practically carried out, although to some ex- Sir Denham Norreys proposes that every duced very remarkably to the material proelectoral division shall have its mayor or sperity of that country. chief magistrate; each union its president, We agree with Mr. Kay that the evil of our and each department its governor; the two system is, not the existence of great estates, first elected from their body by the magistracy but the non-existence of any class of small of the district, the latter appointed by Go- estates. The French system tends perhaps to vernment; while he would leave to a sense of diminish the number of large estates too public duty, and the honour which these situ- much, and in some cases to promote the diviations would confer on those selected to fill sion of estates when that division is not expethem, an equivalent for the small salary at- dient: but notwithstanding this, the effects of tached to each. The details of the scheme the small estates would seem to have surwe give in the author's own words :- mounted even the injurious effects of the The mayor," he proposes, "assisted by French extreme, as the following authorities the magistrates, should hold a Court of demonstrate. Petty Sessions weekly. He should be re- Le Comte Villeneuve Barjemont, who acted sponsible for the due investigation of all as préfet in one of the French departments, offences committed within his jurisdiction, and who has given great attention to, and The chief object which Sir D. Norreys has and for obtaining and arranging the evidence made many researches into, the causes of pauin view is to abolish that loose and partial required for the prosecution of offenders. In perism and the effect of the subdivision of administration of local justice, which has de- many parts of Ireland, one such officer would land, declares it to be his opinion that there moralized the middle and lower classes of Irish suffice for two or more electoral divisions. is no reason to dread an excessive subdivision society, and to substitute for it an unselfish "The President, too, is also to have his of the land. He says:-"If any one travels attention to the management of local affairs, Court. It might be composed of the Presi- through the agricultural districts of the greatand a high spirit of strict moral integrity and dent and two at least of the Mayors of elec- est part of France, where the land is subdivided devotion to public interests. The Poor-law sy-toral divisions, and be held at intervals of the most, he will find few paupers, few begstem in Ireland has already produced a benefi- from three to four weeks. It should be a gars, and few unemployed persons. The popu cial effect, and prepared the ground for an ex- Court of final appeal from the Petty Sessions, lation is moreover a stronger one, education is tension of the principle of self-government. and also have jurisdiction in cases of debt, not less diffused among them, and their moThe people are better prepared to take a share trespass, etc., to a limited extent. Its powers, rality is greater*." in the management of their own local affairs, in cases of offences against the person or proand although there have been instances of perty, should be far more extensive than that misconduct on the part of Boards of Guar- of the ordinary magistrate. This Court dians, yet as a whole the experiment of en- should be assisted by an Assessor, appointed trusting the community with enlarged powers by the Government, whose duty it should be of self-government has been so far successful to attend the several President's Courts within as to justify a still further extension. In the the department and to be the legal adviser of same way then that the people of Ireland the Governor. The President's duty would have the privilege of taxing themselves for be to watch over the course of justice within the relief of their poor, and have moreover his union, as well as the general management the general management of their Poor-law af- of its local affairs: he should be, in every refairs, Sir D. Norreys proposes to entrust to spect, the responsible head of the Union. their care the other great purpose of local taxation-the maintenance of roads and public works. 66 66 66 M. Passy, in a work entitled 'De la Divi. sion des Héritages, et de l'Influence qu'elle exerce sur la Distribution des Richesses,' which was published in 1839 in the Mé moires de l'Académie des Sciences Morales et Politiques,' tome ii. 2e série, p. 183 et seq., opposes the doctrine, that the great subdi vision of the land in France is likely to increase beyond its natural limits, so as to pau perize the small proprietors. He proves, that the small estates have just as great a tendency to unite, as the larger estates have to divide. He shows, that in the twenty years which lapsed between 1815 and 1835, during which period the population had increased fourteen per cent., notwithstanding the con The Court of the Department might be held at intervals of two months, and have a jurisdiction more extensive than that of the In the organization of his scheme he pro- Assistant Barrister. The Court should be poses to make the Public Works system co-presided over by a judge of legal standing tinued subdivision of the greater estates in terminous with the Poor-law system, to adopt fully equal to that of the Assistant Barrister, France; notwithstanding the increase of pothe present Unions and electoral divisions, in- and not specially attached to the department. pulation; notwithstanding that the same perstead of the baronies and counties, to give to The Governor and two, at least, of the Presi- sons were often entered in many different each division the power of electing one or dents should assist, and decide on the guilt communal registers as distinct proprietors ; more Road-wardens, to erect independent or innocence of the accused in criminal cases. notwithstanding the bringing into cultivation districts for the maintenance of all public The Assessor of the Department may be the of many waste lands; and notwithstanding works within