Part 46

“No man shall cast any urine-boles or ordure-boles into the street by day or night, afore the hour of nine in the night: and also he shall not cast it out, but bring it down, and lay it in the channel, under the pain of three shillings and four-pence; and if he do cast it upon any person’s head, the party to have a lawful recompense, if he have hurt thereby.”

The state in which the streets were under such regulations is indicated in the proclamations issued at the time of the Plague, 1569, to “warne all inhabitants against their houses to keep channels clear from filth, (by onlie turning yt) aside, that the water may have passage.”

The prominent provisions of the modern Sewers’ and Street Acts are those which contain penalties against the most effectual means of street-cleansing,—that by discharging the street refuse through the sewers; but whilst the local legislation was deficient in principle in the main provisions, it is distinguished by a multitude of particular provisions against nuisances and obstructions, which would argue the most extensive foresight. The nature of the provisions habitually resorted to are illustrated in the statute of 4th Geo. IV. c. 50, s. l, for building the new London Bridge.[42]

“Every man may abate a common nuisance.” Br. Nuisance. “The nuisance may be abated, that is, taken away or removed by the aggrieved thereby, so as he commits no riot in doing of it.” “And the reason,” says Blackstone, “why the law allows this private and summary method of doing one’s-self justice, is because injuries of this kind which obstruct or annoy such things as are of daily convenience and use require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice.” Com. B. iii. 6. And the annotator adds, “The security of the lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it. Pardon for a nuisance is void as for the continuance thereof.” 3 Cro. Jac. 492, Dewell _v._ Saunders.

_State of the Special Authorities for reclaiming the Execution of the Laws for the Protection of the Public Health._

The most important, perhaps, because the most cheap and accessible authority for reclaiming the execution of the law for the protection of the subject against nuisances, for punishing particular violations of it, was vested in the Courts Leet. The statute of the view of Frankpledge, 13 Edw. II., directs inquiry to be made of waters turned, or stopped, or brought from their right course, and obstructions in ditches were presentable at the Leet; but the stopping up a watering-place for cattle was held not to be presentible as a common nuisance. (40 Lit. 56 _a._) The juries, commonly called “annoyance juries,” impanelled to serve on Courts Leet in towns, are accustomed to perambulate their districts to judge of nuisances upon the view. But the state of this machinery will be seen in the state of the evils which come within its jurisdiction.

With all this legal strength, however, there is scarcely one town in England which we have found in a low sanitary condition, nor scarcely one village marked as the abode of fever, that does not present an example of standing violations of the law, and of the infliction of public and common as well as of private injuries, the tenements overcrowded, streets replete with injurious nuisances, the streams of pure water polluted, and the air rendered noisome.

The chimneys of the furnaces which darken the atmospheres, and pour out volumes of smoke and soot upon the inhabitants of populous towns, afford most frequent examples of the inefficiency of the local administration, and the contempt of the law for the protection of the public against nuisances which are specially provided for.

Most modern private Acts contain penalties on gas-companies permitting their washings to contaminate streams, or using for steam-engines furnaces which do not consume their own smoke. The general statute, 1 and 2 Geo. IV. c. 41, empowers the court to award costs to the prosecutor of those who use such furnaces. Where the grievance may be remedied by altering the construction of the furnace employed in the working of engines by steam, the court may make an order for preventing the nuisance in future.

The specific effects of an excess of smoke on the general health of a town population has not been distinguished, but from the comparatively high average of mortality amongst the middle classes in situations undistinguished by confined residences, or defective drainage, or anything but an excessively smoky atmosphere; from the comparatively rapid improvement of convalescents on removal to purer atmospheres, there is strong reason to believe that the prejudicial effect is much more considerable than is commonly apprehended even by medical practitioners. As the smoke in Manchester and other towns becomes more dense, the vegetation declines; and even in the suburbs the more delicate species die. _Dr. Baker_, in his report on the sanitary condition of the town of Derby, after adverting to the state of the places of work as affecting the health of the operations, proceeds to notice the effects of the smoke:—

“The next general cause of injury to public health, and connected with the foregoing, is the corruption of the air caused by the torrents of black smoke that issue from the manufactory chimneys, the nuisance from which is much augmented in heavy and moist states of the atmosphere. There is a law by which those who most offend, as regards their chimneys, can be punished; but of course the magistrates are not also prosecutors, whilst, private individuals, being unwilling to become informers, little is done to check this nuisance; and such is the state of the air, that in gardens in the town none but deciduous shrubs can be kept alive.”

