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:—
“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.