them, and instead of counties public prosecutor: his circuits through the the building in the country districts of many to favour combinations of Unions, which shall Department, in attending the Presidents' manufactories, each of which is registered as be "departments" managed by a Council Courts, will have brought him into constant standing on a small estate of its own, the composed of deputies from the several Unions communication with the magistracy; he will number of the landed proprietors of France within them. Now, one advantage of such be their legal adviser, and responsible for the only increased eight per cent. "electoral divisions," unions," and de- sufficiency and relevancy of the evidence on partments," over the old baronial and county which the prosecution rests. To the full system, is to be found in the compactness of Court (viz. the Judge, the Assessor, the Gotheir form, and their far more relative equality vernor, and the two Presidents) a limited in value and area. Instead of long straggling amount of equitable jurisdiction might be and unequal districts, stretching some of them confided; its decision would not be the less over a vast extent of moor or bog, and others valuable because of strict law being mixed up only comprehending the more densely popu- with, and tempered by, unprofessional comlated parts of the country, the present Poor- mon sense and experience." law Unions are generally as compact in form, and as nearly equal in size, as a joint consideration of value, area, population, and facilities of natural communication can make them; and there is no reason why these identical districts should not be taken as the basis of the Public Works system: the more especially WE propose in this article to conclude our rewhile there is this evident advantage, that the view of the authorities in favour of the French ratepayers for the one purpose will be also the Land Laws. [Communicated.] THE FRENCH LAND LAWS. No. IV. One however of the most remarkable testimonies in favour of the system of peasant proprietors is M. Passy's account of the progress of agriculture in the department de l'Eure, in France, since 1800, when the lands began to divide, and when the peasants began to purchase farms. This department is, as Reichensperger says, singularly fitted to ex emplify the results of the peasant-proprietor system, inasmuch as it possesses no peculiar advantages over the other agricultural departments, and inasmuch as it contains few towns and no great number of manufactories. It is, in truth, simply an agricultural department. We shall not then be acting unfairly or illogically in adopting the results of the peasantproprietor system in this department as a fair illustration of its general results throughout France. M. Passy gives the following table, ratepayers of the other purpose, a circumstance Our object has been, as we have said before, Economie Politique Chrétienne, 1824, vol. i. p. 305. See also Mr. Kay's work on The Social Condition and Educa tion of the People,' vol. i., to which we are indebted for + Journal des Economistes, 1842, p. 44. Total Number of Hectolitres or Kilogrammes. Value of the Products, estimated according to their Mean Price at the Time. 1800. 1837. Kinds of 1,324,878 274,800,032 1837. 1,475,173 Hect. 1,742,729 Hect. Mixed Grain. 289,000 419,451 3,757,000 Francs. 23,502,768 Francs. 1,369,800 5,412,863 108,269 7,050 8,742 672,000 3,663,293 5,108,903 62,729,500 " 96,971,300 " 73,000 6,940 Hect. Natural Meadows.. Artificial Meadows Rye........ Buckwheat Barley Flax shows, as Reichensperger 71,073,436 Total M. Bertin, sous-préfet of the arrondisse- improvements, and to stimulate the discovery ment of Fougères, the most eastern district of new ones. of Brittany, says, in his excellent Report, The Prussian Minister of Statistics informs published in 1846*:-"It is only since us that in 1843 there had been founded in the peace that the agriculture of the ar- Francerondissement has made much progress; but from 1815 it has improved with increasing rapidity. If from 1815 to 1825 the improvement was as one, it was as THREE between 1825 and 1835, and SIX since that period." At the beginning of the century little wheat was cultivated, and that little so ill, that in 1809 the produce per hectare was estimated at only nine hectolitres. At pre use. 823 Agricultural Associations, 20 Model Agricultural Institutions, 9 Chairs for Agricultural Professors, and 4 Agricultural Institutes, founded for the promotion of the study of Agriculture in all its branches. The science and skill exhibited even now shame the ignorance and want of enterprise by many of the yeomen proprietors put to which mark so many of our farmers. ANGLO-SAXON INSTITUTIONS. Philosophical Society, entitled "Traces of the Settlement of the Saxons in England, particularly in reference to Lancashire." 66 sent M. Bertin estimates it at sixteen. The cattle, being better fed and crossed with more vigorous breeds, have increased in size and strength; while in number, horned cattle, between 1813 and 1844, multiplied from 33,000 to 52,000; sheep, from 6,300 to 11,000; swine, WE extract the following observations from from 9,300 to 26,100; and horses, from 7,400 an interesting paper read by Mr. J. A. Picto 11,600! New and valuable manures have ton, F.S.A., before the Liverpool Literary and been introduced, and have come largely into The extent of meadow land has increased, and is increasing, and great attention has of late been paid to its improvement. This testimony comes from an enemy of the The Saxons in the fifth century were not morcellement, who, however, states that it is advancing very slowly, and is not likely to mere savages, like the Britons when invaded by advance much further, the co-heirs not divid- Cæsar five centuries previously. Rude they ing each parcelle, but either distributing the were, and innocent of the softening influences parcelles among them, or disposing of them of literature and books; but they brought by private or public sale. Some farmers, he with them the elements of a social