CHAPTER XXII.



COMMON LANDS IN FRANCE.





In Gaul as well as in Italy, during the Roman period, not only the villages, but also the towns, seem to have possessed common lands. Plures ex municipi bus, qui diversa prcedia possidebant, saltum communem, ut jus compascendi haberent, mercati sunt. (Digest, VIII. 5, 20.)

Festus, speaking of the property of the villages (pagi, villae), defines the compascua:ager relictus ad pascendum communiter vicaneis.

Isidorus (Origines xv. 2) gives nearly the same definition: .Ager compascuus dictus, quia divisoribus agrorum relictus est ad pascendum communiter vicaneis.

According to Alciat, the village common lands were called Vicanalia, ex eo quod ad pagum aliquem, seu vicum, et illius habitatores, in universum pertinerent. Even under the empire, Agenus Urbicus, a commentator of Frontinus, speaking of these common lands, tells us that they were the object of endless usurpations on the part of the powerful: Relicta sunt et multa loca, quae veteranis data non sunt. Haec variis adpellationi bus per regiones nominantur: in Etruria COMMUNALIA nominantur; quibusdam provinciis PROINDIVISA. Haec ferè pascua data sunt depascenda sed in communi; quae multi per potentiam invaserunt.

The German invasions do not seem to have been fatal to the collective domain; for in Germany the greater part of the soil was still common property. But in France, as in England, the feudal nobility abused the power, which the habit of carrying arms gave them, to reduce the lands of the communes in the middle ages,and more especially in the parts of the country where the soil attained most value. Not only did the lords claim to have the eminent domain of the communal lands and especially of the forests, which originally belonged entirely to the villages; but they also invaded the arable land, and drove out the inhabitants to re-afforest them, and enlarge their chases. To this fact the traditions refer, that exist in many provinces as to the origin of the woods with which they are covered. According to Hévin (Questions féodales, p. 211), "William the Bastard, Duke of Normandy, destroyed twentysix parishes in this province, to make a forest of thirty leagues." The forest of Nantes, which stretched from Nantes to Clisson, to Machecoul and to Rincé, was likewise formed on the ruins of numerous villages, that the Duke of Retz might hunt as he went from one of his castles to the other! The Norman kings introduced the same custom in England. Ducange on this subject says:

"William the Bastard, according to the narrative of Walter Mappeus, an ancient Breton historian, took the land from God and men, and handed it over to wild beasts and to the chase, destroying thirty-six parishes and exterminating their population. According to Brompton, in the hunting domain1 called the New Forest, the same prince ordered several churches and villages to be burned, their inhabitants to be driven out, and the land stocked with wild beasts. Further on, speaking of William Rufus, he talks of `this new royal forest, called in English Ithene, for which his father, William the Bastard, had expelled the inhabitants, depopulated villages and pillaged churches, and turned an area of more than thirty miles into a forest and refuge for wild beasts'..."

The work of Championnière (Prop. des eaux cour.) should be referred to, for an account of how the villeins, who cultivated the soil, were despoiled of their property and their independence.

At the time when the customary law was systematized, almost all the villages were still in possession of common lands: nullus est ferè in Gallia pagus (Mornac, ad Dig. viii. 3) qui hujusmodi pascua commuma non habeat. In the South, all waste land was presumed to be the common property of the inhabitants: Terres herbidce et incultae, quae a nemine reperientur occupatae, praesumentur esse universitatis in cujus territorio sitae sunt." (Championnière, Prop. des eaux courantes, p. 344)

In the sixteenth century, especially, when the nobility adopted habits of luxury and extravagance, they strove to appropriate the common lands. "The principal commentators of the feudal law," says Dalloz (Jurisp. génér., "Commune," tit. VI. ch. 3), "Legrand, Pithou, Imbert, Salvaing, de Sainctyon, Duluc, Fréminville, and M. Henrion de Pansey, trace the deprivation of titles, the violence and the fraud made use of to despoil the communities of their property, as far back as the time of Francis I. Many means were employed with this object. The destruction of titles was easily effected by the lords, because the records were in the hands of their officers. The titles once destroyed, the lands, to which they referred, belonged to the lord in virtue of the rule omnia censentur moveri a domino territorii. Sometimes even the production of a regular title was of no avail: certain customs ordained that the tailles and other feudal charges were paid for the right of common pasturage; and as common pasturage could always be suppressed for the sake of agriculture, its suppression was effected and the communal land was united to the lord's domain." (M. Latruffe, Droits des Communes, vol. I. pp. 57, 79 and 90.)

Royal ordinances also prove the existence of these abuses. One of Henry III., in April, 1567, runs: "We forbid all persons, whatever their rank or condition, to take or appropriate waste lands, which are the commonage and pasture of their subjects." The ordinance of Blois, 1575, is still more explicit: ART. 284"We command our procureurs to lay information with all diligence and secrecy, against those persons who, of their own authority, have taken or made away with the letters, titles and other evidences of their subject vassals, in order to appropriate the common lands, which such vassals had previously enjoyed; or who, under pretext of agreements, have compelled such vassals to submit to the decision of such persons as seemed good to them; and we enjoin our procureurs to institute proceedings with all diligence, and to declare all such submissions, compromises, transactions or decisions so made to be henceforth of no effect." An ordinance of 1629, reproducing the same dispositions, shews that the abuse had not ceased.

Royalty, in its struggle with the nobility whose power it sought to diminish, finally took the part of the communes, which neither the sovereign, nor the parliament, which represented the aristocracy, had done in England.

