CHAPTER V
EARLY ROAD LEGISLATION
It was in the year A.D. 411 that the Roman legions were withdrawn from Britain, and it was not until 1555, or 1144 years after their departure, that the first general Act was passed, not for the construction, but for the repair of roads in this country. In the meantime such further construction or repairing as was actually done had been left to the Church, to private benevolence, to landowners acting either voluntarily or in accordance with the conditions on which they held their estate, or to the inefficient operation of the common law obligation that the inhabitants of a parish must repair the highways within the same.
A writer in 1823, William Knight Dehany, of the Middle Temple, in a book on "The General Turnpike Acts," comes to the conclusion, after careful research into the records of this early period, that "With the exception of the principal roads communicating with the important sea ports and fortresses of the Kingdom (probably the four great roads formed either by the Romans or Saxons), the other highways were but tracks over unenclosed grounds, where the passenger selected his path over the space which presented the firmest footing and fewest impediments, as is the case in the present day in forests and wastes in remote situations." He considers that when packhorses only were used for the transport of burdens, the state of the roads was not a subject of much interest and importance; but certain it is that the subject became more acute when the greater traffic that resulted from expanding trade and commerce led to the roads getting into an even worse condition than they had been in previously.
The earliest road legislation that can be traced was an Act passed in 1285, in the reign of Edward I., directing that on highways leading from one market town to another "there be neither dyke, tree nor bush whereby a man may lurk to do hurt within two hundred feet on either side of the way"; but this measure was designed for the protection of travellers against robbers, and had no concern with the repair of the roads. In 1346 tolls were imposed, by authority of Edward III., for the repair of three roads in London, namely, "the King's highway between the hospital of St. Giles and the bar of the old temple (in Holborn)"; what is now Gray's Inn Road ("being very much broken up and dangerous"), and another road, supposed to be St. Martin's Lane. These tolls, according to Macpherson's "Annals of Commerce" (1805) were to be imposed for a period of two years upon all cattle, merchandise and other goods passing along the roads in question; they were fixed at the rate of one penny in the pound on the value of the animals or goods taxed, and they were to be paid by all persons, except, curiously enough, "lords, ladies, and persons belonging to religious establishments or to the Church." Then, in 1353, "the highway between Temple-bar and Westminster being already rendered so deep and miry by the carts and horses carrying merchandise and provision at the staple that it was dangerous to pass upon it," the King required the owners of houses alongside to repair the road in consideration of the increased value of their property owing to the establishment of the staple.[[5]]
Reference has already been made (page [13]) to the concession by Edward III. to "Phelippe the hermit" of the right to impose tolls for the repair of the road on Highgate Hill. Macpherson further says, under date 1363:—
"The equitable mode of repairing the roads by funds collected from those who used them was now so far established that we find, besides the renewals of the tolls for the Westminster road almost annually, tolls granted this year for the road between Highgate and Smithfield, for that from Wooxbridge (Uxbridge) to London, and for the venel called Faytor (Fetter) lane in Holburn."
In the reign of Henry VIII. the first Statutes relating to particular highways were passed, a lord of the manor in Kent, and another in Sussex, being empowered to construct certain new roads, at their own expense, and then enclose the old ones for which the new would be substituted; but the Act of 2 and 3 Philip and Mary c. 8, passed in 1555, was the first Highway Act in this country which applied to roads in general.
"Commerce," says Macpherson, "beginning to increase considerably in the reign of Queen Mary, and the old roads being much more frequented by heavy carriages" (a term applied at this time to wheeled vehicles of any description), the Act was passed with a view to securing a much-needed improvement. After declaring, in a preamble, that the roads had become "both very noisome and tedious to travel in and dangerous to all passengers and carriages," the Act directed that constables and churchwardens in every parish should, during Easter week in each year, "call together a number of the parochians" and choose two honest persons to serve for twelve months as surveyors and orderers of works for amending parish highways leading to any market town. These surveyors were authorised to require occupiers of land to attend each Midsummer with wains, or carts, in proportion to their holdings, such carts being furnished, after the custom of the country, with oxen, horses or other cattle and necessaries, and to be in charge of two able men. All other householders, cottagers and labourers, able to work and not being servants hired by the year, were to furnish work in their own persons, or by deputy, bringing with them "such shovels, spades, pikes, mattocks and other tools and instruments as they do make their own fences and ditches withall." Work was to be carried on for four days, of eight hours each, unless otherwise directed by the supervisors; and constables and churchwardens were "openly in the Church to give knowledge" of appointed days. Fines for default were to be imposed at leets or quarter-sessions.
This Act was to remain in operation for seven years. In 1562 it was continued by 5 Eliz. c. 13, which, in addition to giving compulsory powers to obtain materials for road repairs, increased the "statute" labour, as it came to be called, from four to six days each year.