polity and says, who are also proprietors, have the good had in vain sought for under every form of order which the classical nations of antiquity says, sense to sell the few fields which belong to that in the thirty-seven years which elapsed them, in order to increase their farming capl-rant of the arts of civilized life. With the government. Nor were they altogether ignobetween 1800 and 1837, the value of the pro- which, he says, is not practised in his arrontal. M. Bertin is an enemy to stall-feeding, navigation of the stormy seas of the north of ducts of the department increased 54 per dissement. The increase of live-stock is Europe they were perfectly familiar. In agricent. while the population of the department only increased during the same time from therefore the more remarkable. Of the food culture they had made considerable profi403,506 to 424,762, or little more than 5 per it was composed almost exclusively of milk, In their laws and institutions the great leadof the inhabitants he says, not long ago character, had already begun to be cultivated. ciency, and poetry, of a nervous though rude cent.; so that in 1800 there was 128 francs' worth of agricultural products per head, while buckwheat cakes, and rye bread, but has in 1837 there was 162 francs' worth per head greatly improved in quantity, quality, and ing principle which pervaded the whole, and which was the centre (so to speak) to which But it will perhaps be asked, was there not variety, especially in the last ten years, and now consists of wheaten bread, or bread of all converged, and from which all radiated, a diminution in the number of cattle fed by two-thirds wheat and one-third rye, with but was that of individual and personal rights. the department during these years, to account for this increase in the amount and value of ter, vegetables, and, "in good farms," about In this respect the Saxons differed essentially the agricultural products? Quite the con- a kilogramme (or 24 lbs.) of pork per week have derived their laws from that source. for each person. trary; M. Passy says that there was, on the There is also some conother hand, a great increase, as exhibited in sumption of other flesh-meats among the la- Amongst the Saxons the individual was the the following table:bouring people, and the arrondissement con- unit, the aggregate of which constituted the tains sixty-three butchers' shops, where fifteen community. Amongst the Romans the comyears ago there were not thirty, the increase monwealth was the integer, of which each innot being in the towns (or rather town) but dividual was a fraction. In the one case soin the villages. The clothing of the rural ciety exists for the benefit of the individuals population is substantial, "and different for composing it; in the other, individuals and every season, which is always a sign of general the society of which they form a part. It is their interest are altogether subordinated to easy to perceive that, starting from such opAccording to one Report of the Central cases must be essentially different. In the posite points, the results arrived at in the two Agricultural Congress, which we have already Saxon race self-government and the wholequoted, it would appear that the people of some controlling power of a healthy public France, notwithstanding the vast increase of opinion, has rooted itself beyond the possibipopulation, live on better and more nourish-lity of being pulled up. Elsewhere we see ing food than formerly. From the report of the Central Agricultural Congress at Paris, published in the 'Journal des Débats,' 30th March, 1847, it appears, that in the year 1788 only 612 litres of wheat and corn were raised per hectare, and that from 1700 to 1788, that is, during the time when the land was consolidated in the fewest number of hands, agriculture made no progress. While in 1839, only thirty-nine years after the land was divided, 1301 litres of wheat and corn per hectare, i. e. MORE THAN TWICE AS MUCH PER HECTARE AS IN 1788, just before the land was divided, were raised in the whole of France, and in many departments as many as 1400 litres per hectare were raised! • Die Agrarfrage, p. 395. comfort;" and "persons in rags are very rare In 1760 only seven millions of the French people lived on wheat and corn, while in 1843 it was ascertained that TWENTY millions lived on this food, and that the remainder were much better nourished than at the previous period. from the classical nations, and those which spasmodic efforts fatal to the welfare and sethe good of society aimed at by a series of curity of the very individuals who compose the society. Saxons landed in Britain in the fifth and sixth "With such robust, healthy instincts, the centuries. To ascertain the mode in which But great as we have shown the progress these principles were applied,—and the counof agriculture to have been during the last try became gradually covered with a myriad thirty years in France, it seems reasonable to of communities, comparatively independent expect a still more decided progress during and self-governing, sometimes coalescing and the next thirty. Immense efforts have been again separating, until they became fused made to improve the science and practice of into a mighty whole,-though very interestagriculture, to introduce all the more recent ing, is by no means an easy task." The Parish. PRACTICAL POWERS OF PARISH VESTRIES TO THE EDITOR OF THE CONSTITUTIONAL. sired a 86 OPINION. control of the General Board of Health, or of ob- and how much more practical and adaptable taining a Local Act?" it is than any statutory provisions and regu lations can ever be. According to the letter I understand the main point of inquiry in of the Highway Act, every parish should apthe present Case to be, whether, in order to point one surveyor. But it appears that in the systematic adoption of measures for the Wilmslow there are four townships, each apmaintenance of the Public Health, and other-pointing its own surveyor, and making its SIR,-Having felt it my duty to consult wise for the Public