In some districts the system of primitive community has left deep traces. M. le Play gives the following account of thesystem 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 possessin 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, andcertain herbs which spring up spontaneously when the soil lies fallow. The inhabitants generally possess parcels in eachdivision, and they are bound by municipal rulers to follow this arrangement of crops. Under the system of commonpasturage, a common flock of sheep receives from each inhabitant a number of heads, determined by the quantity of landwhich he possesses in individual ownership. The shepherd, who is a municipal official, has charge of this flock, and need nottrouble himself with any boundaries; in the climate of Champagne the flock may thus during the year commencing after theharvest, uninterruptedly occupy the fallow for twelve months, the spring-grain portion for six months, and the autumn-grainportion for three months. Hence the right of common pasturage extends, on the average, over seven-twelfths of the wholeterritory." (3)
A trace of the ancient principle of the collective ownership of the soil was maintained in France up to the Revolution, first inthe idea that all lands belonged to the sovereign, and secondly in the right of common pasture. Jurists, who defended theprerogatives of royalty against the privileges of feudalism, succeeded in establishing the principle that the king had the directuniversal domain of all the lands of the kingdom. They maintained, that he is le souverain fieffeux du royaume , ****** thegrant of all feudal holdings, and even the enjoyment of free-allods emanate from him. This principle, set up in the code ofMarilliac (Art. 383) under Louis XIII., and also in an edict of Louis XIV., in 1692, was formulated with the greatestprecision in the instructions of this prince to the Dauphin ( OEuvres de Louis XIV ., v. ii. 6, 93). "All that exists within theextent of our State, of whatsoever nature it is, belongs to us by the same title. You may be well assured that kings areabsolute lords, and have naturally full and free disposition of all property, whether held by ecclesiastics or laymen, to use itin 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 theforest and on the communal waste, but even on private lands after the harvest was gathered in. To escape this burden theland 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 " endéfense ," 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 Germaniclaws reproduced in the customs. Thus the law of the Burgundians ( Lex Burg ., t. 28) allowed every one, who owned noforest, 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 gatherthe forest boughs for the support of their beasts. The authorization granted by Charles the Bald to the Spaniards is alsocurious: Liceat eis secundum antiquam consuetudinem, ubique pascua habere et ligna caedere et aquarum ductus pro suisnecessitatibus, 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 eiprodest et domino fundi non nocet .Basnage at the end of the seventeenth century wrote:" It seems that our custom ofregarding as common, at certain seasons of the year, waste and uncultivated lands, is contrary to the common law inasmuchas 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 remarkablecustom which seems to have been very general in the middle ages. "Every one may cultivate the lands or vineyards ofanother, if not cultivated by the proprietor, without any requisition, on payment of the ` champart ,' or a portion according tothe custom of the place, where the property is situated, until such time as he be forbidden by the proprietor." Acommentator, after remarking that the rule was introduced for the public good, and in consequence of the negligence orincapacity of proprietors, adds this detail: "that any one who has grown `large grain,' and manured the soil, may grow `smallgrain' (that is spring crops, such as oats, &c.) the following year on the same land, which they call suivre les fretis . Thecultivator, in this case, will not be prevented the next year from growing `small grain,' for the whole is, as it were, oneagricultural operation spreading over the two years." This is a curious application of the fundamental principle, that propertyexists for the general good and not for particular interests. Gleaning too is a right over the property of another, universallyrecognized.
Laurière, in his commentary (anno 1710) on Art. 15, L ii. t. II. of the Institutes of Loysel, writes these remarkable words:
