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It was in the year A.D. 411 that the Roman legions were withdrawn from Britain, and it was not until 1555, or 1144 years after their departure, that the first general Act was passed, not for the construction, but for the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 {29}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 {30}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.

This principle of compulsory labour on the roads was—subject to various modifications in regard to alternative {31}assessments—to remain in operation until the passing of the General Highway Act of 1835, when it was wholly superseded by highway rates. The labour itself, though it brought about an improvement on the previous road conditions, was from the first far from satisfactory, judging from the references made to it by Holinshed. The roads, he says, were very deep and troublesome in winter; the obligation in regard to six days' labour on them was of little avail, since the rich evaded their duty, and the poor loitered so much that scarcely two days' work was done out of the six; while the surveyors, instead of applying the labour to the amendment of roads from market town to market town, bestowed it on particular spots the repair of which conduced to their own convenience. Nor, it seems, was the power conferred on the justices to punish surveyors and parishioners if they failed in their duty of much practical avail.

No further general legislation concerning roads was passed until the Restoration, when, says Macpherson, "The vast increase of commerce and manufactures and of the capital city of London, with the concomitant increase of luxury, brought in such numbers of heavy-wheel carriages as rendered it by degrees impracticable, in most cases, for parishes entirely to keep their own part of the roads in a tolerable condition, more especially in the counties lying near London and in the manufacturing counties."

Petitions had been received from the inhabitants of various districts throughout the country praying that steps should be taken for the betterment of their roads, with the view of facilitating intercommunication, and it became evident that some more effective system for the construction and repairing of roads must be adopted.

In 1662 Parliament passed an Act (14 Car. II., c. 6) which stated that, inasmuch as former laws and statutes for mending and repairing public highways had been found ineffectual, by reason whereof, and the extraordinary burdens carried on waggons and other carriages, divers highways had become dangerous and almost impassable, churchwardens and constables or tithing men in every parish were directed to choose surveyors yearly on the Monday or Tuesday in Easter week, giving public notice thereof in church immediately after the end of the morning prayer. These surveyors {32}were to view the highways, estimate the cost of the necessary repairs, and, with the help of two or more substantial householders, apportion the cost among persons assessed to the poor rate and owners of all classes of property exclusive of "household stuff," the stock of goods in a shop being assessed as well as the shop itself, and the personal belongings of a householder equally with the dwelling he occupied.

There was further brought about, in 1663, the definite establishment, by law, of that system of toll-taking, by means of turnpikes, the principle of which had, as we have seen, already been adopted in a few isolated instances. Macpherson speaks of the system as "the more equitable and effectual method of tolls, paying at the toll-gates (called turnpikes) by those who use and wear the roads"; and this was the view that generally prevailed at the time. He records as follows, under date 1663, the passing of this first English Turnpike Act:—

"The antient fund for keeping the roads of England repaired was a rate levied on the land holders in proportion to their rents, together with the actual service of the men, the carts, and horses of the neighbourhood for a limited number of days. But now, by the increase of inland trade, heavy carriages and packhorses were so exceedingly multiplied that those means of repairing the roads were found totally inadequate; neither was it just that a neighbourhood should be burdened with the support of roads for the service of a distant quarter of the Kingdom. It was therefore necessary to devise more effective and, at the same time, more equitable means of supporting the public roads, and the present method of making and repairing the roads at the expense of those who actually wear them and reap the benefit of them was now first established by an Act of Parliament (15 Car. II., c. 1.) for repairing the highways in the shires of Hartford, Cambridge and Huntingdon, by which three toll-gates (or turn-pikes) were set up at Wadesmill, Caxton and Stilton."

The highways here in question formed part of the Great North Road to York and Scotland, and the preamble of the Act stated that this "ancient highway and post-road" was, in many places, "by reason of the great and many loads which are weekly drawn in the waggons through the said places, as well as by reason of the great trade of barley and {33}malt that cometh to Ware, and so is conveyed by water to the city of London ... very ruinous, and become almost impassable, insomuch that it is become very dangerous to all his Majesty's liege people that pass that way." The Act required the justices in each of the three counties to appoint surveyors who were to provide road materials and require of persons chargeable under the general law that they should send waggons and supply labour in accordance with their obligations, any extra work done by them being paid for at the usual rates in force in the district. The surveyors were, also, to appoint collectors of tolls who were empowered to levy, at the toll-gates (one of these being in each of the three counties) "for every horse, one penny; for every coach, sixpence; for every waggon, one shilling; for every cart, eightpence; for every score of sheep or lambs, one half-penny, and so on in proportion for greater numbers; for every score of oxen or neat cattle, five pence; for every score of hogs, twopence"; but no person, having once paid toll, and returning the same day with the same horse or vehicle, or with cattle, was to pay a second time. The Act was to remain in operation for eleven years; though it was, of course, then renewed.

How the turnpike system, thus introduced, was subsequently developed throughout the land will be shown later.

Charles II., whether he personally influenced the Act of 1663 or not, showed in a very practical way his interest in the opening up of the country to improved communications. In 1675 a remarkable work was published by John Ogilby, Cosmographer Royal, under the title of "Britannia; A Geographical and Historical Description of the Roads of England and Wales." The book consisted of 100 double-page sheets of road maps, giving, in scroll fashion, every mile of route for eighty-five roads or itineraries, and showing distances in each case, together with a description of each route, written in considerable detail. The maps, without the letterpress, were published in the same year in a separate volume, under the title of "Itinerarium Angli?"; and in 1699 the descriptive matter, without the maps, was reprinted in the form of a handbook, under the title of "The Traveller's Guide."

In his dedication of "Britannia" to King Charles II. the author says: "Influenced by Your Majesty's Approbation {34}and Munificence, I have attempted to Improve our Commerce and Correspondency at Home by Registering and Illustrating Your Majesty's High-Ways, Directly and Transversly, as from Shore to Shore, so to the Prescribed Limits of the Circumambient Ocean, from this Great Emporium and Prime Center of the Kingdom, Your Royal Metropolis."

"The Traveller's Guide" is described as "A most exact Description of the Roads of England, being Mr Ogilby's Actual Survey and Mensuration by the Wheel of the Great Roads from London to all the considerable Cities and Towns in England and Wales, together with the Cross Roads from one City or Eminent Town to another"; while in the preface the author throws more light on the previous reference to his Majesty's munificence, saying:—

"This Description of England was undertaken by the Express Command of King Charles II., and it was at his Expence that Mr Ogilby with great exactness performed an Actual Survey and Mensuration by the Wheel of all the Principal Roads of England."