Welfare and convenience, own highway rate. And this arrangement, counsel respecting the powers that may be put it will be necessary to have recourse to a local voluntarily made from ancient times, for the in force by the inhabitants of a parish, as to act of Parliament or to the machinery dictated mere convenience of the parish, though withvarious matters of Local management, I de- by the Public Health Act,-or whether, by out any statute to support it, and even in conCase" to be submitted to Mr. Toul- the law of England, other means exist by tradiction to the express terms of the Highmin Smith, who is well known to have given which the desired ends may be attained, and, way Act, would unquestionably be sustained so much attention to this subject. His opini- at the same time, the parish not be made in any court of law, notwithstanding the letter on has just been received; and the suggestions subject to the interference of a body of cen- of the Highway Act; and any of the four contained in it appear, especially at the pre-tral functionaries, such as the General Board separate rates so made can be enforced by all sent time, so important practically to all pa- of Health. process of law. rishes in England, that I hope you will be I will state distinctly, at once, that the able to find a place in the forthcoming Con- Common Law of England affords means and stitutional for the copy of that opinion, which machinery much more complete and compre- (1.) I have no doubt whatever that the inI now enclose. The Case" submitted being hensive, as well as much more simple and in-habitants of the parish of Wilmslow have, at necessary in order to understand the "Opi- expensive, than any Local Act can supply, or Common Law, ample powers to do all that is nion," I enclose a copy of that also. than those provided by any of the statutes intended under the terms "cleansing, sewerwhich have, under an artificially created and ing, lighting, watching, and regulating the directed current of public excitement and said parish.' In illustration of this, I may OF THE PARISH OF WILMSLOW, last few years, under the name of measures following, and all things of like nature, are legislative action, been passed, within the remark that it is beyond question that the I am, your obedient servant, CHURCHWARDEN CHESHIRE. CASE. "The Parish of Wilmslow is situated in the County and Diocese of Chester. It contains four Townships-Chorley, Fulsham, Bollin Fee, and Pownal Fell; each of which appoints surveyors and overseers to attend to its business respectively, and each has a separate rate. The parish has, by the census of 1851 (which was the last), 4952 in habitants; namely, the Township of Chorley 803 With reference, then, to the four questions specifically put in the Case : for the promotion of the Public Health. And nuisances at Common Law, for which redress the reason of this is obvious enough. The can be had by Common Law process of the Common Law is based upon broad fundamen- simplest kind. (See 8 Coke Rep. 41 a; 11 ib. tal Principles, which are in themselves com- 45 a.) prehensive, and universally applicable_and It is a wrong against the public, specifically adaptable. But all such legislation has been punishable, if any man open a ditch on a highempirical; and, however benevolent might way. be, and undoubtedly have been, the motives of some of its promoters, it has been framed punishable, if any ditch on or near a highway It is a wrong against the public, specifically from, and is adaptable only to, a few special be not kept cleansed. and always picked cases. In other cases, Fulsham...... 358 Bollin Fee... 1,884 always the great majority, it will be inappliPownal Fell 1,907 cable, and therefore mischievous. Being thus "Sir Humphrey de Trafford, Baronet, is Lord empirical, and therefore not calculated to of the Manor of Bollin cum Norcliffe, which com- commend itself to common good sense, it prises a great portion of the parish. The Right seeks to enforce itself by means inconsistent Honourable the Earl of Stamford and Warrington with the maintenance of that spirit of indeis Lord of the Manor which comprises the re-pendence and self-respect which every true sidue of the parish. At the Courts Leet of each statesman must seek to maintain and elevate of these Manors, "Common Lookers" and other and act through-instead of to coerce. Manorial officers are appointed, and nuisances are presented*. Parish of It is a wrong against the public, specifically punishable, if a laystall be made on any highway, or carrion or offal be thrown thereon. It is a wrong against the public, specifically punishable, if any obstruction whatever be put on, or left on, any highway. punishable, if any footpath (as across a field It is a wrong against the public, specifically or otherwise) be ploughed up or made less convenient for common use. It is a wrong against the public, specifically punishable, if any water of which the public has use have impurities thrown in it. The first principle of the Common Law is, "Some individuals residing in the parish are de- that no man can be allowed so to hold or sirous that the Public Health Act should be brought occupy any property, or do any act, as to eninto operation within the parish; but the general danger the convenience, comfort, or health of It is a wrong against the public, specifically feeling is against the introduction of the powers his neighbours. And the practical machinery punishable, if any common watercourse be of the Act, which would bring the Townships provided by the Common Law for giving effect obstructed or befouled. under the control of a Central Board in London, to this principle is very simple. It continu- It is a wrong against the public, specifically and thus interfere with their independent action. ally and wholesomely calls, it is true, on every punishable, if any house near a highway be in "It being desired to adopt active measures for man to remember that, if he claims the ad-such a state as to be a nuisance or dangerous. the welfare of the parish, Mr. Toulinin Smith is re-vantages