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of the commune is the only firm basis of democracy, and it
wanted to cut up the communal domain into small private pro-
perties, as it did with the lands of the church and the nobility.
The successive laws of April 13, 1791, April 28, 1792, and June
10, 1793, abolished the right of triage^, annulled all partitions

^ In his report to the Constituent Assembly, Merlin defined the triage, as
"the right of the lord to take for himself the third part of the woods or fons,
which have been granted, by him or his ancestors, gratuitously and in full



294 PRIMITIVE PROPERTY.

made in virtue of this right since the ordinance of 1G69, re-
established the communes in all their lands, and the risrhts of
user of which they had been despoiled by reason of the feudal
rules, and declared them in full ownership proprietors of all
waste lands, unless there was an authentic deed "proving that
such and such portions of their lands were acquired à titre
onéreux." (See Dalloz, Jurisp. génér., " Commune," § cit., ch. VI.)

The first article of the law of June 10, 1793, runs: — "All
communal lands generally known, throughout the Republic,
under the various names of common or waste lands, gastes, gar-
rigues, landes, pacages, 2>àtis, ajoncs, bruyères, bois communs
hernies, vacants, palus, marais, marécages, montagnes, and under
any denomination whatsoever, belong in their nature to the
general body of inhabitants or members of the communes, in
the territory of which such communal lands are situated."

The Convention especially aimed at strengthening the
unity of the state. It was instinctively opposed to the in-
dependence of the provinces and of the communes, which had
its roots in the ancient system. Accordingly it never sought
to preserve the communal patrimony ; but thought it more

ownership to the commune on his territory." It is not known how, or on what
basis, this right was established. Pithou mentions a judgment of December 3,
155'2, which alkxdes to it. Feudal lawjers justify it, on the ground that the
lords had not surrendered the entire right of enjoyment over lands, granted by
them gratuitously, and that in claiming the third part in fiUl ownership they
were merely taking a part in severalty instead of their right in the common
whole. — This argument ignored the principle of the irrevocability of gifts; more-
over, the collective domain had originally belonged to the communes, and not to
the lords. The majority of ancient jurists, it is true, maintained, that, in con-
sequence of the German conquest, all the lauds comjjosing the territory of the
fief had been originally granted to the lords ; and that all other property, especi-
ally the enjoyment of common lands, was derived from their liberality. It was
by means of this system that commons in England passed into the hands of the
aristocracy — Many modern jurists, Henrion, Merlin, Troplong and Dalloz held
the same view for France : and the courts of justice have generally adopted it in
their decisions. Some old jurists, such as Legrand, Salvaing, Imbert and more
recently Proudhou {Usiif., t. 6, no. 28i4) and Latruffe {Droits des comvmnes, t, i.
p. 9) maintained, on the contrary, that the communal property is as old as the
commune itself, because formerly it was indispensable to agriculture : and they
jjrove that the conquest did not suppress it. In the law of the Burguudians
especially, communal lands are several times mentioned:— ASyZyaruni, montium
et pascuoriim unicuique j^ro rata siippetit esse communionem. Lex Burg., add. i,
tit. 1, c. 6. — De sylvis quœ indivisce forsitan residerunt, sen Gothus sen Jîomaniis
sibi eas assiimpserit. Lex Burg., tit. 54, c. 1. — There can be no doubt in fact,
that "the forest, the pasturage and the field" belonged originally to the inhabit-
ants of the village, from whom the lords took them by successive encroachments.
In every case, therefore, where a suit arises between the commoners and the
lord or iiis successors, history and right command us to pronoimce in favour of
the former.



COMMON LANDS IN FRANCE. 295

advantageous to increase the number of small proprietors.
This was the idea which economists of the eighteenth century-
had rendered popular. At the present day, everywhere, except
in Switzerland, men are bent upon the destruction of the
collective property of the village. By the law of June 10, 1703,
the Convention decreed the division of communal lands among
all the inhabitants equally. Where the partition was effected,
the lands were sold at a low price, and the patrimony of all
was thus considerably reduced, — a deplorable and essentially
anti-democratic step. Towards the end of the empire, the
law of March 20, 1813, handed over communal lands to a
sinking fund. This purchased communal lands, chiefly the
most productive portions, for 58,000,000 francs. The Restora-
tion gave back to the communes what remained of their
property; and since then alienations have not been very ex-
tensive \

Communal lands still comprise about 4,000,000 hectares;
of which 1,500,000 hectares are forest, and 2,500,000 hectares
are waste land. The departments richest in common lands are
the Landes, the Hautes and Basses-Alpes, the Hautes and
Basses-Pyrénées, Gironde, Isère, Creuse, Bas-Rhin, and Moselle.
As to the mode of enjoyment, the " Conseils généraux " have
always decided, with reason, against sale and partition ; they
advised leases for terms sufficiently long to encourage agricul-
tural improvements. It is in fact the best system, after that
of the Swiss Allmend.

