Statutory Authorities for Special Purposes

With a Summary of the Development of Local Government Structure

Sidney Webb, Beatrice Webb

• Publisher: Routledge
• Year: 2022
• ISBN:
  9780429631757
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Originally published in 1963, this volume is devoted to an analysis of the organisation of the Commissioners of Sewers, the Incorporated Guardians of the Poor, the Turnpike Trusts and the Improvement Commissioners, and depicts the important development of these bodies during the eighteenth century. By examining the constitutional features of these statutory authorities Mr. & Mrs. Webb support their main contention that here are to be found the beginnings of most of the Local Government services of the present day.

But to most readers the chief interest of this volume will lie in the last two chapters, which analyse the whole development of English Local Government from the Revolution to the Municipal Corporations Act. This description of how the 'Old Principles' between 1689 and 1835 were gradually superseded by the 'New Principles' affords a convenient summary of the first four volumes.

CHAPTER I

THE COURT OF SEWERS

IT is difficult, in the twentieth century, to form any adequate conception of the extent to which the England of the Middle Ages, or even down to the end of the seventeenth century, was made up, to use the picturesque words of “the famous and learned Robert Callis,” himself a Lincolnshire Sewer Commis sioner, of “huge, great and vast fens and marishes.” ¹

In the eastern counties, what is now the great level plain of the Fenland was, every flood-time, for literally hundreds of square miles, one broad waste of water, and of water, as Defoe says, “the colour of brewed ale”;¹ in some parts deep pools and river channels, elsewhere merely beds of waving rushes, bog myrtle and flowering grasses, the home of innumerable wildfowl, and, in autumn, of flocks of starlings, which, when disturbed, rose in thick clouds. Here and there, on a patch of higher land, would be a hamlet clustering round the church, or the hall of the squire, whilst, when the day happened to be free from fog,² The towers and spires of Ely and Peterborough, Boston and Lynn, Whittlesey and Croyland caught the eye for miles. But besides these larger patches, where for a few acres there existed “winter lands,” the whole district was studded with islets, having only a few square yards above the flood-time water level, each with its little homestead among the willows and poplars, its tiny field behind the banks, and its pasturage on the “summerlands” of green grass flat, and of browner peat where the fen lay deeper; with here and there the darker velvet green of alders amid winding streams and shining meres, and rich sedge-grass so slightly uncovered by the summer droughts that, as noticed by a lady traveller in 1695, the “many swans’ nests on little hillocks of earth in the wet ground” looked “as if swimming” amid the broods of cygnets.³ This “vast morass,” as Camden calls it, where, to use the words of Dugdale, “there is no element good, the air being for the most part cloudy, gross and full of rotten harrs; the water putrid and muddy, yea, full of loathsome vermin; and the fire noisome by the stink of smoky hassocks,” afforded “overmuch harbour to a rude and almost barbarous sort of lazy and beggarly people.”¹.

On the other side of England, many miles of Somersetshire, in the broad flats through which the Parrott and the Axe wandered sluggishly to the sea, presented an almost similar aspect.In Kent and Sussex the well-known Romney Marsh, a hundred square miles of green flat, intersected by dykes of stagnant water, had been gradually abandoned by the sea, and “inned” by successive embankments of Roman or Saxon times. Here the marshmen of the seventeenth century, like those of the Middle Ages, found their very existence dependent on their watchful maintenance of the great wall, fourteen miles long, that protected their sheep and their homesteads from the winter storms. The whole estuary of the Thames, from the Mole to the Medway, from Millbank in Westminster to the Maplin Sands, had its broad marsh lands, habitable only by the maintenance of interminable stretches of river wall and the construction of innumerable dykes and sluices, many of them of unknown antiquity. In the interior of England nearly every county had its hundreds or its thousands of acres of “moss” or swamp, along the valley bottoms or on the boggy uplands. To render these acres serviceable involved the construction and maintenance of miles of “ditches, gutters, gates and sewers.”¹ Moreover, at many points along the low-lying coasts, there went on a perpetual struggle between “the power of man’s hand” and “the swallowing and devouring surges of the seas and waters.” The salt marsh, gradually uncovered by a receding sea, had to be protected against storms and exceptional tides. Elsewhere, fields and homesteads—even flourishing ports like Dunwich and Ravenspur—had to be defended, sometimes in vain, against the advancing ocean. The “great fresh rivers and streams” Callis tells us,² had also to have “their passages made clear and that their walls, banks and other defences be repaired, kept and maintained, whereby the fair, delightful, pleasant, and fruitful meadows and pasture grounds which lie in the greatest abundance upon or near the rivers, brooks and streams, may be preserved from the inundation of fresh waters, which many times annoy them.”