of citizenship, he himself owes duties quested, at his earliest convenience, to advise on and has active responsibilities to his neigh- punishable, to make any house-of course It is a wrong against the public, specifically the following points:"1. What powers have the inhabitants of the ties, properly discharged, impose no heavy bourhood. But those duties and responsibili- without due regulation and sanction—the relighting, watching, and regulating the said parish, rule of doing to one's neighbour as one would Wilmslow for cleansing, sewering, burthen. They do but realize the Christian ceptacle for a number of poor inmates (what is now called a "common lodging-house"). "2. What powers are vested in the inhabitants be done by. There can be no doubt that, (or in the justices, churchwardens, overseers, sur- with reference to the question of the Public veyors of highways, and other officers) by any (and Health itself, the language of Lord Coke will, what) statutes for the foregoing purposes? before long, have proved as truly prophetic "3. What powers are vested in the said inhabi- as it has done in so many other cases :tants (or the parish officers) for levying rates, or "Albeit sometimes by Acts of Parliament, raising money by mortgage or otherwise, for the and sometimes by invention and wit of man, foregoing purposes? some points of the Common Law have been 4. What practical measures would Mr. Toulmin altered or diverted from their due course, Smith advise the parishioners or inhabitants of Wilmslow, and on their behalf the Churchwardens yet, in the revolution of time, the same, as the of the Parish, and the surveyors or overseers of safest and faithfulest bulwark of the common the four townships into which it is divided, to weal, have been, with great applause, for adopt, in lieu of placing the district under the avoiding of many mischiefs, restored again." (3 Reports, p. 18.) at Common Law? The facts in this paragraph were added, on the re Mr. Toulmin Smith had been led to suppose, in the first quest for further information, after the Case was first sent. low (and some such facts, though differing in The facts stated as to the parish of Wilmsinstance, that the Leets only met formally. Hence some of each case, will be found in almost every parish the observations in the "opinion"; which, however, as in England) afford, in themselves, a striking they apply to the general question, are retained in the pre- illustration of the force of the Common Law, sent copy of that opinion.-Churchwarden of Wilmslow. It is a wrong against the public, specifically punishable, if any act be done by which conta gious or infectious disease may probably be spread. 66 And every Leet is bound to make special inquiry, at every one of its periodical meetings, if there be any ways, waters, ditches, or paths obstructed or stopped, or turned out of the right course to a wrong course, unto the nuisance of the King's people; etc., etc." Defects, or want of proper fulfilment of duty, are as great and punishable public wrongs at Common Law, as are direct infringements of a public right. Law, if any of its highways (which term, it Thus, every parish is indictable at Common must be remembered, includes all footpaths) are out of repair, or unfit for convenient use. The parish is even indictable for the bad state of a turnpike-road, so complete is the local it results from the careful comparison of the seeing measures of public utility adopted responsibility recognized and enforced. most authoritative decisions in many cases. has the fullest opportunity of propounding The above are merely stated as illustrations. One, in the Year Books, 21 Hen. VII. Easter and supporting them, and bringing them conIt is the important and invaluable character- term, No. 2, compared with 14 Ed. III. Tri- tinually under public attention. The mere istic of the Common Law of England, that it nity term, No. 13, and with Coke as above, party or personal feelings and cliquish conis adaptable to every contingency and condi- serves well to illustrate it. It cannot but be trivances that always influence elections of tion, and to every progressively felt want of seen that to nothing can this principle more small bodies (especially under the very unsamen in society. directly apply than to matters affecting the tisfactory provisions for election of " Local The Common Law unquestionably provides, Public Health. Boards of Health") cannot thus affect the with entire efficiency, for the Watch and Ward The very word "Bye-Laws" is, indeed, one public welfare, or neutralize the efforts of any of every place. It is greatly to be regretted which may be said to prove itself. It is found, individuals for the common good. It must that this efficient system has become gradually in this English form, in the oldest records of be remembered that it is not only manorial superseded, in consequence of various statutes, the adjudications of the highest courts. Bye tenants that are bound to attend the Court by experimental systems notoriously less effi- is an ancient Saxon word, meaning inhabited Leet, but that every inhabitant is so, precient and satisfactory. I shall presently point district-Parish. It ends the name of many cisely as in the case of the Vestry. By the out what means, more in accordance with the English towns and parishes ;;-as Der-by, Sel- Common Law system the responsibility is spirit of the Common Law, can be adopted in by. Harrow-by, Nether-by. The most literal fixed on every one of fulfilling his duties to this respect. meaning of Bye-Laws" is, Local Ordi- the community; and every man is taught that The Common Law clearly recognizes the nances, more particularly such as the Ordi- he cannot live in mere isolated selfishness and power of any community to make such Regu-nances of a Parish Vestry. They are even for himself alone. The superseding of this by lations, on any matter relating to its own in- thus called "ordinances" in the old records. a system which encourages indifference to the ternal management and affairs and common The following instance