Читать книгу A Brief History of Forestry - B. E. Fernow - Страница 13

The German tribes who remained conquerors were composed of the different groups of Franks, Saxons, Thuringians, Bajuvarians, Burgundians, etc., each composed of families aggregated into communal hordes with an elected Duke (dux, Herzog, Graf, Fürst), organized for war, each in itself a socialistic and economic organization known as Mark, owning a territory in common, the members or Markgenossen forming a republic. Outside of house, yard and garden, there was no private property; the land surrounding the settlement, known as Allmende, (commons) was owned in common, but assigned in parcels to each family for field use, the assignment first changing from year to year, then becoming fixed. The outlying woods, known as the Marca or Grenzwald, forming debatable ground with the neighboring tribes, were used in common for hunting, pasturing, fattening of hogs by the oak mast, and for other such purposes, rather than for the wood of which little was needed. In return for the assignment of the fields, the free men, who alone were fully recognized citizens of the community, had to fulfil the duties of citizens and especially of war service.

Only gradually, by partition, immigration and uneven numerical development, was the original Mark or differentiation into family associations destroyed and a more heterogeneous association of neighbors substituted. At the same time, inequality of ownership arose especially from the fact that those who owned a larger number of slaves (the conquered race) had the advantage in being able to clear and cultivate more readily new and rough forest ground. Those without slaves would seek assistance from those more favored, exchanging for rent or service their rights to the use of land; out of this relationship a certain vassalage and inequality of political rights developed.

Under the influence of Roman doctrine, a new aspect regarding newly conquered territory gained recognition, by which the Dukes as representatives of the community laid claim to all unseated or unappropriated land; they then distributed to their followers or donated to the newly established church portions of this land, so that by the year 900 A.D., a complete change in property relations had been effected. By that time the large baronial estates of private owners had come into existence which were of such great significance in the economic history of the Middle Ages, changing considerably the status of the free men, and changing the free mark societies into communities under the dominion of the barons.

The first real king, who did not, however, assume the title, was Clovis, a Duke of the Franks, who had occupied the lower Rhine country. About 500 A.D., picking a quarrel with his neighbors, the Allemanni, he subdued them and aggrandized himself by taking their Mark. In this way he laid the foundation for a kingdom which he extended by conquest mainly to the westward, but also by strategy to the eastward, the warlike tribes of Saxons and other Germans conceding in a manner the leadership of the Franks.

A real kingdom, however, did not arise until Charlemagne, in 772, became the ruler, extending his government far to the East.

At times, the kingdom was divided into the western Neustria, and the eastern Austria, and then again united, but it was only when the dynasty of Charlemagne became extinct with the death of Louis the Child (911), that the final separation from France was effected, and Germany became a separate kingdom, the eastern tribes between the Rhine and Elbe choosing their own king, Conrad, Duke of Franconia. There were then five tribes or nations, each under its own Duke and its own laws, comprising this new kingdom, namely the Franks, Suabians, Bavarians, Saxons on the right, and the Lorainers on the left bank of the Rhine, while the country East of the Elbe river was mostly occupied by Slovenians.

With Clovis began the new order of things which was signalized by the aggrandizement of kings, dukes and barons.

In addition to the rule regarding the ownership of unseated lands there developed, also under Roman law doctrine, the conception of seignorial right, i.e., the power of the king to jurisdiction over his property. This right, first claimed by the duke or king for himself, is then transferred with the territory given to his friends and vassals, who thereby secure for themselves his powers and jurisdiction, immunity from taxes and from other duties, as well as the right to exact taxes and services from others, the favored growing into independent knights and barons.

The forest, then, originally was communal property and the feeling of this ownership in common remains even to the present day. Indeed, actually it remained in most cases so until the 13th century, although the changes noted had their origin in the 7th century when the kings began to assert their rights of princely superiority.

In these earlier ages, the main use of the forests was for the hunt, the mast and the pasture, and since wood was relatively plentiful, forest destruction was the rule. Those who became possessed of larger properties through the causes mentioned tried to secure an increased value of their possessions by colonization, in which especially the slaves or serfs were utilized. These often became freedmen, paying rent in product or labor, and acquiring the rights of usufruct in the property, out of which developed the so-called servitudes or rights of user, the praedium of the Romans, a limited right to use the property of another.

With the development of private property there naturally also developed the right of preventing the hunting on such lands, this being then their main use. This exclusive right to the chase or hunt we find recognized as a part of the property of the kings and barons in the 8th century, when the kings forbade trespass under penalty of severe fines; the king’s ban (interdiction) of 60 shillings being imposed upon the trespassers. Indeed, by the end of the 8th century the word Forst (voorst—foresta) which until then had been used merely to denote the king’s property was exclusively used to designate not necessarily woodland (the latter being referred to as silva or nemus), but any territory in which the hunt had been reserved.