In some districts the system of primitive community has
left deep traces. M. le Play gives the following account of the
system of cultivation in force in Champagne : —

"As m the time of the Gauls, the inhabitants often cultivate m
common a wood, a marsh, or waste land. They always ])Ossesa in
individual ownership the ten-itory devoted to the cultivation of
cereals. This is divided into three regions of equal extent, con-
tammg nearly the same number of parcels. Each of these portions
receives in turn an autumn and a spring grain, and certain herbs
which spring up spontaneously when the soil lies fallow. The in-
habitants generally possess parcels in each division, and they are
bound by municipal rulers to follow this arrangement of crops.

1 See Hist, des Mens com. en France, by Armand Eivicre. — De la propriété
communale en France, by Eugène Caucliy. — Des biens com. en France, by Jules
Le Berquier. Revue des Deux Mondes, 15 January, 1859.



29G PEIMITIVE PROPERTY.

Under the system of common pasturage, a common flock of sheep
receives from each inhabitant a number of heads, determined by
the quantity of land which he possesses in individual o^vnership.
The shepherd, who is a municipal official, has charge of this flock, and
need not trouble himself with any boundaries; m the climate of
Champagne the flock may thus dimng the year commencing after the
harvest, uninterruptedly occupy the fallow for twelve months, the
spring-grain portion for six months, and the autumn-grain poi-tion
for three months. Hence the right of common pasturage extends^ on
the average, over seven-twelfths of the whole territory'."

A trace of the ancient principle of the collective ownership
of the soil was maintained in France up to the Revolution,
first in the idea that all lands belonged to the sovereign, and
secondly in the right of common pasture. Jurists, who de-
fended the prerogatives of royalty against the privileges of
feudalism, succeeded in establishing the principle that the
king had the direct universal domain of all the lands of the
kingdom. They maintained, that he is le souverain fieffeux
du royaume, making the grant of all feudal holdings, and even
the enjoyment of frçe-allods emanate from him. This principle,
set up in the code of Marillac (Art. 383) under Louis XIII.,
and also in an edict of Louis XIV., in 1692, was formulated
with the greatest precision in the instructions of this prince
to the Dauphin {Œuvres de Louis XIV., v. ii. 6, 93). " All
that exists within the extent of our State, of whatsoever nature
it is, belongs to us by the same title. You may be well as-
sured that kings are absolute lords, and have naturally full
and free disposition of all pi'operty, whether held by eccle-
siastics or laymen, to use it in everything a3 wise economists."
Louis XIV. is here expounding a principle generally admitted
by English jurists.

In France, as in Spain and all other countries, we may
assert that common pasturage was a general right, not merely
in the forest and on the communal waste, but even on private
lands after the harvest was gathered in. To escape this burden
the land had to be put " in defence," or " en garenne " {garenne
coming from the German wehr, like guerre and the English
war ; — wehren means to defend). We see here that collective
occupancy is the general primitive fact; while the putting

1 Le Play, V Organisation de la Famille, 1871, p. 23.



COMMON LANDS IN FRANCE. 207

"en défense" enclosure and private enjoyment are the excep-
tional and relatively recent fact.