Besides the prejudicial effects on the health of the population by the deterioration of the quality of the air that is breathed, a serious effect is created by its operation as an impediment to the formation and maintenance of habits of personal and household cleanliness amongst the working classes. Even upon the middle and higher classes the nuisance of an excess of smoke, occasioned by ignorance and culpable carelessness, operates as a tax increasing the wear and tear of linen and the expense of washing, to all who live within the range of the mismanaged chimneys. In the suburbs of Manchester, for example, linen will be as dirty in two or three days as it would be even in the suburbs of London in a week. One person stated that, on the Isle of Arran, a shirt was cleaner at the end of a week’s wear than at Manchester at the end of a day’s.

Nor is this the only oppressive tax occasioned by the carelessness; _Mr. Thomas Cubitt_, the eminent builder, when examined before the Committee of the House of Commons, was asked,—

“Suppose it were intended to build a row of houses, would you not suffer them to be built unless there was a sewer provided?—I would not allow a house to be built anywhere unless it could be shown that there was a good drainage, and a good way to get rid of water. I think that there should be some public officer responsible for that; that there should be surveys of every district, so that the officer should be aware whether the sewers were provided or not. I think there should be an officer paid at the public expense, who should be responsible for that. I think they should not be appointed by the district; there should be no favouritism of that kind; but public officers, changed from point to point, to take care of all public nuisances. With respect to manufactories, here are a great number driven by competition to work in the cheapest way they can. A man puts up a steam-engine, and sends out an immense quantity of smoke; perhaps he creates a great deal of foul and bad gas; that is all let loose. Where his returns are 1000_l._ a-month, if he would spend 5_l._ a-month more he would make that completely harmless; but he says, ‘I am not bound to do that,’ and therefore he works as cheaply as he can, and the public suffer to an extent beyond all calculation. I look upon it it has this effect: a gentleman comes to London, and lives in London; I will suppose he fits up his house in the best style he can; he has a taste for good pictures and upholstery, and so on. After a time the smoke has destroyed them, and he is disappointed and annoyed, and the effect is he is brought down in his feelings in a degree from the state in which he was accustomed to have things.”

The appearance of the towns on the Sunday, when nearly all the furnaces are stopped, when there is little more than the smoke from the dwelling-houses, when everything is comparatively bright, and the distant hills and surrounding country that are never visible though the atmosphere of the town in the week-days may be seen across it, presents nearly the appearance which such towns would assume on the working days, if the laws were duly executed, and the excessive smoke of the furnaces prevented. On inquiry of a peace-officer acting where redress is provided for under a local Act, how it was that the dereliction of duty occurred that was visible in the dense black clouds that darkened the town, he replied that the chief members of the Board were the persons whose furnace-chimneys were most in fault, and he appealed whether a man in his condition was to be expected to prosecute his patrons?

The greater part, if not the whole, of the excess of smoke and of unconsumed gas by which the metropolis and the neighbourhoods of manufactories are oppressed, is preventible by the exercise of care in the management of the fires of the furnaces. And here also the measures for the prevention of the nuisance are measures of economy.

Many witnesses whose opinions are enforced by practical examples, state confidently that such nuisances are generally the result of ignorance or carelessness. Amongst others we may cite the authority of Mr. Ewart, the inspector of machinery to the Admiralty, residing at Her Majesty’s Dock-yard at Woolwich, where the chimney of the manufactory under his immediate superintendence, regulated according to his directions, offers an example of the little smoke that need be occasioned from steam-engine furnaces if care be exercised. He states that no peculiar machinery is used; the stoker or fire-keeper is only required to exercise care in not throwing on too much coal at once, and to open the furnace door in such slight degree as to admit occasionally the small proportion of atmospheric air requisite to effect complete combustion. Mr. Ewart also states that if the fire be properly managed, there will be a saving of fuel. The extent of smoke denotes the extent to which the combustion is incomplete. The chimney belonging to the manufactory of Mr. Peter Fairbairn, engineer at Leeds, also presents an example and a contrast to the chimneys of nearly all the other manufactories which overcast that town. On each side of it is a chimney belonging to another manufactory, pouring out dense clouds of smoke; whilst the chimney at Mr. Fairbairn’s manufactory presents the appearance of no greater quantity of smoke than of some private houses. Mr. Fairbairn stated, in answer to inquiries upon this subject, that he uses what is called Stanley’s feeding machinery, which graduates the supply of coal so as to produce nearly complete combustion. After the fire is once lighted, little remains to the ignorance or the carelessness of the stoker. Mr. Fairbairn also states that his consumption of fuel in his steam-engine furnaces, in comparison with that of his immediate neighbours, is proportionately less. The engine belonging to the cotton-mills of Mr. Thomas Ashton, of Hyde, near Stockport, affords to the people of that town an example of the extent to which, by a little care, they might be relieved of the thick cloud of smoke by which the district is oppressed.