may be usefully quoted, claims of good neighbourhood, and neglect of welfare, as it pleases; and upholds its full au- as illustrative, at the same time, of the ge- personal duties, under the plausible appearthority to carry such regulations out, even by neral point, and as proving this use and in- ance of providing a vicarial instrumentality the utmost process of the law. Lord Coke terpretation of the word in a record which, and a superintending control, can only have expressly says, that the "inhabitants of a in itself, much more when expressly applied an effect as permanently inefficient and pertown, without any custom, may make ordi- by Lord Coke, no court of law in England nicious, physically, as it must always be monances or bye-laws for the reparation of the could venture to treat as of otherwise than rally contracting and degrading. The aim church, or a highway, or of any such thing the highest authority. It is extracted from of the statesman and philanthropist should, I which is for the general good of the public; the same case (of a Parish Vestry) as was apprehend, be to make all men feel the more and in such case the greater part shall bind stated above to be referred to by Lord Coke: deeply and really the responsibilities that atthe whole, without any custom." The word "There is the usage, through the length tach to them; not to provide them with an "town" is here used in the sense of "vill;" and breadth of the land [per my per tout le excuse for slurring over or unheeding those that is, any inhabited district united together terre], for laws called Bye-Laws [so in responsibilities. The Common Law machiby common tie. In the case more particularly original]-to wit, by assent of the neighbours, referred to by Lord Coke in the passage for raising money to make a bridge, or a quoted (Year Books, 14 Ed. III., Trinity causey [embankment], or sewer, and for asterm, No.13), the question arose on a distraint sessing every man in a sum certain, and that made, under a bye-law of a Parish-Vestry, by they shall be able to distrain for this. collectors of a rate made and authorized only And this thing is done throughout the land, (as was also the appointment of the collectors and avowry maintainable for that reason in themselves) by vote of the Vestry. And Lord this case. And if all the neighbours will not Coke himself reports the decision of the come, after warning duly given, nevertheless (2.) With reference to the powers vested in highest court in another case (5 Reports, p. those who have made default will be bound, the inhabitants by any, and what, statutes for 67 b),-in which one not present had re- as much as those who were present. . . . If the foregoing purposes. It must be remarked sisted payment of a rate made by a vestry,- such ordinance' [so in original] be made that the danger of citing and relying on stain the following remarkable and universally for a thing touching a probable common da- tutes in such cases is, lest men should imapractically applicable words:-"He may mage,-such as to make a bridge, or causey, gine them to be the law, instead of mere come, if he will, to the assemblies of the pa- or sewer,-the Law as thus stated is beyond special modes of the statement of the law. rishioners, when they meet together for such doubt. But, if it be only for the advantage Common Law must always be superior to Stapurposes. And the churchwardens and of individuals [instead of the public], none tute Law, and of far wider application; and greater part of the parishioners, on such ge- will be bound except those who have ex- this should never be lost sight of in the citaneral warning met together, might make pressly assented: et sic nota." The very ex- tion and application of Statute Law. It is such a tax by their [bye-] law." ception thus noted, does but mark the Com-true that the re-declaration, by statute, of mon Law principle as to the validity of all true Bye-Laws the more strongly. nery has the former effect inherent in its very action, and should therefore be specially cherished. The bureaucratic systems carved out by statute have the latter as their immediate and necessary consequence. The one system teaches and requires men to put forth their own efforts; the other invites and lulls them into dependence upon functionaries. It has indeed often been declared, in cases Common Law powers has been a course often like the above, of distraints made under local usefully adopted, in order to call attention to bye-laws, by all the judges of the highest It is stated that there are two Manors in special matters. And such statutes are valucourts, that "those present in a Leet can make the parish of Wilmslow, which hold their able precisely in so far as they are truly debye-laws, and their own assent shall bind Leets. But I gather that these have become claratory only, instead of attempting to limit them. And the inhabitants of a vill [parish] nearly formal. There is no reason that they or fetter the freedom of Common Law accan make bye-laws which shall bind them."- should be allowed to remain formal. It is tion by imposing formulas or restraints or (Year Books, 11 Hen. VII. 14 and 21 Hen. their duty, which they may be compelled to special modes. And it is essential to reVII. 