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 10s. 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:—