to these large holders we get no rates.
How is it that you obtain no rates from these classes of
cottages?—Because they are tenanted by the lowest class of persons who
have nothing in their houses from which we could recover the rates.
What are the rents paid from these cottages?—The rents vary from 1_s._
to 2_s._ 8_d._ each house. The average would be about 2_s._ a-week.
What would be the amount of rates on this cottage property if payment
were enforced?—From the 1_s._ a-week cottages the rates would be 6_s._
per annum; from the others, 12_s._ per annum. Last quarter there were
nearly 300 people excused; and the total amount lost for rates excused
and houses empty was 900_l._
What proportion does that bear to the whole rates for the quarter or
for the year?—The loss for the year would be 1800_l._, and the rate
last year was 8726_l._; the amount collected was 5900_l._; but the
arrear of the former year would be in round numbers about 2000_l._
more.
Is the tenantry of these cottages a fluctuating tenantry?—Yes, very
much so.
Are these tenements taken on the expectation that the rates will be
excused?—Yes; in many cases they are told when objecting to the
payment of the rent that they will have no rates to pay.
Considering the qualities of the tenements, are the rents charged
really high rents?—Yes, they are.
Are they such rents, as would justify the levy or the deduction of
rates from the proprietor, comparing them with the rents paid for good
property?—Yes, they are such rents; the house which I live in, and for
which I pay rates, and pay 8_l._ a-year rent, is a house of three
rooms on a floor, two floors, detached yard, and every convenience;
whilst cottages of a very inferior description, with two rooms only on
a floor, are as high rented and pay no rates.
Are the rents from the inferior tenements rigorously exacted?—Yes,
they are.
Are the occupants of these houses frequently applicants for parochial
relief?—Yes, they are.
Do any numbers of them receive relief?—Yes, they do.
What is the average amount of weekly out-door relief given to the
recipients?—Perhaps about 3_s._
Then the average relief is of the average amount of the rent of the
tenements you describe?—Yes; and I have no doubt that much of the
relief has gone to pay rent.
If the rates were duly exacted, do you think it must follow that the
unduly high rents must be lowered in proportion?—Yes, they must.
If the landlords were compelled to pay the rates, what would be the
saving to the town?—1_s._ in the pound.
And no additional burden cast on the labouring classes?—No material
additional burden.
Of course the diminution of out-door relief would diminish the means
of unduly paying high rents?—Certainly, it would.
The sanitary condition of many of these dwellings is described in the
reports of Mr. Bland, the medical officer already quoted.
It may hereafter excite surprise, that the labouring classes have
hitherto been left exposed to such influences as those described in the
last evidence, and in the evidence previously cited, as to the
pernicious operation of exemptions from payments of rates on the parties
intended to be benefited.
My inquiries into the effects of the administration of the old poor law
brought before me numerous instances of such devastation, the effects of
which would not be obliterated during the lives of a generation.
Examples might also be presented of the deterioration of property by the
irruptions of an ill-regulated population by the running up of undrained
and badly-constructed dwellings in the finest suburbs of the metropolis,
and other towns throughout the country. Any regulations of the nature of
Building Acts confined to towns, or to particular districts, or that
were unequally or oppressively administered, must powerfully tend to
increase such evils to the labouring classes, to the ratepayers, and to
the owners of all suburban property.
Frequent opportunities are, however, presented and commonly lost for the
erection of improved tenements for the use of the labouring classes, on
the occasion of taking down old tenements and erecting new ones to form
new streets, under the authority of Buildings’ and Towns’ Improvement
Acts. It is usually assumed that the general effect of the “clearances,”
as they are called, occasioned by the formation of new streets, though
attended with the present inconvenience of disturbing the occupants, is
ultimately of unmixed advantage, by driving them into new and better
tenements in the suburbs. I have endeavoured to ascertain by inquiries,
with the aid of the relieving officers, how far the assumption is
justified by the experience of such alterations as have been already
made in some of the crowded districts of the metropolis, by taking down
inferior tenements to form new streets.
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.