The bulk of this work of reclamation, from the time when most of England formed practically one continuous forest and swamp and moorland moss, down to the Enclosure Acts of the eighteenth and nineteenth centuries, was doubtless the result of individual enterprise, great or small. Here the great lord embanked from the floods the meadows at the foot of his castle; there the toiling cottager laboriously built up his plot of gardenground against the marsh. But when each man had raised his bank, or built the bit of river wall that protected his own land, he was often still liable to be flooded out by a high tide or a spring freshet, owing to the neglect of his neighbour to keep the bank in repair, or to the want of uniformity in their defences against the common enemy. A small breach at any one point might, any winter, flood not the land of the negligent owner alone but the whole of the neighbouring lowlands. Individual enterprise brought, moreover, its own additions to the perils of the waters in the multitude of “fishgarths, milldams, locks, hebbing wears, hecks, floodgates and other like annoyances,” which served as hindrances “to navigation, or stops whereby the abundant waters cannot have their free passage to the sea,”¹ to cope with these difficulties we see, first the primitive forms of communal cooperation for land drainage—as yet scarcely investigated and deserving further study—and then, as these were found lacking in authority, amid the growing centralisation of the judicial power, the establishment of Courts of Sewers, wielding the might of the King.

The Origin of the Court of Sewers

We know nothing of the collective regulation of the sewers and banks of British, Roman, Anglo-Saxon or Norman times. From the provision in Magna Carta² forbidding assessments to maintain embankments except where customary, we may infer the existence, and even the increase, of some local organisation of such services. In thirteenth-and fourteenth-century documents we get glimpses, as for instance in the marshes of Kent and Sussex, of an interesting form of local self-government, sometimes avowedly based on the agreement of those concerned, sometimes asserting a compulsory authority exercised “time out of mind.” Thus, in 1250, as we learn from a contemporary document, it could be asserted that it had, from time immemorial, been the custom in Romney Marsh for the Twenty-Four Jurats, chosen by the landowners of the marsh, to watch over the sea wall and watercourses, compelling each owner to maintain in repair a certain length of wall and of “watergangs.” These Jurats had a Bailiff, who summoned their meetings and enforced, by distraint on recalcitrant owners, the payment of damages assessed by the Juratas for any neglect of duty. There seem to have been also one or more collectors and an “Expenditor,” in case the owners preferred, in any particular work, to have the repairs executed as a collective service out of a primitive “acre rate.” But these ancient local distraints and assessments were sometimes resisted by powerful landowners. At Romney this resistance went so far that “the walls and watergangs lay waste and ruinated, by reason whereof the inundations of the sea and other waters overflow a great part thereof, to the great detriment of our Lord the King and the men of the same Marsh.” Whereupon the King gave a special charter to the Four and Twenty “Lawful Men,” forbidding the Sheriff of the County to interfere with their distraints. When this proved inefficacious, six years later, he sent down Sir Henry de Bathe, one of the principal judges, to determine the differences and record the customs of Romney Marsh. For the next two hundred years we read, in the pages of Dugdale, of a succession of visits of specially commissioned King’s Justices, to adjudicate, with the aid of a Jury of indifferent men, summoned by the Sheriff of the County, in disputes between the Twenty-Four Jurats of the Marsh on the one hand, attended by their Bailiff, Expenditor, collectors and the commonalty, and this or that powerful landowner having fields within the Marsh, who had defied their ordinances and assessments.¹ The same kind of local organisation for the protection and drainage of land was imitated in other marshes in Kent and Sussex, where previously there had been “no certain law of the said marsh ordained or used before that time, but at the will of those lords who had lands within the same”; and “wherein the Marsh Law” was henceforth to be “established and used.” ² Much the same organisation seems also to have existed in some other marshy districts, notably, as we shall describe, in Somersetshire, and along the banks of the Thames; and to have persisted, in spite of the imposition of a newer constitution, down to the nineteenth century, possibly even to the present day.