At a meeting of manufacturers and others, held at Leeds, for the suppression of the nuisance of the smoke of furnaces, and to discuss the various plans for abating it, the resolution was unanimously adopted, “that in the opinion of this meeting the smoke arising from steam-engine fires and furnaces can be consumed, and that, too, without injury to the boilers, and with a saving of fuel.” Notice of legal proceedings being given against Messrs. Meux, the brewers in London, for a nuisance arising from the chimneys of two furnaces, they found that by using anthracite coal they abated the nuisance to the neighbourhood, and saved 200_l._ per annum. The West Middlesex Water Company, by diminishing the smoke of their furnaces saved 1000_l._ per annum.

The gas-companies in the city of London were indicted for throwing their refuse into the Thames, and compelled to dispose of it otherwise; and they found out that they had been guilty of waste as well as of nuisance; and it is stated that the whole of what was formerly cast away has now become an important article of commerce.

In the rural districts the Courts Leet have generally fallen into desuetude. In illustration of the feeble tenure on which they were held, I may mention that in some instances, where it has been necessary to disallow payments of fees paid to the officers of those courts from the poor’s rates, the stewards have stated that they should hereafter discontinue the courts; and it is probable that they did so. In the towns, Courts Leet are sometimes held, and inquest juries appointed; but it is objected to these bodies, and frequently to the bodies constituted under local acts, that they are usually composed of tradesmen who attend unwillingly and at an inconvenient sacrifice of time; who can have little or no information in respect to the evils in question; who have no arrangements to bring the evils in question before them; no time to master such information as may be brought before them casually; little interest and scarcely any real responsibility imposed for ensuring any mastery of it; and neither time nor adequate means at their disposal for the removal of such evils as those in question when they are presented to them, and proved to exist. Thus: two persons of respectability who were unexpectedly called upon to serve on a jury of this description in the metropolis, state that, as they had no properly qualified officer to instruct them, they were only directed to the performance of their duties by the accidental presence of a builder.

“When we were sworn in, we went over the district: we went through many places which were disgustingly filthy, that I have since learned were places where there is always fever, but we were not told about it; the afflicted knew nothing of our coming, and we had no medical officer, or means to enable us to detect the presence of any nuisances which would endanger the public health.

“The number of persons sworn in was twenty-four, of whom I can remember six were publicans (at one or other of whose houses we dined on the days of meeting), one or two cheesemongers, three or four tailors or drapers, one builder, and one bricklayer; the trades or occupations of the remainder I cannot remember. Of the twenty-four sworn in, twelve only served, and the duties were performed in rotation. An allowance of 2_s._ 6_d._ was given to each juryman for his expenses on the days of acting, with the exception of the foreman and the secretary, who had been unfortunate enough, or who, for some purpose of their own, managed to be sworn in on three or four previous occasions. None of the jury knew the nature of the duties further than that they were to examine weights and measures; that part of their duty respecting the removal of nuisances, or of things affecting the health or the lives of the inhabitants of the district which we perambulated, was entirely neglected or lost sight of; the only instance that I remember of any attention being paid to the subject, was that of the condemnation of an old house in a disgusting neighbourhood of houses; and in this case, although the house certainly looked in a bad condition, the jury were quite unable to come to a decision until the bricklayer and builder pronounced its condemnation, when the jury at once became unanimous, and condemned the house forthwith. My own impression was, that the house was not in a safe condition, but I felt, in common with others, (the tailors, drapers, and cheesemongers,) that however anxious we might be to discharge our duties faithfully, that the nature of our occupations did not at all qualify us to express an opinion upon the subject, and hence we were all guided and determined by the opinion of the bricklayer and builder who happened to be present. Had they not been present, we should probably have done nothing. It is only necessary for any sensible person to serve on such a body in a town to be convinced of its entire inefficiency.”

The district over which this jury perambulated was one in which contagious disease often prevails in its worst forms; and it is quite clear that, without appropriate arrangements, such a body would continue to walk over the ground, equally unconscious of the evil and impotent to effect its removal.