Traces of the ancient collective occupancy of the common
domain are also to be found in certain dispositions of Germanic
laws reproduced in the customs. Thus the law of the Bur-
gundians {Lex Burg., t. 28) allowed every one, who owned no
forest, to take in that of another fallen brandies, bearing no
fruit. The law of the Visigoths {Lex Visigoth. Viii. t. 3, 1. 27)
authorized travellers to rest their oxen and horses in unenclosed
pastures, and to abide there a day or two, and also to gather
the forest boughs for the support of their beasts. The
authorization granted by Charles the Bald to the Spaniards
is also curious : Liceat eis secundum antiquam consuetudinem,
uhique pascua habere et ligna cœdere et aquarum ductus pro
suis necessitatibus, ubicumque pervenirent, nemine contradicente,
juxta priscum morem semper deducere. Ail ancient writers,
says Championnière {Propr. des Eaux cour. p. 337), lay down
this principle : potest quis facere in alieno fundo quod ei prodest
et domino fundi non nocet. — Basnage at the end of the seven-
teenth century wrote : — " It seems that our custom of regarding
as common, at certain seasons of the year, waste and unculti-
vated lands, is contrary to the common law inasmuch as it
deprives proprietors of the free disposition of their inheritance,
but public interest has prevailed over individual liberty."
{Sur l'art. 82 de la coutume de Normandie.) In the " Custom
of Nivernais," Chap. XI., art. 1, we meet with a remarkable
custom which seems to have been very general in the middle
ages. "Every one may cultivate the lands or vineyards of
another, if not cultivated by the proprietor, without any re-
quisition, on payment of the ' champart,' or a portion accord-
ing to the custom of the place, where the property is situated,
until such time as he be forbidden by the proprietor." A
commentator, after remarking that the rule was introduced
for the public good, and in consequence of the negligence or
incapacity of proprietors, adds this detail : " that any one who
has grown 'large grain,' and manured the soil, may grow
' small grain ' (that is spring crops, such as oats, &c.) the
following year on the same land, which they call suivre les
fretis. The cultivator, in this case, will not be prevented



298 PRIMITIVE PROPERTY,

the next year from growing 'small grain,' for the whole is,
as it were, one agricultural operation spreading over the two
years." This is a curious application of the fundamental prin-
ciple, that property exists for the general good and not for
particular interests. Gleaning too is a right over the property
of another, universally recognized.

Lauriere, in his commentary (anno 1710) on Art. 15, 1, II.
t. II. of the Institutes of Loysel, writes these remarkable words :
"By the general law of France, inheritances are only 'en
défense' and 'en garde,' so long as the crops are standing,
and as soon as they are gathered in, the land, by a kind
of jus gentium, becomes common to all men, rich and poor
alike. This right of common pasture is inalienable and
imprescriptible, like the right of gleaning, of grapter, and
drawing water from public rivers, which consist only in a
faculty or natural liberty, and are not lost by non-user." (Edit.
Dupin, v. I. 6, 251). Here are two other rules of Loysel (1. ii.
t. II. Art. 17): "Underwood is not to be cut for four years
and a month, after which time every one is at liberty to cut
it." — Art. 16. "Vineyards, gardens, and warrens are always
enclosable." Davot says : " All land sown with grain is legally
enclosable."— Art. 18. "Meadows are enclosable from the
middle of March until All Saints' Day, or till the hay is
declared to be all made and earned." — Art. 20. "Waste pas-
tures are free between parish and parish, but the 'grasses'
pastures belong only to the commoners of the parish." "Ac-
cording to this rule," says Lauriere, " in common pasture, there
is a right of commonage between the inhabitants of neighbour-
ing villages who can bring their beasts ' champayer et vain-
^iaturer,' on each other's lands from parish to parish [de clocher
à clocher)." We see here a trace of the right exercised over
the whole mark, before it was divided into parishes. " The
' grasses ' pastures are the meadows not mown, the fields and
woods in the acorn time, v/here beasts are put to fatten." As
a rule the proprietor could not put all his land " en defense."
He might only exercise this right over a small portion of his
inheritance. Thus the custom of the Boulonais, Art. 131,
says: "Every one may lawfully enclose the fifth part of his
fief; and by this means hold it free, at all times of the year,



COMMON LANDS IN FRANCE. 299

and enjoy it freely to liimself, liis tenants or lessees. Every
one may also lawfully enclose an area not exceeding one mesure
or five quarterons of land whether arable or not, bordering the
road or path, and by reason of the said enclosure hold it free
throughout the year, provided that he makes the said enclosure
to be cultivated, that he plants it and builds thereon a good
dwelling-house." This is obviously the terra salica, the enclosure
of the Russian izha, private property in the midst of the col-
lective territory. Laurierc gives the reason of this rule : " If
all who owned lands were pleased to stop and enclose them,
and to put them thus 'en défense,' the result would be that
there would be no more common pasture, and the beasts of
those who had no land would perish, which would be against
the common advantage, and pernicious to the State." We see
here a curious application of a principle, formerly universally
admitted, that the general interest prevails over private pro-
perty and sets limits to it. The earlier existing and superior
right of the community can alone justify such a limitation of
individual right.