Meanwhile, in all the low-lying parts of England, the need for some organisation of the works of embanking and land drainage had led monarch after monarch, on the emergency of some flood or inroad of the sea, or because of the importunity of some particular suitor, to issue temporary Commissions, appointing Justices to survey and enquire, by Juries, into the needs of different districts; to discover what particular persons were liable, according to ancient custom, to execute repairs or to contribute to the common charges; and to settle the innumerable disputes that arose. We are not concerned to unravel, from the archives themselves or from the involved account given by Dugdale, all the complications and diversities of these casual judicial authorities— sometimes the King’s Assize Judges, listening to the presentments of the ordinary Hundred Juries, and trying indictments on traverse by the common Petty Juries; sometimes special “Justices of Sewers,” issuing precepts to the Sheriff to call “Juries of Sewers,” composed of indifferent persons, who found particular landowners liable for works of repair; sometimes, again, standing Sewers Juries, like the Twenty-Four sworn men of Romney Marsh; apparently permanent bodies of representatives of the local owners whose presentments to the King’s Justices, if traversed, were tried before a Jury of indifferent persons summoned by the Sheriff. These local organisations and customs, spasmodically interfered with and controlled by casual Justices depending only on the fiat of the King, with their uncertainties of law and diversities of procedure, were partly fortified and partly superseded by a series of Parliamentary enactments¹ culminating in the celebrated Statute of Sewers of 1532, which definitely established the authority of the King’s Commissions of Sewers, and of the Courts of Sewers held by them; and formulated “for all parts within this Realm,” a fixed constitution and procedure for what now became practically permanent local governing bodies.²

The Legal Framework of the Court of Sewers

Under the great Statute of Sewers of 1532, as slightly amended in subsequent years,¹ The body of persons to whom the King issued his Commission to govern the sewers of a particular district resembled in many respects the Justices of the Peace of the county.Like the Justices of the Peace, the Commissioners of Sewers had, unless they were barristers, to possess a qualification in freehold land,² though provision was made from the first for allowing Commissioners free of any corporate Borough to qualify merely by the possession of personalty. They had, like the Justices of the Peace, to take elaborate oaths, under a similar “dedimus potestatem.” Each Commission, too, specified some of them as being what was termed “of the quorum.”¹ They had allowed to them, like the Justices, their four shillings a day, with two shillings for their Clerk. More significant to the constitutional student is the fact that, like the Justices of the Peace, they combined in themselves, judicial, executive and even legislative powers,² all exercised under the forms of a Court of justice. On the other hand, the authority of the Commissioners of Sewers, unlike that of the Justices of the Peace, was limited alike in time and in extent. In both cases the Commission came automatically to an end on the demise of the Crown, and might be earlier terminated by writ of supersedeas. But each Commission of Sewers purported to be a strictly temporary one, enduring at first only for three years in each case, though this term was afterwards made ten years.³ And their jurisdiction was at all times confined to matters concerning land drainage and embankments, or, as the statute expresses it, to the “walls, streams, ditches, banks, gutters, sewers, gates, calcies, bridges, trenches, mills, mill-dams, floodgates, ponds, locks, hebbingwears, and other impediments, lets and annoyances … in the rivers, str...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Series Page
• Original Title Page
• Original Copyright Page
• Preface
• Table of Contents
• Introduction
• Chapter I The Court of Sewers
• Chapter II The Incorporated Guardians of the Poor
• Chapter III The Turnpike Trusts
• Chapter IV The Improvement Commissioners
• Chapter V A Century and a Half of English Local Government : The Old Principles
• Chapter VI The Emergence of the New Principles
• Index of Persons
• Index of Places
• Index of Subjects