. Witness, Edmund Earl of Cornwall, at Westminster, on the 26th day of May.”

“A.D. 1290, 18 Edw. I.—The Carmelite Friars of London, the Friars-preachers, the Bishop of Salisbury, and others, petition Parliament to abate a nuisance (viz. a great stench) near them which they cannot endure, and which prevents them from performing their religious duties, and from which several of the monks had died. (Petit, in Parl. 18 Edw. I.)

“35 Edw. I.—The mayor of London is commanded to prevent persons from lighting furnaces near the Tower of London during the stay of the Queen and the nobles at the tower, because the air is corrupted and infection generated by the insalubrity of the air on account of the said furnaces. (Rot. claus. 35 Edw. I.)

“A.D. 1320, 14 Edw. II.—The inhabitants of the neighbourhood of Smithfield complain to Parliament that wells and ditches are dug there without the king’s license, to the annoyance of the inhabitants and passengers. The mayor and corporation of London are thereupon ordered to see that such nuisances are abated. (Petit, in Parl. 14 Edw. II.)

“A.D. 1330, 4 Edw. III.—The chancellor and University of Cambridge petition Parliament that the mayor and corporation of Cambridge may be constrained to scour the ditch of the town, which is injurious to the health of the inhabitants of the town. (Petit, in Parl. 4 Edw. III.)

“44 Edw. III.—The butchers of London are forbidden to slaughter cattle within that city, or throw entrails into the river Thames, on forfeiture of the carcase and imprisonment. (Rot. claus. 44 Edw. III.)

“A.D. 1370, 3 Rich. II.—The inhabitants of Smithfield and Holborn complain of the infection of the air from butchers slaughtering cattle, &c., and casting entrails into the ditches. (Petit, in Parl. 3 Rich. II.)

“By stat. 12th Rich. II. c. 13.—None shall cast any garbage or dung or filth into ditches, waters, or other places within or near any city or town, on pain of punishment by the Lord Chancellor at his discretion.

“Butchers of London shall erect a slaughter-house on the banks of the Thames, and thither carry off their offals, which, when cut into pieces, shall be carried in boats, and at the commencement of the ebb cast into the river. (Rot. Parl. 16 Rich. II.)

“A.D. 1392, 16 Rich. II.—It is enacted that the butchers of London shall not slaughter therein any swine or other beasts for sale. (Rot. Parl. 16 Rich. II.)

“Same date.—All filth, &c. ordered by Parliament to be removed from both banks of the Thames between the palace of Westminster and the power of London; and butchers or others are prohibited from casting entrails, &c. into the river on penalty of 40_l._ (Ibid.)

“Parliament forbids all persons from throwing dung, garbage, or entrails of slaughtered beasts into rivers or waters near cities or towns to corrupt the air and cause infection. (Rot. claus. 4 Hen. IV.)

“The Chancellor is authorized to treat touching the non-rebuilding of two forges in Fleet-street, London, demolished in a riot, as straitening the said street.” (Rot. Parl. 18 Hen. VI.)

We find the authority of Parliament exercised in the reign of Henry VII. to restrain a nuisance. In the 4th of his reign, c. 3.

“Item, it was shewed by a petition put to the king, our said sovereign lord, in the said Parliament, by his subjects and parishioners of the parish of St. Faith’s and St. Gregory’s in London, near adjoining unto the cathedral church of St. Paul’s, that whereas great concourse of people as well of his royal person as of other great lords and states with other his true subjects, oftentimes was had unto the said cathedral church, and that for the most part throughout the parishes aforesaid the which oftentimes been greatly annoyed and distempered by corrupt airs engendered in the said parishes, by occasion of blood and other foulis things by reason of the slaughter of beasts and scalding of swine, had and done in the butchery of St. Nicholas’s flesh shambles, whose corruption and foul ordure by violence of unclean, corrupt, and putrefied waters is borne down through the said parishes, &c., complaint whereof at many and divers seasons also by the space of sixteen years continually, as well by canons and petty canons of the said cathedral church, landlords there, as also by many other of the king’s subjects, of right honest behaviour, hath been made unto divers mayors and aldermen of the City of London and no remedy had ne found; that it may please our said sovereign lord of his abundant grace, to provide for the conservation as well of his most royal person, as to succour his poor subjects and suppliants in this behalf, considering that in few noble cities and towns, or none within Christendon, whereat travelling men have laboured, the common slaughter-house of beasts should be kept in any special part within the walls of the same, lest it might engender sickness unto the destruction of the people.”

Therefore it is enacted that butchers shall not slay beasts within the walls of London; and that this law be observed in every walled town “except Berwick and Carlisle.”

The courts, however, have always had regard to the convenience of trade: thus it was held,—

“Si homme fait candells deins un vill, per qui il cause un noysom sent al inhabitants, uncore ceo nest ascun nusans car le _needfulness_ de eux dispensera ove le noisomness del _smell_.” (2 Roll’s Abr. 139.)

But this decision has been doubted, “Because,” says Serjeant Hawkins, Pl. Cor. 190, c. 75, “whatever necessity there may be that candles be made, it cannot be pretended to be necessary to make them in a town, and that the trade of a brewer is as necessary as that of a chandler; and yet it seems to be agreed that a brewhouse erected in such an inconvenient place where the business cannot be carried on without incommoding greatly the neighbourhood may be indicted as a common nuisance. A presentment was made to a Leet for erecting a glass-house; and Twisden, J., said he had known an information adjudged against one for erecting a brewhouse near Serjeants’ Inn; but it was insisted that a man ought not to be punished for erecting anything necessary for the exercise of his lawful trade; and it being answered that it ought to be in convenient places where it may not be a nuisance, the other justices doubted, and agreed that it was unlawful only to erect such things near the King’s palace.” Vent. 26, Pasch. 21, Car. 2. Recently, however, when some architects and medical gentlemen went to the top of Buckingham Palace to examine it preparatory to its occupation by Her Majesty, they were assailed by a cloud of smoke from the chimney of the furnace of a neighbouring brewery; and the nuisance remains to the present time in full force, notwithstanding the statutory provisions against it.

Where the defendant in his business as a printer employed a steam-engine, which produced a continued noise and vibration in the plaintiff’s apartment which adjoined the premises of the defendant, this was held to be a nuisance. The Duke of Northumberland _v._ Clowes, C. P., at Westminster, A.D., 1824.

The earlier sanitary regulations were frequently set forth in the provisions of the local Acts for the regulation of the streets. From the early street regulations of the city of London, we find that the purity of the river and of the contributary streams was zealously regarded; the ward inquests were specially charged to inquire:—

“If any manner of person cast or lay dung, ordure, rubbish, sea-coal dust, rushes, or any other noiant, in the river of Thames, Walbrook, Fleet, or other ditches of this city, or in the open streets, ways, or lanes within this city.

“Also, if any person in or after a great rain falleth, or at any other time, sweep any dung, ordure, rubbish, rushes, sea-coal dust, or any other thing noiant down into the channel of any street or lane, whereby the common course there is let, and the same things noiant driven down into the said water of Thames.”

But when it is considered how few of the streets were paved, or sewered, or drained, the following regulation indicates what must have been their condition and the habits of the inhabitants:—