40, etc.) Many other similar formal fulfil, periodically to inquire of all such mark that the rule of interpretation of such declarations of the Common Law on this mat- nuisances as have above been indicated, statutes is, to treat them as supplementary to, ter might be quoted. It may perhaps be and of all others of like nature. That they and not as overriding, the Common Law. In thought remarkable that there happens to re- have neglected, or now neglect, to do this, order to the proper practical application of any main a case recorded in which it is specifically is a breach of duty. To do it again, as such statutes, this must never be forgotten. declared that "a vill can elect men to punish was formerly the case, and is now legally Attention has already been called to the illusnuisances not remedied, or to assess the pe- bound to be the case, in every manor, would tration afforded of this by the fact of four nalties in their bye-laws touching all fences, be practically free from any expense whatever; townships, with separate surveyors to each, highways, and other petty nuisances." (Year whereas a "Local Board of Health" under existing in the parish of Wilmslow. Book, 21 Ed. IV. 54.) the Public Health Act will be a very expenIn order to understand the effect and opeThe clear Principle on which such Bye- sive matter, and will not, if it exist, embrace ration of these statutes, it is further necesLaws rest is this:-that, wherever there nearly all the powers and means that the sary to remark, that it has been the soundly would be damage, danger, or inconvenience Court Leet and Vestry may bring into opera-practical custom in England for many centu to the community but for a given bye-law,- tion. The action of the Leet and Vestry has ries, for the business of parishes to be done by which damage, danger, or inconvenience that moreover this great advantage, peculiarly public free discussion being first had upon it in Bye-Law is passed in order to help to find a important in questions relating to the Public open Vestry; and then by the appointment of remedy for, such Bye-Law is the fulfilment Health,-that every man who has any com- special persons as committees to carry out the of a common duty, and unimpeachable. I do plaint to make can be immediately heard, result resolved on, the responsibility of whom not cite cases in proof of this position, because while every one who is really desirous of to the vestry appointing them is reserved. I think it further necessary to call atten- for me to state that the true meaning of the those townships is a "place" within the tion to the special class of facts whence result word "sewer" is, a protection against the meaning of the section as it stands. The those conditions which have the widest influ- flooding of land by sea-water (sea-ware). churchwardens of the whole parish will stand ence in reference to the public health. Deep trenches were cut, or high banks raised, in the same relation to each of these "places" The parish is bound to every individual of as the case might be (more commonly the as they do to the "parts" of parishes in the its members that it will keep all the high- former), for this purpose. The Law of Sewers Act to be next named. ways, the means of intercommunication, in does not apply in any place which can be As regards lighting and watching, there is sound repair. To this end, every highway proved not to be within reach of the flow of a declaratory Act which is, with a few excepmust be made of a more or less well-marked the tide. It is only a very recent and most ill- tions, entirely consistent with, and declaraarched shape, and always with special pro- advised perversion of the original purpose of tory of, the powers already stated to exist at vision of water-tables. Else the roads will sewers, in and near London, (the entire cause Common Law. The Act which I refer to be soon rotten and flooded. But, unless what of the present pollution of the Thames,) that has cannot, I apprehend, be so well known as it is collected on the water-tables be clearly car- led to the misuse of the term. And the word, should be, or almost all the parishes of Engried off, a nuisance will arise to the public with the corrupted meaning hence derived, land would certainly long since have carried from the very conditions provided in order to has been used in Acts of Parliament passed into effect the practical measures which it secure highways without nuisance. Conse- in and since 1848, entirely through the want declares. It has, however, been applied in quently, it forms an immediate and insepara- of knowledge, on the part of the promoters very many cases. It has been rarely in the ble part of the management and keeping of and framers of those Acts, of the history and history of English legislation, that so useful the highways, that all neighbouring ditches, practical management of the matters with an Act, or one so thoroughly declaratory of watercourses, etc. be kept clear and unfouled. which those Statutes profess to deal. Hence the spirit of the Common Law, as practically And, as the very existence of water-tables and this word cannot, of course, be found in any applied to certain purposes, has been put ditches affords means, without watchful care, of the Highway Acts: but the words "drains, upon the Statute Book. It is far more comfor the selfish and thoughtless to deposit, and watercourses, trunks, tunnels," etc., etc. cor- prehensive and practical, because more in so get rid of, domestic accumulations, it be- rectly express what the loose phraseology of accordance with the Common Law, than anycomes a part of the necessary duty to take late Public Health Legislation incorrectly thing in the Public Health Act. The carrycare that no offensive matter be let lie on the calls "sewers." ing into effect of the powers of this Act will highway itself, or be cast or flow into watersave the entire expense attending private local tables or ditches. These duties, arising out Acts for lighting or watching. of the management and responsibilities as to highways, have been always recognized. Any provisions in any statutes on this matter are merely declaratory, except where, by careless wording, any statute has seemed to narrow the Common Law responsibilities. These remarks will serve to show how fully the law relating to highways is applicable in reference to the " cleansing and sewering mentioned in the Case. They will also help in the comprehension of what any statutes declare in reference thereto. In the Highway Act of 5 & 6 Will. IV. the clause as to cleansing and scouring was, by some accident (differing therein alike from the Common Law, and from the older declaratory Statutes), put as permissive only. In an Act passed in 11 and 12 Vict. c. 123, however, this defect was, in consequence of intimations which I had the opportunity of making, corrected, and the clause was made again truly declaratory of the Common Law; that is, the cleansing, etc., is now declared to be imperative, and not merely permissive, on the surveyors (§ 6). 