A civil engineer and surveyor of very high acquirements in the metropolis thus describes the qualification of persons serving on these inquests:—

“I speak from experience, having personally attended one of these inquests, with a view to give them the benefit of my practical knowledge; I did not find one of them amongst the twelve competent to perform usefully to the parish or the public the duties imposed upon them. I have known repeated instances in these united parishes, where ruinous houses have been permitted to remain for years without receiving any attention from the authorities, to the great danger of the occupiers and also to the public. I would instance two houses that to my certain knowledge have for ten or a dozen years inclined over in the street from the pavement upwards of eighteen inches, without being noticed by an Inquest Jury. My attention was lately directed professionally by the owner of the houses in question to their state and condition; upon a careful examination I found them so dangerous that I immediately gave directions to have them shored up, and recommended the tenant to vacate them in the meanwhile: to my great surprise, at the expiration of three or four days after the houses had been properly secured, the freeholders were served with a notice from the Inquest Jury to do what had already been done, viz., secure the houses from danger.”

A gentleman who has acted as one of the Commissioners under the Act for Bolton, thus describes the operation of its provisions:—

“We have an Act in Little Bolton with extensive powers for the preservation of the public health.

“I was appointed in 1837 one of the Trustees or Commissioners under this Act; they are elected by the ratepayers, and one-third go out annually; party political feeling has created a strife as to whether Whigs or Tories shall expend the public funds (the same is the case in Manchester), and hence a strife as to the economy of management. The streets are badly lighted, and sometimes not at all, to save the expense of gas. A surveyor is appointed in Little Bolton, whose duties are to see after the lighting, paving, cleansing, sewering, fire-engines, and firemen, the prevention of nuisances, encroachments, &c., &c.; to hiring and paying all the workmen, and buying the materials for repairing the roads and streets over a district containing about 15,000 inhabitants, for all of which service he receives 80_l._ a-year.

“With such talent as 80_l._ a-year will command, and such duties to perform, it may readily be supposed that sewerages and nuisances are liable to be overlooked.

“I once called the surveyor before a Board of about twenty Trustees, to draw attention to a pool of stagnant water lying in front of or betwixt two rows of cottages about 60 feet apart from each other, and about 150 feet long, covering nearly the whole of this vacant space of around from one to two feet deep; dead dogs, kittens, and other impurities in the height of summer were floating in it, yet I was unable to obtain an order for the surveyor to expend a few pounds in draining it off, or to compel the owner to do it, although situate in the centre of a very populous district; and it continued in the same state till built over by cottages the following year.”

The nuisances which favoured the introduction and spread of the cholera were for the most part evils within the cognizance of the Leets, and could not have existed had their powers been properly exercised, yet so complete was the desuetude of the machinery of these Courts that it appeared nowhere to be thought of as applicable, and the new and special machinery of the Boards of Health were created for the purpose of meeting the pestilence. There are no funds provided by which the common remedy by indictment could now be prosecuted: and since the most offensive and injurious nuisances are those supported by large capital, redress for the private injury is practically available only to persons who can afford to risk large sums in litigation. In one instance in Scotland, where the stream which supplied a village was discoloured and rendered disagreeable to the taste by some dye-works, a gentleman who took up the defence of the villagers, who were mostly his tenants, stated to me that the litigation incurred by an obstinate defence involved an expenditure of no less a sum than 4,000_l._, the whole of which he did not recover, and that from his own experience he was clearly of opinion no one who had not most inflexible determination, as well as ample means, would be warranted in entering upon such a contest. Powerful influence was used to induce him to stay the suit, and he was by persons of his own class regarded as the persecutor of the author of the nuisance.

The complication of various nuisances in some of the larger manufacturing districts has frequently become so great as to put them beyond any existing legal remedy, whether private or public, by placing out of the apparent possibility of distinct technical proof any injury or particular effect arising from any one. An instance of this is stated by Messrs. Paris and Fonblanque, where two indictments were preferred; the one preferred against the proprietor of a Prussian-blue manufactory; the other against a black-ash manufacturer; both of these works were situated in Seward-street, Goswell-street, London. The counsel for the defendant, in his cross-examination of the witnesses for the prosecution of the Prussian-blue maker, drew from them an account of the noisome vapours of the black-ash manufactury; while in the latter trial the same barrister made the witnesses declare the extreme stench of the Prussian-blue manufactory; so that in both cases the defendants obtained a verdict, because in neither case could the witnesses for the Crown unequivocally prove from which of the manufactories the nuisance complained of arose.

_State of the Local Executive Authorities for the Erection and Maintenance of Drains and other Works for the Protection of the Public Health._