1. In his report to the Constituent Assembly, Merlin defined the triage, as "the right of the lord to take for himself the thirdpart of the woods or fens, which have been granted, by him or his ancestors, gratuitously and in full ownership to thecommune on his territory." It is not known how, or on what basis, this right was established. Pithou mentions a judgment ofDecember 5, 1552, which alludes to it. Feudal lawyers justify it, on the ground that the lords had not surrendered the entireright of enjoyment over lands, granted by them gratuitously, and that in claiming the third part in full ownership they weremerely taking a part in severalty instead of their right in the common whole.This argument ignored the principle of theirrevocability of gifts; moreover, the collective domain had originally belonged to the communes, and not to the lords. Themajority of ancient jurists, it is true, maintained, that, in consequence of the German conquest, all the lands composing theterritory of the fief had been originally granted to the lords; and that all other property, especially the enjoyment of commonlands, was derived from their liberality. It was by means of this system that commons in England passed into the hands of thearistocracy-Many modern jurists, Henrion, Merlin, Troplong and Dalloz held the same view for France: and the courts ofjustice have generally adopted it in their decisions. Some old jurists, such as Legrand, Salvaing, hubert and more recentlyProudhon ( Usuf ., t. 6, no. 2844) and Latruffe ( Droits des communes , t. I. p. 9) maintained, on the contrary, that thecommunal property is as old as the commune itself, because formerly it was indispensable to agriculture: and they prove thatthe conquest did not suppress it. In the law of the Burgundians especially, communal lands are several timesmentioned: 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 thevillage, from whom the lords took them by successive encroachments. In every case, therefore, where a suit arises betweenthe 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. Desbiens 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.
CHAPTER XXIII.
COMMON LANDS IN BELGIUM.
In the west of Belgium, where industry and commerce have from the middle ages created populous cities, agricultureadvanced rapidly and common lands disappeared; but in the sandy district of the Campine and beyond the Meuse, in theArdennes region, the want of communication and the absence of large towns tended to preserve the ancient form of propertyand 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 wastelands (15721586). The ordinance of Maria Theresa, of June 23, 1772, declared that the waste lands of communes andcorporations 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 byindividuals. This law caused the sale of 33,000 hectares between 1847 and 1860; and since then these alienations have beencontinuing. At the present time there only remains about 100,000 hectares of common land. In a great many charters landsare mentioned as belonging to the inhabitants of a village in common; (1) but except in the Ardennes, the lord had succeededin usurping the eminent domain, without however destroying the inhabitants' right of user. This right, maintained to thepresent day, has given rise to long and intricate suits. In the documents these common lands are called in Latin pascuacommunia, communia, warescalli ; in Walloon, wareschart ; in Flemish, hemede , opstal , warande , which corresponds to theGerman word warsehaft , the right of sharing in the mark , as indicated by Maurer ( Markverfassung , p. 15). The communityitself was called communitas ; in Flemish, meentucht ; and the co-partners, commarcani , genossen , ganerben . By the side ofthe owners of houses, mansionarii , massuiers , there were the cotarii , cossati (in Flemish, koter , cossaeter ), who lived in acabin, 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 terrae ad communem justitiam pertinentes qiun vulgo hemethe vocantur' (Mert.
and Torfa, Gesch. v. Antwerpen , I. 31; 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, ghemeene veeweyde ( Brab. Yeesten,Codex , I. p. 764. See also Chron. de J. de Kierk, I. 641, in 1234, and for the Opstalle, Brab. Yeesten , I. p. 730, Keure ofSeptember 17, 1806).
"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. m. p. 226, ?17; cf. Gheld. IL p. 26).
"At Malines, in 1264, Walter Berthout grants to the inhabitants land, `usu communi absque clausura bereditario jureperpetuo possidendam' (Wauters, Preuves , p. 212).