66 It will be sufficient to state that, as to lighting, this Act (3 and 4 Will. IV. c. 90) recognizes the full and complete power of any parish, or part or parts of any parish. to determine to set on foot, and carry out fully, measures and works for public lighting, in any way it thinks fit, by the simple old Common Law machinery of a bye-law resolved on in public meeting summoned by the highest parish officers (the Churchwardens), on due warning; which meeting those officers are It is proper for me to notice here, that, on bound to summon on requisition of three or The present Highway Act (5 & 6 Will. IV. the third reading of the Public Health Act, more parishioners. Responsible managers c. 50) declares the Common Law duty of the 1848, a clause was put in which forms "an are, as accustomed at Common Law, to be surveyor to “repair and keep in repair the exception to the ordinary machinery of that elected. There is the recognition, also, of several highways in the parish for which he Act" (as is admitted in the edition of that the necessary means for raising such amount is appointed (§ 6). It also declares the Act sanctioned by the Board of Health, p. 83, of money for the purpose in question as the penal consequences of, among many other note g), inasmuch as it is, like the most useful inhabitants shall determine on, from year to nuisances to highways, any one suffering parts of the Highway Act, mainly declara- year. All the proceedings, elections, and "any filth, dirt, lime, or other offensive mat- tory of the Common Law, and therefore sim- otherwise, are, in accordance with the Comter or thing whatsoever, to run or flow into or ple and practical. It runs on all fours with mon Law, to be at open public meeting, duly upon any highway from any house, building, the sections of the Highway Act last cited, summoned and after due warning:—by which erection, lands, or premises, adjacent thereto except in attempting to place a limit to what means alone thorough responsibility, and the ($72); and of any timber, stone, hay, straw, are the Common Law powers of every vestry. carrying out of what the public interests dedung, manure, lime, soil, ashes, rubbish, or It declares (§ 50) that, in any parish or place mand, can ever be ensured. other matter or thing whatsoever," lying upon of less than 2000 inhabitants, if it appear to The same Act also declares powers for any any highway so as to be a nuisance (§ 73). It a majority in public meeting duly summoned, parish, under similar arrangements, to “apis obvious how widely applicable these decla- that any pond, pool, open ditch, sewer, drain, point and employ such number of able-bodied ratory clauses are to the matters now in ques- or place containing or used for the collection watch-house keepers, sergeants of the watch, tion. Little is needed beyond the real fulfil- of any drainage, filth, water, matter or thing watchmen, patrols, street-keepers, and other ment by the surveyors of their duty, and, to of an offensive nature, or likely to be preju- persons, as they shall think sufficient for the prothis end, the exercise of an active supervision dicial to health, should be drained, cleansed, per protection of the inhabitants, houses, and over them by the vestry which appoints them. covered, or filled up,--or that a sewer should property, streets, and other places within the But to the above are added two clauses, both be made or improved, a well dug, or a pump limits of this Act, by day or by night, or by of them also only declaratory of the Common provided for the public use of the inhabitants; day and by night; and provide for the use of Law, which enumerate the duty of the sur- either or all of these things may be done, all such watchmen, etc., such clothing, arms, veyor to "make, scour, cleanse, and keep subject to the approval of another public ammunition, and weapons, and assign to them open all ditches, gutters, drains, or water- meeting, after plans and estimates obtained, such beats, rounds, and duties, etc., etc., and courses; and also to make and lay such and without any interference of the Board of such wages, rewards, etc.," and all otherwise, trunks, tunnels, plats, or bridges, as he shall Health or any other Body. The expense can as they shall think fit. No parish can desire deem necessary, in and through any lands or be paid out of the poor-rates. anything much more specific and clear, in the grounds adjoining or lying near to any high- I am of opinion that, even supposing the way of recognizing its Common Law powers way" (§ 67). And the penal consequences words "two thousand" are to be taken as as to lighting and watching, than is found in are declared, if "any owner, occupier, or a limitation in this section, (as against the this Act. other person, shall alter, obstruct, or in any Common Law power,-which however I con- It would be improper to pass over this manner interfere with any such ditches, gut-sider to be a position that cannot, on a correct branch of the questions in the Case without ters, drains, or watercourses, trunks, tunnels, view of the subject, be maintained,) this limi- alluding to the Nuisances Removal Act of 11 plats, or bridges, after they shall have been tation cannot affect the parish of Wilmslow. and 12 Vict. c. 123. From what has already made by or taken under the charge of such Having been divided, from a remote time, been said, it will be perceived that the greater surveyor (§ 68). into four townships, each having separate part of the cases named in this Act are really It will be observed that the word "sewer" surveyor, overseers, and rates, and the po- embraced within the Highway Act. s not found in any of these declaratory pulation of no one of these amounting to additional matters, which are nuisances at clauses. To explain this, it becomes necessary 2000, I am clearly of opinion that each of Common Law, are however included within Some |