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.