This right to reserve the chase and the fishing, that is, to establish banforests was in the 10th century extended by the kings to territory not belonging to them, the right to the chase being according to the Roman doctrine a regal right over any property. Under this conception fields and pastures, woods and waters, and whole villages with their inhabitants became “inforested” grounds. The Norman kings, imbued with a passion for the chase, exercised this right widely, especially in England; the forests of Dean, Epping and the New Forest being such inforested territories, the inhabitants of which were placed under special “forest laws,” and adjudged by special “forest courts.”

Presently the king’s right of ban was granted with the land grants to his barons and to the clergy. Banforests also grew up through owners of properties placing themselves and their possessions under the protection of kings or bishops or other powerful barons and giving in exchange this hunting right, and in various other ways. At the same time the headmen of the Mark (Obermärker, Graf, Waldgraf), who from being elected officers of the people had become officials of the king, began to exercise, by virtue of their office, the jurisdiction of the king, and declaring the ban for their own or their friends’ benefit, excluded the Märker from their ancient right to hunt and fish freely over the territory of the Mark.

While in this way the freedom of the communal owners was undermined, the institution of banforests had nevertheless its value in that it led to forest protection, restriction in forest use and restriction in clearing, all this, to be sure, merely for the benefit of the chase. Special officers to guard the rights of the king, forestarii, chosen from the free and freedmen, and also superior officers, forestmasters, were instituted, to administer the chase and enforce the restrictions which went with it.

Gradually, with the loss of property rights, there came also a change in the political rights of the märker or commoners, through the large barons interfering with self-government, assuming for themselves the position of Obermärker, appointing the officials, and issuing strict forest ordinances to regulate the cutting of wood; finally, the original right which belonged to every commoner of supplying himself with wood material, became dependent upon permission in each case, and thus his title to ownership became doubtful.

Undoubtedly also through the influence of Roman institutions with which the Franks under their Merovingian kings came into close contact, there arose that social and political institution which became finally known as the feudal system. By the grants of lands which the kings made out of their estates to their kinsmen and followers with the understanding that they would be faithful and render service to their masters, a peculiar relationship grew up, based on land tenure, the land so granted being called a fief or feud, and the relationship being called vassality or vassalage. This vassalage denoted the personal tie between the grantor and grantee, the lord and the vassal; the lord having the obligation to defend the vassal, and the vassal to be a faithful follower of his lord. Similar relationship arose from the surrender by landowners of their estates to the church or to other powerful barons, to be received back again as fiefs and to be held by them as tenants in exchange for rent or service. In this way a complete organization of society developed in which, from the king down to the lowest landowner, all were bound together by obligation of service and defence, both the defence and service being regulated by the nature and extent of the fief. Finally, all kinds of property of whatever nature, as well as official positions which would give an income, were subject to be treated as fiefs. The obligations of the recipient were of various nature, but finally service in army or court became the main one, giving rise to the class of knights (Ritter) or barons, while the fiefs to the small farmer gave rise to the class of peasants (Bauern, this name appearing first in 1106 under Conrad II).

The fiefs of the higher class, while at first given only to the individual, became early hereditary, and hereditary succession to estates and offices generally became the rule. Primogeniture in the succession to the estates did then not as in England prevail in Germany; instead, either tenancy in common, or else equal division among the sons was practised. As a result the very many small principalities came into existence in the 14th and 15th centuries, these growing smaller and smaller by subdivision. The first to institute the primogeniture rule by law was the house of Brandenburg (in the 15th century).

In addition to the class of peasants and knights, there came into existence a third class, the burghers, when, by the order of Conrad I in the beginning of the 10th century, towns were built with walls and towers for defence against the encroachments of the Huns, who endangered the eastern frontier Mark. In order to encourage the settlement of these towns, any slave moving to town was declared a freeman; and the cities became free republics; gifts of land, including forest areas, were made to the cities, and the development of industries was encouraged in every way. These cities, favored by the kings, and, having become rich and powerful, in the later quarrels of the kings with the lawless nobility, gave loyal support with money and arms. In return for their loans, the forest properties of the kings were often mortgaged to the burghers; and, failing of redemption, were often forfeited to them. In this way and through purchases the city forests came into existence.

Still other property conditions arose when, under Otto the Great (960), colonization of the eastern country beyond the Elbe was pushed. In these cases, the Mark institution was absent, although the colonists did often become part owners in the king’s forest, or acquired parts of it as common property, or else secured rights of user in the nearest royal forest.

By the end of the period, due to these various developments, a great variety of property conditions in forest areas had developed, most of which continue to the present time, namely royal properties, which by the end of the eighteenth century and the beginning of the nineteenth were in part to become state property; princely and lordly possessions under separate jurisdiction, with or without entail, and mostly encumbered with rights of user; allodial possessions (held independent of rent or service); municipal possessions owned by city corporations; communal properties, the remnants of the Mark; and farmers’ woodlots (Bauernwald), resulting from partitions of the Mark.

All these changes from the original communal property conditions did not, of course, take place without friction, the opposition often taking shape in peasants’ revolts; hundreds of thousands of these being killed in their attempts to preserve their commons, forests and waters free to all, to re-establish their liberty to hunt, fish and cut wood, and to abolish tithes, serfdom and duties.