In obedience to the inspirations of economists, whose only
aim was to increase the production of wealth, without any
consideration for the still more important point of its distribu-
tion, the French Revolution abolished common pasture by the
law of September 28, 1791, which says (Sect, iv.. Art. 4): "The
right of enclosing, or destroying the enclosures of, inheritances,
is a necessary result of the right of property, and cannot be
denied to any proprietor." This was not merely depriving the
rural population of a hereditary right, but was also striking a
fatal blow against the very basis of civil order, by ignoring the
superior right of the community, and by sacrificing collective
to individual interest. In Spain, the same reform, accomplished
more recently, excited violent resentment in the peasants,
which found vent in the recent civil war. They overtlirew
the enclosures, as the inhabitants of the rural districts did in
England in the sixteenth century. In the majority of Spanish
provinces the land became public domain after the harvest, and
during all the time that it lay fallow. The proprietors, apply-
ing the principles of the civil law, have endeavoured to enclose
it, and preserve for themselves the enjoyment of their in-



800 PRIMITIVE PROPERTY.

heri tance tliroughout the whole of the year. The peasants
endeavour to put once more in force the old collective right.
In a speech, delivered May 10, 1873, and quoted by M. Cher-
buliez {Revue des Deux-Mondes, 15 November, 1873), M. Silvela
said to the Cortes :

*' This idea of socialism is with us an inheritance of the ancient
system, which gave it its letters of naturalization. In the ma-
jority of our villages the revolution is regarded as a lawful retuin
to communistic habits, which have abided in our blood. It signifies
free access to municipal property, and, at times, to private property,
the destruction of enclosures, and common occupation of the fallow
and of the rest after harvest. This interpretation of liberty is not
the child of modem docti-ines, nor of demagogues' promises, nor of
the abuse of the press ; it springs from memories and traditions which
nothing can eflaoe. So it is less widely spread in the great towns
than in the country districts and hidden corners of our territory."

This example shews in a striking manner how, by destroy-
ing, instead of improving the practical application of the
collective right to which the ancient system had still secured
an important place, jurists and modern economists have, with
their own hands, cast into the upturned soil of our societies
the seeds of violent and revolutionary socialism.



CHAPTER XXIII.

COMMON LANDS IN BELGIUM.

In the west of Belgium, where industry and commerce have
from the middle ages created populous cities, agriculture ad-
vanced rapidly and common lands disappeared ; but in the
sandy district of the Campine and beyond the Meuse, in the
Ardennes region, the want of communication and the absence
of large towns tended to preserve the ancient form of property
and cultivation. In 1846, the common lands still comprised
162,896 hectares, of which 80,055 were in the Campine
district, and 80,864 in Ardennes district. Formerly under
the Spanish rule, the government promoted clearings by
the grant of waste lands (1572 — 1586). The ordinance of
Maria Theresa, of June 23, 1772, declared that the waste
lands of communes and corporations were at once to be
sold. It had however scarcely any effect. The law of March
25, 1847, which is still in force, authorizes the government to
sell communal lands not under cultivation, whenever grants of
them are demanded by individuals. This law caused the sale
of 33,000 hectares between 1847 and 1860; and since then
these alienations have been continuing. At the present time
there only remains about 100,000 hectares of common land. In
a great many charters lands are mentioned as belonging to the
inhabitants of a village in common^ ; but except in the Arden-
nes, the lord had succeeded in usurping the eminent domain,
without however destroying the inhabitants' right of user. This
right, maintained to the present day, has given rise to long

1 This point has attracted little attention from historians ; bnt it has been
well demonstrated in the learned work recently published by M. Leon Vauder-
kiudere: Notice, sur Vorigine des magistrats communaux, 1874. Many facts liere
given are borrowed from him.



302 PRIMITIVE PROPERTY.

and intricate suits. In the documents these common lands are
called in Latin pascua communia, communio, warescalli; in
Walloon, warescliart ; in Flemish, hemede, opstal, warande,
which corresponds to the German word warschaft, the right of
sharing in the mark, as indicated by Maurer {Markverfassung,
p. 15). The community itself was called communitas ; in
Flemish, meentucht; and the co-partners, commarcani, genossen,
ganerhen. By the side of the owners of houses, mansionarii,
massuiers, there were the cotarii, cossati (in Flemish, koter,
cossaeter), who lived in a cabin, kot, built on another man's
ground, and had no regular share in the enjoyment of the
communal property.