The ordinances of Louis XIV. in 1659 and 1669 went so far as to take the strong measure of retroactive revocation. In the preamble of the declaration of June 22, 1659, we read: "The majority of communities and villages have been induced to sell and alienate to powerful persons, such as the lords of the districts, their land and their rights of user for very inadequate sums; and in many cases such price has never been paid although there is writing to the contrary, by reason of the violence of the purchasers, who have compelled the inhabitants, under false pretences, to sign or grant away that which was lawfully due to them." The communes were, therefore, reestablished in full possession of all the property, alienated within the past twenty years by any title whatsoever.

The ordinance of 1667 likewise annulled all alienations which had taken place since 1620; and authorised the communes to resume possession of their lands, on restoring the price, in many cases merely nominal, which they had received. The ordinance likewise abolished the right of "triage," in virtue of which the lords claimed one-third of the communal property. The preamble accused the judges and nobles of having profited by the weakness of the communes, to despoil them of their property. "To conceal these usurpations, they have made use of false debts and have abused the most regular forms of justice for the purpose."

The French Revolution, following the example of the kings, endeavoured, in the first instance, to restore to the communes the lands which the feudal nobility had usurped. It did not however understand that the collective ownership and autonomy of the commune is the only firm basis of democracy, and it wanted to cut up the communal domain into small private properties, 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,(1) annulled all partitions made in virtue of this right since the ordinance of 1669, reestablished the communes in all their lands, and the rights 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, garrigues, landes, pacages, pâtis, ajoncs, brayères, bais communs, hermes, 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 independence 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 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, 1793, 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 Restoration gave back to the communes what remained of their property; and since then alienations have not been very extensive.(2)

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 agricultural 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 in the time of the Gauls, the inhabitants often cultivate in common a wood, a marsh, or waste land. They always possess in individual ownership the territory devoted to the cultivation of cereals. This is divided into three regions of equal extent, containing 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 inhabitants generally possess parcels in each division, and they are bound by municipal rulers to follow this arrangement of crops. 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 ownership. The shepherd, who is a municipal official, has charge of this flock, and need not trouble himself with any boundaries; in the climate of Champagne the flock may thus during the year commencing after the harvest, uninterruptedly occupy the fallow for twelve months, the spring-grain portion for six months, and the autumn-grain portion for three months. Hence the right of common pasturage extends, on the average, over seven-twelfths of the whole territory."(3)

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 defended 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 free-allods emanate from him. This principle, set up in the code of Marilliac (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 (OEuvres 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 assured that kings are absolute lords, and have naturally full and free disposition of all property, whether held by ecclesiastics or laymen, to use it in everything as 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 "en défense," enclosure and private enjoyment are the exceptional 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 Burgundians (Lex Burg., t. 28) allowed every one, who owned no forest, to take in that of another fallen branches, bearing no fruit. The law of the Visigoths (Lex Visigoth. VII,. t. 3, l. 27) authorized travellers to rest their oxen and homes 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, ubique pascua habere et ligna caedere et aquarum ductus pro suis necessitatibus, ubicumque pervenirent, nemine contradicente, jaxta priscum morem semper deducere. All 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 seventeenth century wrote:" It seems that our custom of regarding as common, at certain seasons of the year, waste and uncultivated 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. II., 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 requisition, on payment of the `champart,' or a portion according 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 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 principle, that property exists for the general good and not for particular interests. Gleaning too is a right over the property of another, universally recognized.

Laurière, in his commentary (anno 1710) on Art. 15, L ii. t. II. of the Institutes of Loysel, writes these remarkable words: "By the general law of France, inheritances are only `en defense,' 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 (l. 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 carried."Art. 20. "Waste pastures are free between parish and parish, but the `grasses' pastures belong only to the commoners of the parish." "According to this rule," says Laurière, "in common pasture, there is a right of cominonage between the inhabitants of neighbouring villages who can bring their beasts `champayer et vainpaturer,' on each other's lands from parish to parish (de clocher 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, where beasts are put to fatten." As a rule the proprietor could not put all his land "en défense." 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 flef; and by this means hold it free, at all times of the year, and enjoy it freely to himself, his 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 izba, private property in the midst of the collective territory. Laurière 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 property 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 distribution, 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 overthrew 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, applying the principles of the civil law, have endeavoured to enclose it, and preserve for themselves the enjoyment of their inheritance throughout 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. Cherbuliez (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 majority of our villages the revolution is regarded as a lawful return 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 modern doctrines, nor of demagogues' promises, nor of the abuse of the press; it springs from memories and traditions which nothing can efface. 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 destroying, 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.







1. 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 fens, which have been granted, by him or his ancestors, gratuitously and in full 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 5, 1552, which alludes to it. Feudal lawyers 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 full 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; moreover, 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 consequence of the German conquest, all the lands composing the territory of the fief had been originally granted to the lords; and that all other property, especially 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, hubert and more recently Proudhon (Usuf., t. 6, no. 2844) and Latruffe (Droits des communes, 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 prove that the conquest did not suppress it. In the law of the Burgundians especially, communal lands are several times mentioned:Sylvarum, montium et pascuorum unicuique pro rate suppetit ease communionem. Lex Burg., add. I, tit. 1., c. 6.De sylvis quae indivisae forsitan residerunt, seu Gothus seu Romanus sibi eas assumpserit. 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 inhabitants 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 his successors, history and right command us to pronounce in favour of the former.

2. See Hist. des biens com. en France, by Armand Rivière.De la propriété communale en France, by Eugène Cauchy.Des biens com, en France, by Jules Le Berquier. Revue des Deux Mondes, 15 January, 1859.

3. Le Play, L'Organisation de la Famille, 1871, p. 23.