The towns themselves preserved their communal lands for
a very long time. We will quote some examples from M.
Vanderkindere : —

"Antwerp has its hemede, 1186, 'Pascua et terrse ad com-

munem justitiam pertinentes quae vulgo hemethe vocantur'

(Mert. and Torfs, Gesch. v. Antwerpen, i. 81 ; Wauters, Preuves,
p. 48), and also its Opstalle (Brab. Yeesten, Codex, i. p. 677 ;
Keure d'Anvers of February 21, 1291).

" At Louvain, an enquiry was made, in 1323, with regard
to the commonable meadows, ^jr^eweene veeweyde {Br-ab. Yeesten,
Codex, I. p. 764. See also Chron. de J. de Klerk, i. 641, in
1234, and for the Opstalle, Brab. Yeesten, i. p. 730, Keure of
September 17, 1306).

"At Ypres an Upstal is mentioned in 1111 (Gheldof V.
p. 320).

"At Ghent, the Keure of 1192 forbids private individuals
disposing of lands toti oppido communia, and building upon
them (Gheld. iii. p. 226, § 17 ; cf. Gheld. it. p. 26).

"At Malines, in 1264, Walter Berthout grants to the in-
habitants land, ' usu communi absque clausura hereditario jure
perpétue possidendam' (Wauters, Preuves, p. 212).

"There is also the case of Soignies, in 1142 (Wauters,
Preuves,^. 19) ; of Montigny-sur-Sambre, in 1253 {Ibid. p. 182} ;
of St Trend, in 1324 {Cart de St Trond, i. p. 462), etc'

^ At Soignies, the mayor with the assembled jury of suiTeyors {verejurati)
allotted to every cue his share in the lands of the commune of St Vincent : — the
cachepoul carries the rope, the Germanic reeb, used for the measurement.



COMMON LANDS IN BELGIUM. 303

"We must guard against the idea that these communal
lands were only the remnant of a primitive state of things, to
which hardly any importance was attached. The Keure de
Orammont, 1068 (Warnkonig II. 2", 163), will shew the contrary.
This town, as we know, was founded by Baldwin VI. on an
allod, which had belonged to a certain Gerard ; but this land
being insufficient, the Count granted the town as a fief to the
lord of Boulaere, and he, in exchange, provided the new city
with the pasturage that it required : ' In recompensationem
feudi praenominati, Balduino comitis ad usus Geraldimonten-
sium Buzemont, sicut ipse possedit, et Cortelake et pasturam

(all the pastures are here enumerated) addidit insuper

quod quibuscumque aquis et pascuis homines sui uterentur,
liceret Geraldimonteusibus uti communiter.'

"Similarly, at Douay, in 1241 (Warnk. IL 2", p. 261), the
Count of Flanders recognized the right of the burgesses to the
pasture and marsh land surrounding the town ; they are entitled
to take whatever is necessary for their personal use, without
any charge : ' car Us n estaient tenus anchiennement en nulle cose
pour chou.' The Count, moreover, engages not to give any one
any part whatsoever of those pastures, over which the inhabit-
ants of Douay have an absolute right, nor to allow their
enclosure."

In a Soignies document, of the date 1248 A. D,, we learn
that, in case of a transfer of property, the land was surrendered
into the hands of the mayor, who alone could invest the new
occupant. " All the lands of the commune must be conveyed
into his hands for him * desireter et aireter^.' "

At Louvain the adherance and desheritance of allodial lands
was effected by the mayor in presence of the sddermcn, tanquam
allodii consortes, assisted by two of the fellow allodial pro-
prietors, with symbolical ceremonies, cum cespite et ramo. The
alienor began by consigning (supportare) the property into
the hands of the mayor ; then the two allodial " peers " pro-
nounced the adjudication to the new purchaser, to whom the
mayor surrendered the property " by branch and clod'^" This

1 "Wauters : Preuves, p. 172.

2 See La propriété foncière au XV' Siècle dam le quartier de Louvain, par
E. PouUet, 1866.



s 04 PRIMITIVE PROPERTY.

is evidently a relic of the primitive period, when the chief of
the commune presided over the partition and distributed to
each member his share in the communal domain. The co-
occupants are often called " parcheniers," or " j)^'^^'^^'''^'^^^'^'^ ^^
having a 2'>cLi't or share in the lands of the commune. In the
coal district we find collective property applied to coal-mines S
of which the " parceniers " have the use.

We have no ancient documents to shew how private owner-
ship of land was developed in Belgium, but the appearance of
certain villages gives us some insight into the subject. The
houses are arranged in a line along the road. Behind each
house stretches a long strip of ground, which is nothing but



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